NAND KUMAR LAL Vs. KUBER LAL

JUDGEMENT

(1.) This is a revision by Nand Kumar Lal and others against the order of the Civil Judge of Basti in a case under Section 12, U. P. Agriculturists' Relief Act.

(2.) The plaintiffs opposite parties had brought a suit for redemption under Section 12, Agriculturists' Relief Act. The main point of dispute between the parties was whether the mortgage money had been paid up by the usufruct of the property. The trial Court decreed the suit on payment of a sum of Rs. 2,210-11-0 by the plaintiffs opposite parties. Both parties appealed and the lower appellate Court varied the decree of the trial Court and reduced the amount to be paid by the plaintiffs opposite parties to Rs. 920-11-0. The applicants have come up in revision to this Court and their contention is that the two Courts below have, in calculating the usufruct, invented a fanciful rule and have, therefore, acted illegally or with material irregularity in the exercise of their jurisdiction.

(3.) A preliminary objection has been taken on behalf of the opposite parties that no revision lies. Learned counsel for the applicants, however, relies on Section 115, Clause (c), Civil P. C. which gives revisional jurisdiction to this Court in cases where subordinate Courts have acted illegally or with material irregularity in the exercise of their jurisdiction. There is no doubt that there was jurisdiction in the Courts below to decide this suit. It was also open to the Courts below to come to any conclusion as to whether the mortgage money had been paid up or not by the usufruct of the property. But in so doing, it was the duty of the Courts below to follow the rules of law. Under the law, it was the duty of the Courts below to find out the actual usufruct of the property and calculate the profits on the basis of that usufruct. The mortgage was executed in 1930 and the interest was to be equal to the usufruct. Under these circumstances, it was not necessary for the mortgagees to maintain an account of the usufruct of the property which was in their direct cultivation. Consequently, it was impossible for the Courts below to find out the actual usufruct from any accounts in the possession of the mortgagees. Failing this, there are only two other ways in which, under the law, the Courts below could discover what profits had accrued to the mortgagees out of the land in their actual cultivation : (1) by taking oral evidence or (2) by finding out what the mortgagees could have got, if they had let the land at the highest possible rate i. e. at the rate payable by sub-tenants. The Courts below, however, did not follow either of these methods for arriving at the usufruct. They have invented a rule of their own for arriving at the profits. This rule was to multiply the annual rental value which was arrived at on the basis of circle rates by five, Prom this forty per cent, was deducted as production costs and the rest was considered to be the profits. We are of opinion that this was a fanciful method of calculating and the Courts below acted with material irregularity in the exercise of their jurisdiction in adopting such a fanciful method of calculation of their own.