Richard Garth, C.J. (McDonell, J., concurring)
1. In this suit the plaintiff claimed to recover from the defendant under a kabuliat at a jumma of Rs. 11-1-6.
2. The defendant's case, on the other hand, was that the jumma was only Rs. 5-6.
3. The issue fixed by the Munsiff was, 'what is the amount of the jumma held by the defendant? '
4. The Munsiff found that the kabuliat was not proved. He also found that the plaintiff had not proved the jumma rate, which he claimed; but as the defendant admitted the amount to be Rs. 5-6, he gave the plaintiff a decree for that sum.
5. The case was then appealed to the Subordinate Judge, and upon going into the evidence he found that the proper amount of the jumma was Rs. 10-12-1. In arriving at that conclusion, he appears to have taken into consideration three items of evidence:
First, he says that certain collection papers for the period prior to 1288 had been filed; that it did not appear that the first Court rejected these papers as being false, and that the jumma mentioned in them in respect of the jote in question was Rs. 10-12-1,
Secondly, he says there is evidence to show that that amount had been realized, and that it had been proved by witnesses for the plaintiff that the defendant had paid rent for previous years at that rate.
6. And, lastly, he says, that the road cess papers filed before the District Judge, although not binding on the tenant, also go to show what the witnesses have proved.
7. On appeal to this Court it has been contended by the defendant that the Subordinate Judge has taken into consideration evidence that was not admissible.
8. It is said that the collection papers are no evidence per tie, and can only be used when they are produced by a person who has collected rent in accordance with them, and who merely uses them for the purpose of refreshing his memory.
9. Then again it is said that the road cess papers are not admissible against the defendant either as substantive evidence or as corroborative evidence; in fact, that the plaintiff had no right to use them against the defendant at all.
10. The learned Judge of this Court considers both these objections to be well founded, and in this we concur. But he has also raised another, point, upon which we cannot agree with him.
11. He says the proper issue in the first Court was not 'what was the amount of the jumma held by the defendant,' but whether the defendant's rent was Rs. 11-1-6, as the plaintiff said it was, or Rs. 5-6-0 as the defendant said it was? He says that it was not competent for the Munsif to raise any other issue or for the Subordinate Judge, having regard to the pleadings, to find that any intermediate sum was the correct jumma.
12. We cannot agree with this view of the matter. It does not appear what materials the Munsiff had before him at the time when he framed the issue; and, so far as we can see, that issue was probably better calculated than any other to ascertain what was the proper amount of the jumma, and to do justice between the parties. It might be that the plaintiff had overstated the jumma, or that the defendant had understated it; and if both parties were mistaken, it was surely right that the proper jumma should be ascertained in this suit, rather than that the delay and expense of another suit should be incurred. Under the present Code a Court is by no means bound, in framing the issues, by the language of the plaint and written statement. By Section 147 of the Code the issues may be framed, not only from the pleadings, but from the statements of the parties and their pleaders, when they come before the Judge; and it seems to us that the issue framed in this case was perfectly unobjectionable, and probably best adopted to do justice between the parties.
13. As to the other points, we think they afford ground, not for restoring the judgment of the Munsiff, but for sending the case back to the lower Appellate Court, in order that the proper amount of rent may be ascertained, without reference to the collection papers, and the road cess papers, which are not evidence against the defendant.
14. The Judge must decide the issue upon the other evidence in the case.
15. The costs of both hearings in this Court and of the lower Appellate Court will abide the result.