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Bakhtawar Lal and anr. Vs. Sheo Prasad and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All70; 42Ind.Cas.720
AppellantBakhtawar Lal and anr.
RespondentSheo Prasad and ors.
Excerpt:
civil procedure code (act v of 1808), order xxvi, rules 9, 16, 17, 18 - applicability of order to emits under agra tenancy act--agra tenancy act (ii of 1901), section 164--suit for share of profits--commissioner, report of, admissibility of. - - 2. the result is that the appeal must fail, and we dismiss it accordingly with costs......unless it can be shown to be open to exception on some legal ground. the point taken is that the learned district judge has based his decision upon the report of a certain commissioner appointed by the assistant collector, though the assistant collector himself had declined to act upon that report, which was open to exception. upon various grounds. the learned district judge has discussed this matter at length and he has fully realised that the report of the commissioner must be accepted with caution. the question which we have to determine, however, is simply whether it is admissible in evidence. the provisions of order xxvi of the civil procedure code are applicable to suits under the tenancy act. in view of rules 9, 16, 17 and 18 of the aforesaid order we are not prepared to say.....
Judgment:

1. This is an appeal by the defendants in a suit for profits. The plaintiff's claim has been decreed, upon a finding that the evidence on the record is sufficient to prove that at least 90 percent, of the recorded rental during the years in suit was actually realised by the lambardar, the father of the defendants appellants. We cannot interfere with that finding of fact, unless it can be shown to be open to exception on some legal ground. The point taken is that the learned District Judge has based his decision upon the report of a certain Commissioner appointed by the Assistant Collector, though the Assistant Collector himself had declined to act upon that report, which was open to exception. upon various grounds. The learned District Judge has discussed this matter at length and he has fully realised that the report of the Commissioner must be accepted with caution. The question which we have to determine, however, is simply whether it is admissible in evidence. The provisions of Order XXVI of the Civil Procedure Code are applicable to suits under the Tenancy Act. In view of rules 9, 16, 17 and 18 of the aforesaid Order we are not prepared to say that the report of the Commissioner was inadmissible.

2. The result is that the appeal must fail, and we dismiss it accordingly with costs.


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