B. R. ARORA, J. - (1.) THIS revision petition is directed against the order dated May 14, 1990 passed by the Munsif and Judicial Magistrate, First Class, Sanchore, by which the learned Munsif rejected the objections filed by the judgment -debtor and directed that the decretal amount can be recovered from the judgment-debtor only to the extent he inherited the property of his father, i. e. 30 Bigha 15 Biswas of land.
(2.) DECREE-holder Sanwai Chand and others, on April 9, 1984, filed an application for the execution of the decree in the Court of the Munsif and Judicial Magistrate, First Class, Sanchore. The judgment-debtor Birda contested the application and filed objections. It was stated in the application that he is the marginal farmer and it is an year of draught and the execution of the decree may be suspended and some time may be granted to him for filing a certificate that he is a marginal Farmer. He thereafter filed the certificate issued by the Tehsildar (Land Records), Sanchore. It was certified by the Tehsildar that Birda S/o Dharma is a marginal farmer as defined under the Rajasthan Scheduled Debtors (Liquidation of Debts Act, 1976 (hereinafter referred as 'the Act' ). The decree-holders, in support of their case, examined DHW 1 Sanwal C and, DHW 2 Bhanwar Lal and DHW 3 Bhagirath. The judgment-debtor, in support of his case, examined himself as JDW 1, The learned Munsif, after considering the evidence produced by both the parties on record rejected the objection filed by the judgment-debtor and ordered for the recovery of the amount in the execution of the decree only to the extent of the value of the property which he inherited from his father. It is against this order that the present revision-petition has been filed by the plaintiff. Heard learned counsel for the parties. The learned counsel for the petitioner contended that the judgment-debtor filed the certificate issued by the competent authority showing the petitioner as the marginal farmer, under the Act and, therefore, the presumption should have been drawn in his favour that he is a scheduled debtor and the burden of proving to the contrary shall lie on the creditor, while in the present case the learned lower Court has not drawn such presumption and placed the burden on the petitioner to show that he is a scheduled debtor. The next contention raised by the learned counsel for the petitioner is that while deciding the question of the execution of the decree, the learned lower Court should have considered the case of the petitioner that he is a scheduled debtor and not the case of the petitioner's father because the decree is being executed against the petitioner. The next contention raised by the learned counsel for the petitioner is that the learned lower Court has misread the evidence on record and arrived at a wrong finding. It was, also, argued by the learned counsel for the petitioner that according to Section 50 of the Code of Civil Procedure, the legal representatives of the deceased are liable only to the extent of the property of the deceased which has come to their hand and not beyond that. Lastly, it is contended by the learned counsel for the petitioner that in view of the provisions of Section 37 of the Rajasthan Tenancy Act, the right of a tenant in agricultural hoarding is not liable to be seized, attached or sold by process of any civil Court and the learned lower Court committed an error in directing for the execution of the decree against the agricultural land of the petitioner. The learned counsel for the decree-holders, on the other hand, has supported the judgment passed by the learned lower Court. I have considered the rival submissions made by the learned counsel for the parties. The first point, which requires consideration is : whether the learned Munsif was justified in not treating the petitioner as the marginal farmer and what will be the effect of the provisions of Sections 4 and 6 in the case of the petitioner ? It is not in dispute, as is clear from the evidence produced by both the parties that the petitioner inherited 30 Bighas 15 Biswas of land from his father. 25 Bighas 10 Biswas of land is in village Jajusan while 5 Bighas 5 Biswas land is situated in village Maidha. This stands proved from the evidence of the Patwari Bhanwar Lal DHW 2 and Bhagirath DHW 3. DHW 2 Bhanwar Lal in his statement, has stated that he is doing the additional work of Patwar Circle Janwiand village Maidha is situated in this Patwar Circle. He has stated that in Khasra No. 140,32 Bighas 13 Biswas of land has been shown in the name of Dharma. In Khasra No. 216, 7 Bighas 9 Biswas of the land and in Khasra No. 226, 12 Bighas 8 Biswas of land have been shown in the name of Dharma's two sons, viz. , Birda and Jag Singh and 10 1/2 Bighas of land comes to the share of both these brothers. Thus 5 Bighas 5 Biswas of land in village Maidha, according to this witness, comes to the share of Birda (petitioner ). According to D IW 3 Bhag rath, Patwari of Patwar Circle, Aadetar, in which the Patwar Circle of village Jajusan falls, has stated that 25 Bighas 11 Biswas of land in this Patwar Circle came to the share of the petitioner Birda. Even the petitioner himself filed a certificate issued by the Tehsildar (Land Records), Sanchore, to show that he is a marginal farmer, in which the land which came to share in village Jajusan, has been shown as 25 Bighas 11 Biswas. The presumption, which could be drawn under Section 6 of the Act is not an unre-butable presumption but it can be rebutted by the evidence Even the presumption as suggested by the petitioner that he is a scheduled debtor should be drawn in his favour after he has produced the certificate in his favour under Section 5. The provisions of Section 6 are only to the extent that when once the certificate issued in favour of a particular person under Section 5 is produced then the Civil Court shall presume that the debtor is a scheduled debtor and the burden to the contrary shall lie on the creditor. According to Sec-tion 6, it is only the shifting of the burden and the creditor has to prove that the debtor is not a scheduled debtor. From the evidence produced by the decree-holder, as discussed by me above, as well as the appreciation or" the evidence made by the learned lower Court, the non-petitioners/ decree-holders have discharged their burden and clearly proved that the judgment debtor is not a marginal farmer as he is having the land in excess of the land as provided in the definition of "marginal Farmer" in Section 2 (f) of the Act. According to Section 2 (f) of the Act, a marginal farmer means an agriculturist who holds land as a Khatedar and cultivates it personally. One Hectare of land is equivalent to 2. 471 acres. From the evidence produced by the decree-holder, it has come on record that the petitioner inherited 30 Bighas 15 Biswas of Barani land which is much in excess of the land and, therefore, the petitioner cannot be said to be a marginal farmer. The authorities cited by the learned counsel for the petitioner : Mohan Lal vs. Jethmal (1) and Ahmed Bux Vs. M/s. Bhimraj Modi Lal (2), thus, do not help the petitioner as the-non petitioner/decree-holders have discharged their burden and proved from the evidence on record that the petitioner does not fall within the definition of the "scheduled debtor".
(3.) THE next contention raised by the learned counsel for the petitioner is that while ordering for the execution of the decree against the petitioner, the learned lower Court should have considered the case of the petitioner : whether he falls within the definition of "scheduled debtor" or not and for this parpose he should have considered the question whether the petitioner is a marginal farme ? That question need not to be gone into in the present case as I have already observed that from the evidence produced by the decree-holder, it has been proved that the petitioner is not a marginal farmer and, therefore, he cannot be said to be a scheduled debtor under the provisions of the Act. The next question which requires consideration in the present case is: whether the learned lower Court has mis-read the evidence on record or not, as argued by the learned counsel for the petitioner. 1 have gone through the statement of all the four witnesses produced by both the parties and have considered the other evidence produced by the parties and, also, perused the order passed by the learned Court below and in my view, the learned lower Court has not mis-read the evidence. The appreciation of evidence made by the learned lower Court, is perfectly just and proper. Regarding the applicability of Section 50 C. P. C. suffice it to say that the learned lower Court in its order dated May 14, 1991, has directed that the judgment-debtor is only liable to pay the amount upto the extent which he inherited from his father. The order passed by the learned lower Court is, thus, perfectly in accordance with Section 50 (2) of the Code of Civil Procedure. The liability of the judgmsnt-debtor (the petitioner in the present case) has been limited only to the extent of the value of the 30 Bighas 15 Biswas of land, which he inherited from his father. ;