Kishun Deyal Gope vs Ishwarnath Singh

Dawson Miller C.J.

This is an appeal from a decision of Mr. Justice Adami sitting on second appeal in which he set aside the decision of the Officiating Subordinate Judge of Patna and restored the decree of the Munsif.

The plaintiff who is the respondent in this appeal sued the defendant who is his tenant of a certain small holding in Mauza Karja, claiming produce rent for the years 1325 to 1328 F. The land was held on the danabandi system. The plaintiff''s case was that the defendant had removed the crop, that he had refused to divide it with the plaintiff and, therefore, he was liable to pay the plaintiff the value of the plaintiff''s share of the crop and if that share could not be ascertained owing to the tenant having removed it for the years in question then the produce should be deemed to have been as full as the fullest crop of the same description appraised in the neighbourhood on similar land for that harvest. I may say at the outset that the evidence on either aide was of the most meagre description. The plaintiff called one witness who he alleged, was his Patwari and who placed the out-turn of the crop at something between 18 and 22 maunds of paddy per bigha. The defendant also called a single witness who placed the outturn at between 3 and 4 maunds of paddy per bigha. There was also a claim for rabi which the plaintiff''s witness placed at between 8 and 12 maunds whereas the defendants stated that no rabi was grown at all on that particular parcel of land. The plaintiff produced certain appraisements which were incorporated in some khasras which were placed before the Court for the years in suit. These were entirely disbelieved and rejected as unreliable both by the Munsif and by the Subordinate Judge on appeal and, therefore, nothing more need be said about them. The plaintiff also tendered in evidence a report made by the Collector in proceedings u/s 40 of the Bengal Tenancy Act in which the Collector had actually gone to the spot and by a crop-cutting experiment had ascertained the outturn of a certain parcel of land in the immediate neighbourhood of the defendant''s holdings in fact I understand, adjoining, it. That report was made during the paddy harvest of the year 1329, that is to say, the year following the three years for which rent was claimed. The result of that crop-cutting experiment was to show an outturn of 14 maunds per bigha in the adjoining land which was of the same description.

The Munsif although he did not accept the plaintiff''s appraisement contained in the khasras, did rely upon the crop-cutting experiment on the adjoining land made by the Collector and relying upon that as good evidence of the outturn of the neighbouring land he made an award for rent upon an outturn of 14 maunds of paddy per bigha. With regard to the rabi he believed upon the whole of the evidence that rabi was also grown, the particular crop in this case being khesari, upon the defendant''s land and he made an award amounting to two-thirds of what the plaintiff was claiming in respect to the khesari crop.

The case then went on appeal to the Officiating Subordinate Judge of Patna who agreeing with the Munsif rejected appraisement Khasras of the plaintiff. He further disbelieved entirely the evidence given by the only witness called on behalf of the plaintiff who had described himself as a Patwari and who the learned Judge found was not his Patwari at all and who in fact appears to have known very little about the facts to which he deposed. With regard to the Collector''s report of his crop-cutting experiment made in the year 1329 F. the learned Judge considered that this document ought never to have been admitted in evidence at all and, therefore, he rejected it from consideration. It had been received in evidence as being a public document within the meaning of Section 74 of the Indian Evidence Act. The learned Subordinate Judge, however, considered that it was not a public document at all and, therefore, ought to be rejected. In the result having arrived at the conclusion that neither the appraisement khasras could be believed nor any reliance placed upon the evidence of Jogi Lal the plaintiff''s witness and having eliminated the crop-cutting report there was nothing whatever to show on behalf of the plaintiff what the outturn of the crop was nor was there any reliable evidence to show even that a rabi crop had been grown at all on this land because that had been denied by the only witness called by the defendant, but as there had been an admission on behalf of the defendant that paddy had been grown on the land and he had placed the outturn at between 3 and 4 maunds he allowed the claim in respect to the paddy at the rate admitted by the defendant. He accordingly modified the decree of the Munsif and reduced the claim very considerably.

On second appeal to this Court the matter came before Mr. Justice Adami who, differing from the learned Subordinate Judge, considered that the crop-cutting report was admissible u/s 74 of the Indian Evidence Act, and as it was practically the only acceptable evidence as to the outturn of the paddy crop he considered that when that was taken into consideration it proved the actual outturn of the land in suit for the years in question. The learned Judge does not appear to have considered any special point raised before him with regard to the rabi crop and there is nothing in the report relied upon from, which the outturn of the rabi crop even in the adjoining land can be ascertained. Nevertheless the learned Judge set aside the decision of the Subordinate Judge and ordered that of the Munsif to be restored.

It is from that decision that the present appeal has been brought. It has been argued on behalf of the appellant that the learned Judge was not justified in setting aside the decree of the Subordinate Judge and that the crop-cutting report was really no evidence which could support the outturn of the crop for the years 1325 to 1328 even if it were admissible as evidence. The section in the Bengal Tenancy Act which deals with this matter and mikes admissible evidence of the produce of neighbouring land is Section 71(4) which provides that in the circumstances which occurred in this case, namely, where the tenant removes the produce so as to prevent an appraisement, then "the produce shall be deemed have been as full as the fullest crop of the same description appraised in the neighbourhood on similar land for that harvest."

The argument is that the crop-cutting report does not show anything of the produce grown either upon the land in suit or upon land of a similar description in the neighbourhood for that harvest. In fact it was a report for the following year and in these circumstances the crop-cutting report does not entitle the plaintiff to treat the produce for the years in suit as shown in fact for the year referred to in the crop-cutting report, namely, the following year. With regard, to these two points first of all I am of opinion that this document which was prepared by the Collector in the ordinary course of his duties in proceeding u/s 40 of the Bengal Tenancy Act was a document forming a record of acts of a public officer such acts having been carried out by him in the ordinary course of his duties and as such it seems to me to fall within the provisions of Section 74 of the Indian Evidence Act. That being so it follows that it ought not to have been excluded from evidence by the learned Subordinate Judge and in the ordinary course I apprehend that before the amendment of Section 103 of the CPC by the Amending Act of 1926 the proper course would have been to remit the case to the lower Appellate Court to consider the question of the outturn in the light of this document, regarding it as admissible evidence in the case The learned Judge, however, dealt with the case in a different manner. I presume he thought that this, being practically the only reliable evidence of outturn it was unnecessary to send the case back for further consideration by the learned Subordinate Judge. However that may be since the amendment of the CPC the powers of the Court in this respect have been enlarged and now under the provisions of Act VI of 1926 Section 103 of the CPC gives the High Court on second appeal if the evidence on the record is sufficient, power to determine any issue of fact necessary for the disposal of the appeal not only in cases where that question of fact has not been disposed of by the lower Court but also in cases in which it has been wrongly determined by such Court by reason of any illegality, omission, error or defect such as is referred to in sub-s (1) of Section 100. u/s 100, subs. (1) the grounds upon which an appeal may be preferred to the High Court are stated and one of the grounds is a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits."

It is quite clear that if evidence of this sort is wrongly excluded it may have produced error in the decision of the case and under the Act as now amended the High Court has power to determine that question of fact. We have looked at the evidence given on behalf of the respective parties and we have considered the report of the Collector and it certainly seems to me that the report of the Collector which is a report of an actual fact by a person entirely unbiased in the matter is very much more reliable than the verbal evidence of either the plaintiff or the defendant as to the outturn of the crop in that neighbourhood. It is quite true that the report of the Collector is not a report for either of the years in suit. It is a report for the following year but it is at least evidence of the sort of crops that the land in the immediate neighbourhood and which in no way differs in any material particular from the land in suit can produce and if it can produce such a crop in one year in the absence of any evidence by the defendant to show that the year 1329 was an exceptionally good year or evidence that the years immediately preceding it were exceptionally bad years or indeed any evidence at all to show that they in any way differed, then I think it is very valuable evidence as to what the land in suit was likely to produce in the years 1325 to 1328. It is really the only reliable evidence upon the matter. It seems, therefore, to us that the plaintiff seeing that he is deprived of the opportunity of appraising the crop at the spot has good evidence which is of considerable value as to the amount of the produce which was likely to be grown in the years in suit. This seems to me the best class of evidence before the Court and I think it is to be relied upon certainly in preference to the oral evidence. It was upon that evidence that the learned Munsif based his decision and in arriving at that conclusion I think he was right. I think, therefore, that BO far as the paddy crop is concerned, for the report deals only with the paddy crop, the facts must be decided in the manner in which the learned Munsif decided them and that Mr. Justice Adami was right in restoring his judgment upon that part of the Case.

It has been said that the plaintiff did have an opportunity of appraising the crop* because in his plaint he alleged that he had appraised it and that the crop was so much. It is quite true that he did make such an allegation in his plaint but his evidence on this point has been rejected by the learned Subordinate Judge. It was also rejected by the Munsif who does not believe that any such appraisement was ever made. In any case the evidence of the produce during the year 1329 does appear to me to be valuable evidence as to the produce generally in the immediate neighbourhood and in the absence, as I have said, of any evidence to show that that was an exceptional year or the preceding years were in any way exceptional I think that was sufficient to justify the finding at which the Munsif arrived and with which I agree.

With regard to the rabi crop as the learned Subordinate Judge entirely disbelieved the evidence of the plaintiff and as the defendant had denied that any rabi crop was grown at all I think that the plaintiff''s claim on this part of the case must fail in the absence of any evidence which can be relied upon either that a rabi crop was grown or if grown, what the produce thereof was. It seems to me impossible to arrive at a conclusion that the plaintiff is entitled to anything in respect to the rabi crop. I consider that the only relief he is entitled to is that which was granted by the Munsif in respect to the paddy crop.

The result is that the decision of Mr. Justice Adami will be varied by confining the plaintiff''s claim to the award made by the Munsif for the paddy crop only. The appellant is entitled to the costs of this appeal in proportion to his success. The costs before Mr. Justice Adami will also be according to his success as finally decided in this Court The costs in the trial Court and the lower Appellate Court will remain as they are.

Foster, J.

I agree.