Raghubar Dayal, J.
1. This second appeal arises out of a suit for accounting under Section 33, Agriculturists' Relief Act. The debtor applicant claimed the benefit of the provisions of the Debt Redemption Act.
2. The defendant mortgagee contested the suit on two grounds. One was that the Debt Redemption Act did not apply as the land mortgaged was situated within the limits of the Notified Area of Basti. The other was that nothing of the principal had been paid up from usufruct.
3. Both Courts held that the Debt Redemption Act applied. The trial Court found Rs. 1989-4-0 still due to the mortgagee. The first appellate Court found RS. 2202-8-3 were due. The difference in the calculation by the two Courts lay in the amount allowed for the costs of production. Both the Courts held the profits to be equivalent to five times the rental according to the rent fixed under Section 110, U.P. Tenancy Act.
4. The two points urged in appeal are practically the same. On the first point I agree with the contention for the appellant that the Debt Redemption Act does not apply to this case. The provisions of Section 9, Debt Redemption Act would apply if the present suit be a suit to which the Debt Redemption Act applied. Such a suit is defined under Section 2, Clause (17), Debt Redemption Act, as a suit or proceeding relating to a loan. The word 'loan' is defined under sub Section (9), Section 2 of the Act as an advance in cash or kind recoverable from an agriculturist or some other person. We are here concerned with the word 'agriculturist' as the debtor applicant does not answer the description of any other person in the definition of the word 'loan.' The word 'agriculturist' is defined in Sub-clause (3) of Section 2 thus: 'Agriculturist means a proprietor of a mahal or of a share in or portion of a mahal or tenant.' The debtor applicant is not a proprietor. He can be a tenant. The word 'tenant' is not defined under the Debt Redemption Act. In Clause (18) of Section 2 of the Act the word 'tenant' is said to include certain persons. This clause thus enlarges the scope of the word 'tenant.' For the definition of the word 'tenant' we have to go to the provisions of the U. P. Tenancy Act in view of Section 2, Clause (1), Debt Redemption Act. Section 3, Clause (23), U.P. Tenancy Act, defines the word 'tenant' to mean a person by whom rent is, or but for a contract express or implied would be, payable. The word 'rent' is defined in Clause (18) of Section 3, U. P. Tenancy Act. It means whatever is, in cash or kind, or partly in cash and partly in kind, payable on account of the use or occupation of land or on account of any right in land, and in chap, in, except when the contrary intention appears, includes sayar. The word 'rent' used in the Debt Redemption Act does not include sayar. In view of Section 2, Clause (14), the word 'land' used in the definition of 'rent' in the Tenancy Act is, in my opinion, not to be given the meaning assigned to it under Section 8, Clause (10), U.P. Tenancy Act, but is to be given the meaning given in Clause (8), Section 2, Debt Redemption Act, 'Land' in this clause of the Debt Redemption Act means land on a mahal in the United Provinces, but does not include land occupied by building or appurtenant thereto or land within the limits of any municipality, cantonment or notified area. It follows, therefore, that the applicant debtor being a tenant of land in a notified area is not a tenant as contemplated in Section 2, Clause (3), Debt Redemption Act, and is consequently not an agriculturist as defined in the Debt Redemption Act. It follows further that the advance taken by him from the defendant appellant does not answer the definition of the word 'loan' given in the Debt Redemption Act and that the present suit is not a. suit to which the Debt Redemption Act applies. I, therefore, hold that the Debt Redemption Act does not apply to the present suit.
5. The second question urged in appeal is that the procedure adopted for the calculating of profits by the Courts below is not the correct procedure. What is done by the Courts below is that the circle rate, which presumably is the sanctioned rate under the U.P. Tenancy Act, has been used in calculating the letting value of the land in the possession of the mortgagee. Profits have been calculated at if times of the letting value This multiple is arrived at in the following manner. The gross profits are taken to be five times the sanctioned rate as the rent-rate officer is enjoined to fix the rate at not more 'than 20 per cent, of the estimated gross profits. 25 per cent, of the gross profits is taken to be equivalent to the costs of production, thus leaving if times the letting value as the net profits of the person in possession. In the special circumstances of this case the Court below calculated the cost 61 production at 33 1/3rd per cent, instead of 25 per cent. This mode of calculation appears to be prevalent in Basti district. It was held to be an incorrect way of calculating profits of land. In civil Revision Order 325 of 19441 this mode of calculation was held to be wrong. In a previous judgment in Kartar Singh v. Ghulam Mohiuddin Second Appeal No. 228 of 1943 a similar method of calculation was held to be an impossible basis of calculation. In Sant Ram Missir v. Ram Bilas Missir : AIR1944All283 it was observed:
If we know or have a method of knowing the precise amount which the mortgagee has realised out of the land in his possession, it is those profits which must form the basis of calculation under Section 9, U.P. Debt Redemption Act or Section 33, Agriculturists' Relief Act or even Section 233(2), U.P. Tenancy Act of 1939.
6. It appears that the parties in the present case led evidence about the actual produce of the land in suit during the period the mortgagee was in possession. The Courts below have considered this evidence to be so unreliable as not to deserve any discussion in the judgments. Oral evidence about the actual produce in the period from 1930 to 1944 is bound to be not much good. The second best way of calculating the profits is 'the letting value of the land in suit. The letting value too for this period can be better determined from the sanctioned rates than from any oral evidence to be led by the parties about the possible rental the land could have fetched during the period of accounting In this view of the matter, I am of opinion that it is no use to remand the case for further evidence about the actual profits of the land in suit. It is, however, necessary to obtain a finding from the Court below about the amount due after calculating the profits of the mortgagee appellant from the land he had been in possession of during the period in suit. I, therefore, frame the following issue and remit it to the Court below for decision within three months:
What is the amount due to the defendant appellant from the applicant debtor on accounting under Section 83, Agriculturists' Relief Act, taking the principal to be what has been determined by the Courts so far and calculating the receipts of the mortgagee from the land he had been in possession of on the basis of its letting value calculated at the sanctioned or circle rates during the period in suit?
7. The parties will be allowed to lead evidence on the question of the sanctioned or circle rates only. On receipt of the finding in this Court, ten days will be allowed for filing objections.