RAGHUPAT TEWARI Vs. PANDIT NARBADESHWAR PRASAD TEWARI

JUDGEMENT

(1.) I agree with the contention of Sushil Madhab Mnlliok who appears on behalf of the respondents that this is a question of fact and therefore I regret having to take the course I am bound to take in this case. In my judgment the case must be remanded to the learned Subordinate Judge. Mr. Sinha who appears on behalf of the appellants contends that the learned Judge in the Court below was not entitled, in spite of the remand order, to take into consideration a judgment in the previous case and the Commissioner's report which was made in that case, having regard to the fact that the judgment was not inter prates.

(2.) Now, as regards the Commissioner's report, there can be no possible doubt. The Commissioner's report is nothing more than a piece of evidence used in the case and, if the Commissioner's report in a previous action to which one of the parties in the present action was not a party was admissible, then there is no reason why all the evidence in the previous suit should not be admitted, even although the party affected thereby had no opportunity to cross-examine the witnesses and thus test their veracity. Quite dearly the Commissioner's report was not admissible. No possible reason could be given in law to support the judgment of the learned Judge in the Court below on that point.

(3.) I should have stated that it was an action under Section 30, Clause (a) of the present Bihar Tenancy Act for enhancement of rent up to the prevailing rate and the learned Judge in the Court below has decided that the prevailing rate was Rs. 2-8-0. Incidentally I might add that he made a mistake in saying that the rent of Rs. 20-6-9 was to be increased to the extent of the prevailing rate, making a total jama of Rs. 78-0-3. In any event that is an error, and even assuming that the prevailing rate is Rs. 2-8-0, that is the total rent per bigha to which the landlord is entitled.