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Judgment
Ross, J.—This is an appeal by the original owner of a property which was sold at a revenue sale on 6th June 1919, and purchased by the respondent who got delivery of possession on 19th September 1919. The original owner sued to set aside the revenue sale and got a decree and recovered possession on 30th August 1921. The purchaser at the revenue sale appealed against that decree and was successful with the result that the decree was set aside and he was restored to possession. He then sought restitution with regard to the period during which he was out of possession viz., from 30th August 1921 until 15th October 1925. A Commissioner was appointed to ascertain the amount of mesne profits and in ascertaining that he entered into the question of possession of 45 bighas of zerait land which is the principal part of the property.
He recorded evidence and came to a finding and the learned Subordinate Judge has acted upon that evidence recorded by the Commissioner. Now it was not within the scope of the Commissioner''s duty to decide the question of possession nor of the learned Subordinate Judge to delegate his powers in respect thereof to the Commissioner. The Commissioner was not competent to take evidence on this point nor was the learned Subordinate Judge competent to act upon the evidence taken by the Commissioner on this point. So far as his finding with regard to possession is concerned, his decision is, therefore, ultra vires and illegal and must be set aside.
The question of mesne profits is independent altogether and that was properly within the competency of the Commissioner; but before dealing with the claim on this point, it is necessary that a finding should be arrived at by the learned Subordinate Judge in accordance with law as to who was in possession of the 45 bighas of zerait land during the period under claim.
It is necessary, therefore, to remand this appeal for a finding on this point. Both parties will be at liberty to adduce evidence; and the learned Subordinate Judge will return his finding on the point to this Court within two months from the date on which he receives the record.
Das, J.
I agree.