NAND KISHORE Vs. LALA SHIAM SUNDAR LAL

JUDGEMENT

(1.) This is an appeal by a defendant lambardar in a suit for profits filed in the Revenue Court under Section 226, Agra Tenancy Act. The suit was with respect) to the profits of 1338 Fasli and was instituted so far book as on 31 July 1934. Though more then three years have elapsed since the date of the institution of the suit, it is not even now possible to finally settle the controversy between the parties and and this is due solely to the fact that the learned Assistant Collector, who tried the suit, displayed a remarkable ignorance of the elementary provisions of law as to the method of recording evidence and abdicated his functions by appointing a Commissioner to whom was delegated the duty of deciding one of the cardinal issues in the case. The plaintiff claimed profits on the basis of gross rental and further claimed a share in certain amounts that he alleged were realized by the defendant lambardar and were not dictated by him in the siaha prepared by the patwari. The plaintiff alleged that the defendant has realized nazrana on letting out lands to new tenants and also on allotting building sites to certain tenants. The plaintiff further alleged that a sum of Rs. 89 should be added to the gross rental on account of rents of certain holdings which were shown in the patwari's papers as without settlement of rent. In short the plaintiff's case was that he was entitled to a decree on the basis of gross rental and further to a share in the amounts that were realized by the defendant over and above the recorded rental.

(2.) The defendant contested the suit on the usual pleas that are raised by lambardars in such Quits. He alleged that notwith standing the exercise of due diligence by him, he could not realize the rents in full. He denied the allegation of the plaintiff as to the realization of nazrana and of other items referred to above and contended that the plaintiff was entitled to a decree only on the basis of actual collections made by him. One of the issues framed by the Assistant Collector was as follows: How much of the actual collections for lent made for 1338 Fasli has been concealed by the defendant if at all

(3.) On 12 September 1934, the Assistant Collector, on the application of the plaintiff, appointed one Munshi Bala Sahai Mukhtar as Commissioner and directed him to make an enquiry from the tenants and then submit a report as to the amounts that the defendant may have realized in 1338 Fasli on aooount of nazrana etc, and which amounts were not shown in the Siaha prepared by the patwari. The Commissioner proceeded to the village and made what may be characterized as secret enquiries. He summoned the tenants and recorded their statements behind the back of the parties without affording the par. ties an opportunity to cross-examine those tenants. He then submitted a report to the effect that certain items on account of nazrana etc had been realized by the defendant and were not shown in the Siaha. The learned Assistant Collector accepted the Commissioner's report in part and moulded bis decree accordingly. The parties were dissatisfied with the decree of the trial Court with the result that the defendant filed an appeal and the plaintiff filed a cross-objection in the lower Appellate Court. In that Court it was contended on behalf of the defendant that the report of the Commissioner based as it was on confidential enquiries alleged to have been made by him was inadmissible in evidence and could not be made the basis of the decision of the case. The learned Judge of the lower Appellate-Court overruled this contention and held that in view of the provisions of Rr. 16 and 17, Order 26, Civil P.C. it was open to the Commissioner to examine witnesses in the absence of the parties. The learned Judge then proceeded to consider the various items that had been allowed by the Assistant Collector and based his decision as regards most of the items entirely on the report of the Commissioner. He disagreed with the Assistant Collector as-regards certain items and varied the decree-passed by the Assistant Collector with respect to those items. As a result of his findings, he dismissed the appeal filed by the defendant and allowed in part the cross, objection preferred by the plaintiff. I am wholly unable to agree with the learned Judge of the lower Appellate Court. Order 26, Civil P.C. contains detailed provisions as regards the issue of commissions :(1) to examine witnesses, (2) for local investigation, (3) to examine accounts and (4) to make partition.