Musammat Rameshwar Kuer vs Lachman Prasad Sahi and Another

Wort, J.—This is an appeal against the decision of the learned Subordinate Judge of Gaya in a suit brought by the plaintiffs against the defendant for nakdi and bhaoli rents for the years 1326 to 1329. In this appeal no question arises regarding nakdi rent, nor is there any question with regard to the bhaoli rent for the year 1326. The learned Subordinate Judge decided that in any event the plaintiffs were not entitled to bhaoli rent for the year 1326, by reason of the fact that the plaintiffs had already recovered from the defendant''s predecessors in title (the former tenants, that is to say) for that year. The short point of the case relates to the amount of bhaoli rents for the years 1327 to 1329 only.

The allegation contained in the plaint was that as regards a portion of the lands in suit, that is to say, some, twenty-nine bighas, they had been deliberately left parti or fallow by the defendant, but in the written statement the defendant denies this allegation and states that although crops were raised, they were of a very poor quality by reason of the difficulties relating to irrigation, la the result, I think there is no real dispute as to the fact that crops were raised on the total area of land in relation to which bhaoli rent was to be paid, and there is no dispute as to that total area, being sixty bighas approximately.

The plaintiff in support of his case relied upon oral as well as documentary evidence and the learned Subordinate Judge in his judgment sets out that evidence under five heads. As regards the first head that was evidence or admissions in a former suit by one Sheosaran Singh, the learned Judge rejects it as also he rejects the evidence under the fourth head. The fourth item was the report of the Commissioner appointed to make a cutting experiment in this case in the year 1923. The learned Subordinate Judge also rejects the fifth item of evidence. Now there are two items, namely, the second and third, upon which the Court placed reliance. The first of these was a consent judgment against the tenants of the defendant in a suit for rent for the years 1320 to 1323. This suit was brought against some sixty-four tenants of which forty-two apparently appealed and in the Appeal Court, as regards these forty two tenants, the decrees were modified on the basis that for the year 1320 the defendant (she being the plaintiff in that suit) was entitled at the rate of 4 1/2 maunds, for the year 1321 10 maunds, for the year 1322 14 1/2 maunds and for the year 1323 at the rate 13 1/2 maunds of paddy.

The second item upon which the learned Subordinate Judge relies was a decision in a Section 69 proceeding in which it was found that forty-two bighas yielded some 607 maunds odd. But I do not think that he was right in so relying upon that decision for the reason that there is no distinct finding in this case that the land in relation to which Section 69 proceeding was brought was similar in any way to the land in suit. The respondents in this appeal rely upon the evidence of one of their own witnesses (P.W. No. 2) to show similarly in which he made a statement that these lands in respect of which Section 69 proceeding was taken, produced an outturn of 16-annas paddy in 1331 and 12-annas in 1326 the same was the outturn for the year 1327 as also for 1321, whereas in 1328 the outturn was 14-annas and in the year 1323, 15 annas. In my judgment that cannot be stated to be evidence of the similarity of the lands but rather, as it states in fact, the relation of the output of the respective years there mentioned as compared with the year 1331. In my judgment, therefore, the learned Subordinate Judge in relying upon the Section 69 proceeding was clearly wrong.

It comes to this, therefore, that so far as the plaintiffs'' evidence is concerned, the whole of it is rejected including the Commissioner''s appraisement in this particular case. The only part of the evidence adduced by the plaintiffs upon which the learned Judge in the Court below relies is that of the decrees obtained by the defendant against her tenants for the years 1320 to 1323. I should have said that in the defendant''s evidence there was an admission that in respect of the years in question there was an output of paddy from two to four maunds per bigha and respective rabi crops from two to two and a half maunds per bigha. Now the argument of Sir Sultan Ahmad appearing on behalf of the appellant is that in this state of affairs, the learned Subordinate Judge having rejected in its entirety the evidence of the plaintiffs, he has nothing to go upon but the admissions contained in the evidence of the defendant, and that the most that can be awarded to the plaintiffs in respect of the bhaoli rent is the amount or the quantity which is admitted by the defendant herself. In my judgment, it would be unsafe if not unjust in a case of this character, where it is clear that an estimate is to be arrived at from the materials at the disposal of the Court, to rely upon the admission of the defendant alone especially when we have some evidence in the case of what the land can produce although in earlier years. It is quite clear from this admission that it does not bear a strict relation to the actual facts of the case, that is to say, it is an under estimate on the part of the defendant of what was actually produced on this land in the years in question. That being so it seems to me that this Court is thrown back upon the decision in the suit with regard to the years 1320 to 1323 to which I have just referred. I have already stated the quantity per bigha of produce for four years, and, working out an average of the four years, the crop is approximately ten maunds per bigha. In my opinion, this would be in the circumstances of the case a fair estimate of the crop on which basis the plaintiffs are entitled to recover in this case. As I under stand the learned Counsel for the appellant is agreeable to accepting'' what I may describe as flat rate for the land which has been alleged by the plaintiffs to be deliberately allowed to remain parti as also for the lands which it is admitted on all hands are being cultivated. In the result, therefore, the plaintiffs are entitled to recover bhaoli rent at the rate of ten maunds per high a in regard to paddy and half that rate in regard to rabi. In other respects the judgment of the learned Subordinate Judge should be affirmed.

The appeal is, therefore, allowed to the extent indicated, but there will be no costs.

Ross, J.

I agree.