Raghubar Dayal, J.@mdashThis second appeal arises out of a suit for accounting under Saction 33, Agriculturists'' Relief Act, The debtor-applicant claimed the benefit of the provisions of the Debt Redemption Act.
2. The Defendant mortgagee contested the suit on two grounds. of a was that the Debt Redemption Act did not apply as the land mortgaged was situated within the limits of the Notified Area of Basti. The other was that nothing of the principal bad been paid up from usufruct.
3. Both Courts held that the Debt Redemption Act applied. The trial Court found Rs. 1,98940 still due to the mortgagee. The first appellate Court found Rs. 2,202-8-3 were due. The difference in the calculation by the two Courts lay in the amount allowed for the costs of production. Both the Courts held the profits to be equivalent to five times the rental according to the rent fixed u/s 110, U. P. Tenancy Act.
4. The two points urged in appeal are practically the same. On the first point I agree with the contention for the Appellant that the Debt Redemption Act does not apply to this case. The provisions of Section 9 of the Debt Redemption Act would apply if the present suit be a suit to which the Debt Redmption Act applied. Such a suit is defined u/s 2, Clause (17) of the Debt Redemption Act as a suit or proceeding relating to a loan. The word ''loan is defined under Sub-section (9). Section 2 of the Act as an advance in cash or kind recoverable from an agriculturist or some other person. We are here concerned with the word ''agriculturist'' as the debtor-applicant does not answer the description of any other person in the definition of the word ''loan''. The word ''agriculturist'' is defined in Sub-clause 3 of Section 2 thus:
Agriculturist means a proprietor of a mohd or of a share in or portion of a mohal or tenant
5. The debtor applicant''s not a proprietor. He can be a tenant. The word ''tenant'' is not defined under the Debt Redemption Act. In Clause (18) of Section 2 of the Act the word ''tenant'' is said to include certain persons. This clause thus enlarges the scope of the word ''tenant''. For the definition of the word ''tenant'' we have to go to the provisions of the U. P. Tenancy Act in view of Section 2, Clause (1) of the Debt Redemption Act. Section 3, Clause (23) of the U. P. Tenancy Act defines the word ''tenant'' to mean a person by whom rent is, or but for a contract express or implied would be payable. The word ''rent'' is defined in Clause (18) of Section 3 of the U. P. Tenancy Act. It means whatever is, in cash or kind, or partly in cash and partly in kind, payable on account of the use or occupation of land or on account of any right in land, and in Chapter VII, except when the contrary intention appears, includes sayar. The word ''rent'' used in the Debt Redemption Act does not include sayar. In view of Section 2, Clause 14, the word ''land'' used in the definition of ''rent'' in the Tenancy Act is, in my opinion, not to be given the meaning assigned to it u/s 3, Clause (10) of the U. P. Tenancy Act, but is to be given the meaning given in Clause (8). Section 2, Debt Redemption Act. ''Land'' in this clause of the Debt Redemption Act means land in a mahal in the United Provinces, but does not include land occupied by building or appurtenant thereto or land within the limits of any municipality, cantonment or notified area. It follows, therefore, that the applicant debtor being a tenant of land in a notified area is not a tenant as contemplated in S. 2, Clause (3) of the Debt Redemtpion Act and is consequently not an agriculturist as defined in the Debt Redemption Act. It follows further that the advance taken by him from the Defendant Appellant does not answer the definition of the word ''loan'' given in the Debt Redemtion Act and that the present suit is not a suit to which the Debt Redemption Act applies. I therefore, bold that the Debt Redemption Act does not apply to the present suit.
6. The second question urged in appeal is that the procedure adopted for the calculating of profits by the Courts below is not the correct procedure. What is done by the Courts below is that the circle rate, which presumably is the sanctioned rate under the U. P. Tenancy Act, has been used in calculating the letting value of the land in the possession of the mortgagee Profits have been calculated at 3 3|4 times of the letting value. This multiple is arrived at in the following manner. The gross profits are taken to be five times the sanctioned rate as the rent-rate officer is enjoined to fix the rate at cot more than 20 per cent of the estimated gross profits. 25% of the gross profits is taken to be equivalent to the costs of production, thus leaving 3 3/4 times the letting value as the net profits of the person in possession. In the special circumstances of this case the Court below calculated the cost of production at 33 l/3rd per cent instead of 25 per cent. This mode of calculation appeals to be prevalent in Basti district. It was held to be an incorrect way of calculating profis of land. In Civil Revision No. 325 of 1944 this mode of calculation was held to be wrong. In a previous judgment in second appeal No. 228 of 1943 a similar method of calculation was held to be an impossible basis of calculation. In Sant Ram Misir v. Ram Bilas Misir 1914 A. W. R. (H C) 319, it was observed:
If we know or have a method of knowing the precise amount which the mortgagee has realised out of the land in his possession, it is those profits which must form the basis of calculation u/s 9 of the U. P Debt Redemption Act Or Section 38 of the Agriculturists'' Relief Act or even Section 233 (2) of the U. P. Tenancy Act of 1939
7. It appears that the parties in the present case led evidence about the actual produce of the land in suit during the period the mortgagee was in possession. 1 he Courts below have considered this evidence to be so unreliable as not to deserve any discussion in the judgments. Oral evidence about the actual produce in the period from 1930 to 1944 is bound to be not much good. The second best way of calculating the profits is the letting value of the land in suit. The letting value too for this period can be better determined from the sanctioned rates than from any oral evidence to be led by the parties about the possible rental the land could have fetched daring the period of accounting. In this view of the matter, I am of opinion that it is no use to remand the case for further evidence about the actual profits of the land in suit. It is, however, necessary to obtain a finding from the Court below about the amount due after calculating the profits of the mortgagee Appellant from the land he had been in possession of during the period in suit. I, therefore, frame the following issue and remit it to the Court below for decision within three months:
What is the amount due to the Defendant-Appellant from the applicant debtor on accounting u/s 33, Agriculturists'' Relief Act, taking the principal to be what has been determined by the Courts so far and calculating the receipts of the mortgagee from the land he had been in possession of on the basis of its letting value calculated at the sanctioned or circle rates during the period in suit.
8. The parties will be allowed to lead evidence on the question of the sanctioned or circle rates only. On receipt of the finding in this Court, ten days will be allowed for filing objections.
9. The finding of the Court below on the issue remitted is that Rs. 2,548-15-0 are due under the mortgage deed in suit on the date of the suit, that is 14th December, 1943. There is no objection against the finding which in fact is based on the admission of the parties.
10. I therefore, allow the appeal and modify the order of the Court below to the effect that a sum of Rs. 2,548-15-0 will be substituted for Rs. 2,202-8-3 in the decree of the Court below.
11. The Appellant will further get his proportionate costs of this Court.
