Radha Mohan Missir and Others vs Kamaldhari Missir and Others

Rowland, J.—In this second appeal there was a remand under Order 41, Rule 25 for findings as to whether anything was due to the defendant on account of interest, and if so how much. In the order of remand it was pointed out that the burden of proof was on the defendant on both issues. The Subordinate Judge has returned his finding that the defendant is entitled to interest at Rs. 17-12 a year from 1275 to 1321 F.S. as against which the plaintiff is entitled to credit for the period following the year 1321 F.S. to the extent of the excess of Rs. 72-9 per annum estimated income over the interest, on the zerpeshgi money and the Government demand. Both sides have presented objections against these findings. In argument, however it was undisputed that the defendants are entitled to reckon the annual income of the property at the thica rent at which it was let out during the years 1275-1279 and 1308-1321 as proved by documentary evidence, that is to say at Rs. 39. The plaintiff is aggrieved by the finding that for the years 1280-1307 the defendant is entitled to reckon the income of the property at the same rate while both parties are dissatisfied with the estimate of outturn at Rs. 72-9 for the period from 1322 onwards. As regards the period from 1280 to 1307 the Subordinate Judge has stated:

There is no definite evidence as to the income of the property during the period from 1280 1307 F.S.

Later however he says that:

In view of the satisfactory evidence regarding the antecedent and subsequent period and in the absence of any satisfactory evidence on the side of the plaintiff regarding the income of the property during the intervening period,

he thinks it safe to accept the defendant''s evidence that the property remained in possession of the thicadar throughout. For the respondent it is said that this is a finding of fact. But the plaintiff''s contention is that there was no evidence on which the Subordinate Judge could come to this finding. The Subordinate Judge himself has said that there is "no definite evidence" and again that there is "no satisfactory evidence," and he appears to have lost sight of the clear direction in the order of remand that the burden of proof was on the defendants. u/s 102, Evidence Act, the burden of proof in any proceeding lies on that person who would fail if no evidence wore given. This means that when the burden of proof lies on a party that party must fail if he does not discharge the burden by giving evidence. We have referred to the evidence and find that there is no evidence that the property remained in possession of thicadar during the period under consideration. There are statements of two witnesses who were not alive until within the last 5 or 7 years of the period we are considering, and who admit that their knowledge is hearsay. That is no evidence at all. Therefore the only possible finding is that the defendants have not proved that they are entitled to charge anything on account of interest for the period from 1280-1307 F.S. For that period it must be held that the income of the property was sufficient to satisfy all the interest accruing from year to year on the zerpeshgi money.

As to the other period from 1322 onwards it is pointed out for the plaintiff that the learned Subordinate Judge has not considered the report of the commissioner in which the normal outturn is estimated at a rate which works out at Rs. 250 per annum. It is also contended that on the evidence for the defendants themselves the outturn has been estimated to be 2� to 4 maunds per bigha which would work out to about Rs. 140 per annum at Gazette rates assuming 2� maunds per bigha to have been the outturn in every year. Therefore it is said that the estimate should not be lower than that arrived at on the admission of the defendants. Against this the respondents contend that the finding is a finding of fact; that the defendants have not admitted that there was an outturn of 2� to 4 maunds in every year only in good years and have said that the crop failed in some years; therefore there is no admission of the defendants as to any average outturn. It is not possible in the circumstances to say that the Subordinate Judge ought to have fixed a higher rate of outturn on the admission of defendants.

As regards the commissioner''s report, mere omission to consider a particular piece of evidence will not alter the character of a finding of fact, and I think we have to accept the estimate of the outturn at Rs. 72-9-0 as a finding of fact, even if it is one which, if appeal lay on the facts, we should consider unsatisfactory for failure to take into account the commissioner''s report. The defendants have also objected to the finding of the Subordinate Judge that they are not entitled to add to the mortgage money a sum of Rs. 240 said to have been paid by them on account of cess accruing from them. This question has been examined by the Subordinate Judge who has found that the amount Rs. 9-8-0 which the zerpeshgidar was to pay on account of Government demand includes the revenue and cess and has found that the defendants could not prove that more than this was payable as revenue and cess on account of the property. This finding is a clear finding of fact which we have to accept.

In the result the order should be, in my opinion that on an account being taken the defendant is entitled to add to the zerpeshgi money Rs. 17-12-0 on account of interest for each of the years 1275-1279 and 1308-1321; that the defendant is not entitled to add anything on account of interest for the period from 1280 to 1307; and that the plaintiff is entitled to credit in the years 1322 and onwards for the excess of Rs. 72-9-0 per annum over the amount necessary to meet interest and Government dues each year. The claim in the plaint was to redeem at a lump sum of Rs. 300; therefore the result will be that if on this calculation the amount found due to the defendants is less than Rs. 300 the decree will nevertheless be passed for redemption at Rs. 300. If, on the other hand, the amount found due to defendants is in excess of Rs. 300 the decree will be for redemption at the amount so ascertained. As the plaintiff has substantially succeeded he should have his costs throughout.

Agarwala, J.

I agree.