1. This is a reference from the Sessions Judge, Goona arising under the following circumstances:
One Jagannath was prosecuted and during the course of proceedings some cattle were seized from him, and were delivered to one Mehendra Singh as Supardgidar. When Jagannath was acquitted the Court ordared Mahendra Singh to deliver the cattle to him. Mahendra Singh claimed Rs. 203/- for feeding the cattle. On Nazir's report the Magistrate ordered that Rs. 128/12/- be paid the Mahendra Singh by Jagannath as expenses in feeding the cattle. Jagannath went in revision to the Sessions Judge, Goona who is of the opinion that there was no contract either express or implied with Jagannath to pay this expense to Mahendra Singh. The learned Sessions Judge, therefore, recommended that the,' Magistrate's order be set aside and he should be asked to make an inquiry into the actual expenditure that was incurred by the Supardgidar, in keeping the cattle after deducting the cost of milk that was utilized by the Supard-gidar.
2. A notice was sent to the Supardgidtr Mahendra Singh but he did not appear today. I have heard arguments of Mr. Pancholi on behalf of Jagannath and Government Advocate on behalf of the Stats. I am of opinion, that the terms of Supardgidars should governs the question in this case. This Supardginame stipulated that Supardgidar will produce the cattle as soon as the Court orders him to do so. There is nothing in the contract to show that Supardgidar would be given any expenditure for keeping she-buffaloes; but I agree with the Sessions Judge that there was some understanding that in case the Supardgidar had to incur any expenditure, on principles of justice and equity, the Court would ask the owner of the cattle to suitably compensate him and that the income derived from the milk obtained from the cattle would be set off against the expenditure incurred by the Supardgidar. This will not be inconsistent with the terms of Supardginama within the meaning of proviso 2 of Section 92, Evidence Act.
3. Under the circumstances I accept the reference and exercising my powers under Section 561 A, in order to secure the ends of justice, I set aside the order of the Magistrate dated 26.2.1951 and direct him to institute an inquiry into the matter and dispose of the question according to law in the light of the observations made above.