Richard Garth, C.J.
1. We regret very much that we find it necessary to remand this case, but we do so, because we are led to believe, from what the Subordinate Judge himself says, that he has made a mistake in applying the rules which have been laid down by this Court with reference to the use of jumma-wasil-baki papers.
2. There were two questions in the case: first, with regard to the rate of rent which the defendants had to pay; and, secondly, with regard to the appropriation of the payments.
3. We need not say anything as to the latter point, because we think that the Subordinate Judge was substantially right in the way in which he appropriated the payments.
4. But with regard to the first point, the Subordinate Judge says that he cannot believe the first witness who is called for the plaintiffs, because he is unable to say what is the amount of rent which he realized from the defendant in the year 1241, without referring to the jumma-wasil-baki papers.
5. Now we have had the evidence of this witness read, and it appears that he prepared the jumma-wasil-baki papers and collected the rents himself, and yet the Subordinate Judge thinks that he had no right to refer to the papers, to see how much he collected from the defendants.
6. Of course, if he collected the rents, and put down the amounts collected in these papers, he had a perfect right, in giving his evidence, to refer to the papers to refresh his memory as to the amount of the rent which he received. It must be almost impossible for any tahsildar, employed to collect rent in this way, to say what amount of rent he received in each year from a large number of tenants, unless he refers to his books, and therefore to disbelieve a man, because he is obliged to refer to his papers, is obviously wrong. Upon this ground alone we think it right to fiend the case back for re-trial.
7. Of course, the credibility of the witnesses is a question for the Subordinate Judge; and if he had disbelieved this witness or any other for a sufficient reason, we could not have interfered.
8. But as on the one hand we are bound to see that no improper use is made of these wasil-baki papers, so on the other we are bound to see that witnesses are allowed to make a proper use of them.
9. We, therefore, send the case back for re-trial upon this ground only.
10. The Subordinate Judge is no doubt perfectly right in saying that jumma-wasil-baki papers are not admissible as independent evidence taken by themselves, but when a witness is called, and he refreshes his memory from them, that is not independent evidence; and to use such papers for such a purpose is perfectly legitimate.
11. The costs of this appeal will abide the event.