1. This is an application in revision under Section 115, Civil P.C. It arises out of a proceeding, under Section 12, U.P. Agriculturists' Relief Act, instituted by the plaintiff opposite-party for redemption of a usufructuary mortgage and certain deeds of further charge. The plaintiff alleged that the entire debt had been paid up out of the usufruct of the mortgaged property, while the defendants-applicants averred that the mortgage money was still, payable. Therefore, it be-tome necessary to determine the profits which the mortgagees in possession had obtained from the mortgaged property. There was no satisfactory evidence on the record to prove the amount of annual profits.
2. The Additional Munsif of Basti, who tried the case, calculated the annual profits on the basis of circle rate-he multiplied five times the circle rate by area of the plot to find out the produce and deducted 25 per cent for the cost of collection. Calculating annual profits in this manner, he found that the entire debt had been satisfied, Accordingly, he allowed redemption without payment of anything.
3. On appeal the learned District Judge of Basti approved of the method of calculation of profits adopted by the trial Court.
4. In this revision the sole point urged on ' behalf of the applicants is that the Courts below acted illegally and with material irregularity in calculating the profits from the khudkasht land at five times the circle rate of rent and that they should have been calculated on a fair rent basis.
5. The mode of calculation adopted by the Courts below was, it appears; the method usually adopted by the Courts in the district of Basti. Some cases have come up to this Court from that district; and in all of them the method was disapproved by this Court. The decisions in two cases were questioned in this Court in civil Revns. Nos. 325 and 326 of 1944, both decided by Malik J. on 3rd August 1945, There are two other cases one unreported, viz , second Appeal no. 2282 of 1943, Ram Adhar Misra v. Rup Narain Misra decided on 1st March 1945, by Hon'ble Allsop J. and other reported, viz., Mt. Pran Dei Kuntvari v. Ganga Prasad : AIR1948All54 . In all these cases the method adopted was held to be improper.
6. In civil Revn. no. 325 of 1944, decided on 3rd August 1945, Surju Prasad Singh and Ors. v. Randhir Singh and Anr. Malik J. (now C.J.) observed:
Sections 109 and 110, U.P. Tenancy Act, 1939, lay down the basis on which rent payable by a hereditary tenant or an occupancy tenant is to be fixed, and in Section 110, it is provided that it is not to exceed 20 percent, of the price of the produce. From that the Courts below have worked out the price of the produce of the land in possession 'of the mortgagees at five times the circle rate and from that they have deducted 25 percent. as the cost of production and thus worked out the net profit in the hands of the mortgagees. To my mind', the fair mode of calculation if it is not possible to find the actual value of the produce, would be to find out at what rate the land in possession of the mortgagees could be let out to non-occupancy tenants. It must be remembered that a tenant not only provides seeds and manure but gives a lot of his time and labour in ploughing and watering the field and in sowing the crops, and he also takes the risk of possible failure of crops. To estimate the cost of production at merely 25 per cent of the price of the produce would mean that a tenant gets a net profit of 75 per cent. To my mind this is an absurdly high figure.
If I may say so with respect, I entirely agree with these observations.
7. In second Appeal No. 2282 of 1943, decided on 1st March 1945 by Hon'ble Allsop J. Ram Adhar Misra and Ors. v. Rup Narain Misra, such a method of calculation was held to be an impossible basis of calculation. In Mt. Pran Dei's case : AIR1948All54 , it was held:
In determining the amount of profits realised by a mortgagee in possession it is wrong procedure to calculate those profits at 33/4 times of the letting value of the land. It is the actual produce of land during the period for which the mortgagee was in possession of the land that must form the basis of calculation under Section 33, U.P. Agriculturists' Belief Act. The second best way of calculating the profits is the letting value of the land.
8. It must, therefore, be held that the method of calculation adopted by the Courts below was wrong. The profits are now to be calculated at the rate of rent at which the land in possession of the mortgagees can be let out to non-occupancy tenants. After the lapse of such a long time it will not be possible to determine the value of the produce of the land.
9. The revision is, therefore, allowed and the decrees passed by the Court below are set aside and the suit is remanded to the trial Court for disposal after determining the profits in the manner indicated above. The cost in this Court will abide the ultimate result of the suit.