KRISHNA SHARAN SHUKLA Vs. BALI BHADAR SHUKLA

JUDGEMENT

(1.) This is a defendants' appeal. It arises out of a suit, under Section 33, United Provinces Agriculturists' Relief Act, for determination of the amount due under a usufructuary mortgage, dated 28.5.1902 and three subsequent mortgages, two of them executed on 12.2.1914, and one on 16.1.1919. The trial Court (Munsif of Basti) made "a preliminary decree directing accounts to be taken" and appointed a commissioner for the purpose. The commissioner filed his report. Certain objections thereto were filed by the parties and, in view of those objections, the commissioner was asked to review the calculations made by him. Then, the commissioner filed a revised report and in accordance with that report the Court declared that a sum of Rs. 1,336 and odd was due on the four mortgages. The defendants-mortgagees preferred an appeal in the Court of the District Judge of Basti challenging the mode of calculation of profits adopted by the commissioner, but the appeal was dismissed.

(2.) The trial Court had calculated the profits of the land in the cultivation of the mortgagees at "five times the circle rate rental minus 25 per cent, as cost of production". This mode of calculation was approved by the lower appellate Court. In this appeal, on behalf of the defendants appellants, the made of calculation adopted or approved by the Courts below has been challenged again; and reliance has been placed upon a case reported in Kalpu Ahir v. Mukat Nath, 1949 ALL.. L. J. 200 which was decided by one of us.

(3.) In this case it is not disputed that it is not possible to determine the amount of actual profits which might have been received by the mortgagees from the mortgaged property. The present case is from Basti, and Kalpu Ahir's case (1949) ALL, L.J. 200) was also from the same district. The mode of calculation of profits adopted in Kalpu Ahir's case, which was a suit for redemption of a usufructuary mortgage under Section 12, Agriculturists Relief Act, was the same as adopted in the present case. That was the mode usually adopted by the Courts in Basti. The reason for adopting that mode has been pointed oat by the learned Dist. J. in the judgment under appeal. He has stated: