JUDGMENT Allsop, J.
1. We have before us four connected appeals, namely, First Appeals Nos. 95 and 124 of 1941 arising out of suit No. 120 of 1937 in the Court of the Civil Judge of Dehra Dun and First Appeals Nos. 96 and 125 of 1941 arising out of suit No. 389 of 1938 in the same Court. The parties were the same in the two suits. First Appeals Nos. 95 and 96 have been instituted by the defendants and First Appeals Nos. 124 and 125 by the plaintiffs. The plaintiffs claimed damages in the two suits upon the ground that the defendants had cut down a number of trees in the forest of Guljwari, the property of the plaintiffs, and that they had been guilty of certain breaches of an agreement or lease which was evidenced by a document executed by the plaintiffs, Joti Prasad and Jugal Kishore, on 10th September 1935. In this document Joti Prasad and Jugal Kishore are described as the first party and the defendants, Shaikh Ahmad AH, Nur Ahmad Niyaz Ahmad and Benarsi Das are described as the second party. Paragraph 1 of the agreement is as follows : "Whereas we, the first party, are the owners and zamindars of mauza Guljwari, mohal Lala Joti Prasad and Jugal Kishore, pargana Paehhwa, district Dehra Dun, recorded in the khewat as holding No. 1 according to the partition of the year 1923, the area whereof according to the public papers is 6693 bighas 3 biswas 10 biswansis out of which 5479 bighas 15 biswas 10 biswansis is uncultivated land and is occupied by forests, rivers, brooks and high and low land and the rest is cultivated. The second party has taken on lease from the first party all the sal and kokat trees sianding on the uncultivated plot aforesaid but (except?) the trees which have been exempted from the lease in lieu of Rs. 50,000. The parties have agreed to the following terms which will be binding upon their heirs and successors:" The particular terms which may be mentioned were that the whole forest should be divided into four blocks and that the operation for cutting down the trees should be carried on in the blocks successively, that is, that the cutting operations should be completed in one block before they could be begun in the next; that the whole of the operations were to be carried on between 1st October 1935 and 31st May 1940; that the defendants were not to cut down any tree which was less than 17 inches in circumference at a place 6 inches from its base and if they cut down any such tree or damaged it in the course of cutting down other trees they were to leave in its place another tree at least 18 inches in circumference; that the defendants were to supply to the plaintiffs, free of charge, 10 cartloads of pharras (which we understand means planks cut from the outer side of a tree with the bark on one side), 200 head-loads of firewood and 25 kandis (loads) of charcoal; that they were also to pay Re. 1 per cent, of the Rs. 50,000 to the servants of the plaintiffs as commission; and that this sum of Rs. 50,000 was to be paid in four instalments of Rs. 12,500 each and the commission to the servants was to be paid with the instalments. The plaintiffs complained that the defendants had cut down sal trees in plots which were not included in the lease, that they had cut down certain trees which were not sal or kokat and which were exempted from the operation of the lease, that they had cut down or damaged some trees less than 17 inches in circumference and had not left other trees standing in their place, that they had cut down certain trees in a block in which cutting operations were already completed in order to make a road and that for the purposes of the road they had removed certain stumps to which they were not entitled and that they had not supplied the pharras, firewood and charcoal in accordance with the terms of the lease and had not paid the commission due to the servants of the plaintiffs. The two suits were instituted respectively to recover damages for the loss occasioned to the plaintiffs in the years 1936-37 and 1937-38. In suit No. 120 of 1937 the learned Judge of the Court below gave the plaintiffs a decree for Rs. 5079-5-5. This sum is made up of the following items, namely:
Rs. 4903-1-5. The value of trees cut down in plots which were not included in the lease.
" 38-0-0. The value of trees cut down and stumps re-
moved for making the road.
" 112-8-0. The value of trees below 17 inches in circum-
ference which were cut down or damaged and in place of which no other trees were left standing.
" 25-12-0. The value of pharras, fuel and charcoal not supplied.
2. In suit No. 389 of 1938 the learned Judge allowed the plaintiffs a decree for Rs. 5734-1-9. This sum consists o the following items:
Rs. 4356-9-9. The value of trees cut down in plots which were not included in the lease.
" 80-0-0. The value of trees other than sal and kokat which were cut down.
" 1012-8-0. The value of trees of less than 17 inches in circumference which were cut down and in place of which other trees were not left standing.
" 35-0-0. The price of coal, firewood and pharras.
" 250-0-0. On account of commission payable to the servants of the plaintiffs.
3. The two suits were tried together and the evidence was the same. The appeals have also been argued together and the questions involved in the appeals are of the same nature. The first question is whether the defendants cut down trees in plots which were not included in the lease. The plaintiffs in suit No. 120 of 1937 in para. 4 of their plaint enumerated a number of plots which they contended were not included in the lease. The defendants in their written statement in para. 4 of their additional pleas specifically claimed that the plots mentioned in para. 4 of the plaint were uncultivated and were included in the lease in their favour. They did, however, add in para. 5 that some trees standing on plots Nos. 500 to 503/3 had been cut down by the tenants and that plot No. 833 was stony and open land upon which there were no trees and upon which no trees had consequently been cut down. They also said that they had cut down no trees in plots Nos. 793 and 504 and that they had cut down only 15 to 20 trees in plots Nos. 775 to 778. They further added in para. 6 that they had cut down not more than 1000 trees in plots Nos. 831/1, 831/2, 831/3, 610, 611, 612, 506 and 606. Plot No. 506 was not specifically mentioned in para. 4 of the plaint but all the other plots were mentioned therein. In the other suit the plaintiffs enumerated a number of plots in para. 5(a) of their plaint. The defendants in their written statement in para. 3 of their additional pleas contented themselves with saying generally that the plots were included in the lease because they were part of the forest. In that suit they did not raise the point that they had cut down fewer trees than those alleged in the plaint.
4. The defendants-appellants have argued that every plot which was in fact uncultivated at the time was included in the lease. It seems to me perfectly clear on a perusal of the agreement that this contention is not justified. The agreement in terms had reference to the partition records of the year 1923. It recited that the total area entered in the papers was 6693 bighas 3 biswas 10 biswansis out of which 5479 bighas 15 biswas 10 biswansis was uncultivated land and it was this uncultivated land which was leased to the defendants. There can be no doubt that it was the plots included in the area of 5479 bighas 15 biswas 10 biswansis described in the partition records which were leased. The partition records have been produced and this 5479 bighas 15 biswas 10 biswansis mentioned therein is described not as uncultivated land but as land which was not capable of cultivation. It is true that the parties used the term 'uncultivated' instead of the term 'incapable of cultivation' but there cannot be. the slightest doubt about their meaning that it was the plots comprising this area of 5479 bighas 15 biswas 10 biswansis as described in the partition record which was the subject of the agreement. The whole of that record has not been printed but it is on the records of the case and we have examined it in the interests of justice. We find that all the plots included in these suits are not within the area of 5479 bighas 15 biswas 10 biswansis mentioned as land incapable of cultivation. It is perfectly clear therefore that the plots which are in dispute were not included in the lease and that the defendants were not entitled to cut down any trees thereon. The fifteenth term of the agreement is as follows : "The area has been given correctly according to the public papers and the second party has satisfied himself in connexion therewith. The first party are not responsible for the area being more or less. A reduction in the price will be made in proportion to the reduction in the area of the jungle if any reduction is made in the area given in the partition papers on account of the ease going on between the first party and Lala Mutsaddi Lal relating to the boundary of the jungle aforesaid." It has been argued that this suggests that the intention of the parties was that the defendants should have the right to cut down trees many part of the forest which could properly be so described and that no particular plots or areas were contemplated. In my judgment there is no force in this argument. It is clear that this term was put in merely as a matter of precaution in order to make it definite that the areas were mentioned only by way of description and that the defendants could not claim any re-measurement. The meaning of the agreement is certainly that the plaintiffs were allowing the defendants to cut down trees in the plots described in the partition record as uncultivated (or more properly unculturable) land as having a certain alleged area. The plots existed on the site and those which were not included in the alleged area of 5479 bighas 15 biswas 10 biswansis described as unculturable land were not included in the agreement. On the question of the plots which were leased I have therefore no doubt that the decision of the learned Judge of the Court below was right.
5. The next question is whether the Court below was right in its decision about the number of trees cut down by the defendants. In arguments no reference has been made to the number of trees alleged to have been cut down in Suit No. 389 of 1938. The detailed argument has been directed to the number of trees mentioned in the other suit. The main argument is that there is no real evidence on the record to prove that the number of trees was 2551 as held by the learned Judge. The plaintiffs had a commission issued to one Raj Bahadur Mathur, who went to the place and counted and measured every stump which he could find. They also produced a witness called Wazir Singh who was employed by them and who gave evidence about the number of trees which had been cut down by the defendants. Unfortunately this witness died before he could be cross-examined and it is urged on behalf of the defendants-appellants that his evidence is not admissible. There is certainly no provision in the Evidence Act that the evidence of a witness who has been examined in open Court upon oath shall be excluded because it has not been possible for the other party to cross-examine him. It is to be noticed that Section 2 of the Act makes it quite clear that all rules of evidence not contained in any Statute, Act or Regulation are repealed. A reference has been made to Section 33 of the Act, but the provisions in that section are, in my judgment, quite irrelevant to the question before us. When an issue of fact arises between the parties at any stage of a judicial proceeding, they are required, or are given an opportunity, to produce evidence upon that issue and when they present the evidence, the question arises and must be decided whether that evidence is admissible under the provisions of the Evidence Act. If the evidence consists of the oral statement of a witness he must be produced before the Court (or in some circumstances before a commissioner appointed by the Court). If at that time the party wishing to produce him cannot do so for the reason that he is dead, or for certain other reasons mentioned in Section 33, it is open to the party to produce a statement made by him in a previous proceeding provided that the previous proceeding was between the same parties or their representatives-in-interest, that the adverse party, in the first proceeding had the right and opportunity of cross-examining him and that the question in issue was substantially the same in the first as in the second proceeding. In this case Wazir Singh had not made any previous statement in some other proceeding wherein the issue was substantially the same as in the suit and the plaintiffs did not ask that any such statement should be received in evidence. They produced Wazir Singh before the Court and examined him. The question whether any evidence is admissible should be decided at the time when it is tendered. It is conceivable that evidence may be admitted under a misapprehension about the facts which govern its admissibility, as for instance, when a witness makes a statement which is afterwards discovered to be hearsay, and in those circumstances doubtless the evidence would be later excluded when the true facts were discovered, but it would be excluded upon the ground that it was not admissible at the time when it was tendered. The evidence of Wazir Singh was certainly admissible at the time he gave it and as I have said there is no provision in the Evidence Act that the evidence of a witness which is admissible at the time when he is examined should afterwards become inadmissible if it is not possible to cross-examine him. I have already mentioned that it is not strictly in accordance with the Evidence Act to rely upon the rules of English law upon this point, but even if it were it is quite clear that the evidence of a witness who has been examined in open Court is not inadmissible in England merely because it is impossible afterwards to cross-examine him. I need only quote the following passage in para. 1469 in the tenth edition of Taylor's Law of Evidence : "In the event of the death or serious illness of a witness between his examination in chief and his cross-examination...in England both a late Master of the Rolls and a late Vice-Chancellor have in a civil case held that the evidence previously given by him is admissible, though the degree of weight to be attached to it is of course a question of fact."
6. No authority has been quoted to us to show that the English law has changed since that passage was published. There is a similar statement in Phipson's Law of Evidence, Edn. 7, p. 459. That the evidence in such circumstances is admissible but that the weight to be attached to it depends on the circumstances of each case has been held in Mangal Sen v. Emperor ('29) 16 A.I.R. 1929 Lah. 840 following the case in Maharaja of Kolhapur v. Sundaram Ayer ('25) 12 A.I.R. 1925 Mad. 497, in Mt. Horil v. Rajab Ali ('36) 23 A.I.R. 1936 Pat. 34 where English authorities are quoted and in Diean Singh v. Emperor ('33) 20 A.I.R. 1933 Lah. 561. Learned Counsel has quoted the case in Sundara v. Gopala ('34) 21 A.I.R. 1934 Mad. 100 but that was a case in which the provisions of Section 33, Evidence Act, directly applied. There remains the case in Narasingh v. Gokul Prasad ('28) 15 A.I.R. 1928 All. 140. In that case a witness was examined in chief on commission but was not fully cross-examined and the learned Judges said that it was open to the defendants to argue that a subsequent cross-examination would have destroyed to a great extent the effect of the evidence-in-chief and therefore one could not take an incomplete deposition of the witness and pay any attention to it. The learned Judges held that that was a good argument and they decided to exclude her incomplete statement. The learned Judges referred to a note of a case, Boisagomoff v. Nahapiet Jute Co. ('01) 5 C.W.N. ccxxx. That was also a case in which the cross-examination of a witness examined on commission was not completed and the statement of the witness was not admitted. The learned Judge was of the opinion that the evidence of a witness examined on commission could be admitted only under the provisions of Section 33, Evidence Act. I am inclined with the greatest respect to doubt whether those provisions could apply to a statement taken on commission in the course of a trial which could scarcely be regarded as a statement made in an earlier judicial proceeding or at an earlier stage of the same judicial proceeding but the learned Judge's decision was based on his opinion and is, authority only for the proposition that the provisions of Section 33 of the Act contemplate a full opportunity for cross-examination. The learned Judges in Narasingh v. Gokul Prasad ('28) 15 A.I.R. 1928 All. 140 also said that they had considered the terms of Section 33, Evidence Act, and it seems to me that that ruling is not relevant to the present case where the witness was examined before the Judge in open Court and to which those provisions can have no application. The difference between rejecting evidence on the ground that it is legally inadmissible and ignoring it upon the ground that it should not be believed may often be of very little importance in practice but the distinction is important in principle because if the evidence is inadmissible the Court is not entitled to consider it at all whereas if it is admissible the Court must decide on the circumstances of each case whether any weight should be attached to it. All relevant authority and also the provisions of the Evidence Act would support the proposition that the evidence of a witness in these circumstances is admissible and the Judge who is dealing with it must decide for himself whether he believes the facts stated or does not believe them. I hold therefore that the learned Judge was entitled in this case to take the evidence of Wazir Singh into consideration and that we are not entitled to ignore it although we may, if we choose, think that it is of little value.
7. Learned Counsel for the defendants-appellants has urged that the Court was not justified in basing its estimates of damages upon the finding that 2551 trees had been cut down by his clients. He maintains that the burden of proof was upon the plaintiffs-respondents and that they failed to discharge it. On the pleadings it is apparent that the defendants maintained that they were entitled to cut down the trees in all the plots mentioned in para. 4 of the plaint in the first suit and that they had in fact cut down a number of trees in some of the plots and also in plot No. 506 which was not mentioned in the plaint and which we find was also excluded from the lease. It is evident from the terms of the lease that the defendants had the sole right to cut down trees in the plots included therein and it is impossible that they would have allowed others to remove trees to which they themselves claimed to be entitled. They were to all intents and purposes on their own showing in the position of trespassers and I think it Has always been held that a trespasser is bound to establish if he wishes to do so, the exact amount of, mesne profits which he has received from the property over which he has trespassed although, I dare say, the initial burden would be on the plaintiff to establish facts which would give the Court some basis for estimating the amount of damages. Learned Counsel for the defendants-appellants is, in my judgment, attempting to place an impossible burden upon the plaintiffs-respondents. Nobody has contended that the defendants-appellants cut down any trees with their own hands and it would have been impossible for the plaintiffs to prove that each individual tree had been cut down by certain people and that those people were the employees or representatives of the defendants. They can only show in a general way the amount of damage which appears to have been caused. They have examined a commissioner who was appointed by the Court and who was a respectable person against whose integrity nothing has been said or apparently could be said. This gentleman counted the stumps and measured them. The suggestion by learned Counsel for the defendants-appellants is that the fact that the stumps existed did not necessarily prove that the defendants had had the trees cut down because the stumps may have been old, that is, the trees may have been cut down at some time prior to the lease. I have been through the report of the commissioner and find that he said that three stumps appeared to be very old. It does not seem that the representatives of the defendants-appellants, who were admittedly with him, pointed out other stumps that might have been in existence before the defendants entered upon the land. The only question 'upon this point which was put to the commissioner in cross-examination elicited the answer that he was not competent to decide the age of the stumps. The commissioner counted the trees in May 1939, when it was obvious that the stumps would not have borne the appearance of being freshly cut. I think the learned Judge was justified in coming to the general conclusion that the stumps represented trees which had been cut down by the defendants-appellants in the absence of any rebutting evidence on their part. The evidence of Wazir Singh is the same as that of the commissioner. It is obvious that he could not have been present when each tree was cut down and that he could not have deposed from his personal knowledge that each tree had been cut down by somebody whom he knew to be the servant or agent of the defendants-appellants. The plaintiffs produced such evidence as they were able to produce. It was not due to any fault of theirs that Wazir Singh was not subjected to cross-examination. They could only give general evidence which would enable the Court to make some estimate of the damage caused. The burden, in my judgment, was upon the defendants to show from their accounts or registers the exact number of trees which they had removed if they were less than those which were apparently removed on the evidence produced by the plaintiffs. The defendants have produced no evidence at all either to show the number of trees which they removed or to show that any tenants or other people in their knowledge removed any of the trees from the plots in suit. They adopted the attitude which was strongly deprecated by their Lordships of the Privy Council in Murugesam v. Gnana Sambanda ('17) 4 A.I.R. 1917 P.C. 6. Their Lordships said:
"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing accordingly to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough : they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.... The best assistance to a Court of Justice would have been a scrutiny of these documents, and their Lordships feel free to conclude that if they had been by their entries confirmatory of the defendants' view the defendants would have brought them into Court." The best evidence to establish the exact amount of profit accruing to the defendants and of damage caused to the plaintiffs would have been the production of books of account and registers which it is impossible to believe that the defendants did not keep and as the defendants deliberately refused to produce these documents and indeed denied their existence it is a fair assumption that they would have supported the case rather of the plaintiffs than of the defendants if they had been produced. In these circumstances if the learned Judge assessed the amount of damages to the best of his ability on the information furnished by the plaintiffs it seems to me that we are not in a position to differ from him or to hold that his decision was not justified. I am of opinion that the estimate based on the number of trees which appear to have been cut down was the only estimate which the Court could make. The next point which has been raised is that the amount decreed is excessive even on the assumption that the number of trees cut down by the defendants was that alleged by the plaintiffs. The argument is that too high a valuation has been placed upon them. A good deal of time and trouble was expended in the Court below upon considerations which appear to me to have been, in the circumstances, irrelevant. The Court appointed a Forest Officer, Mr. Osmaston, as a commissioner to estimate the value of the trees, but this officer's estimate was based on the value of the forest as a whole. It may be, and doubtless is, a fact that well-cared-for Government forests are in the bulk more valuable than zamindari forests, but I do not see that that is a question of any relevance in this case where the trees were counted and measured individually. There is no satisfactory evidence that a tree of a particular girth in a zamindari forest is less valuable than a tree of a similar girth in a Government forest and there seems to be no reason why it should be. The learned Judge has based his estimate of the value of the individual trees upon the rates charged in Government forests for such trees and if the defendants were dissatisfied with the estimate upon this basis it was open to them to show how much wood they had collected and at what prices they had sold it. It appears to be true that the prices charged for individual trees in Government forests are intentionally high because such trees are either cut down by persons not entitled to remove them or cut down by local people whom the forest department wishes to discourage, the policy being generally that people should be encouraged to buy their wood from the regular contractors. In this case, however, the position was that the defendants removed trees which they had no right to. remove. I see no reason for differing from the estimate made by the learned Judge.
8. In this connexion I may mention the question which has been raised by the plaintiffs in their two appeals, namely, that the Court was wrong to disallow a surcharge of 25 per cent, on the value of the trees which they claimed upon the ground that the trees would have been more valuable to them if they had been allowed to grow larger. It seems to me that there is this force in the argument put forward by the plaintiffs that they were entitled to the value of the trees as they were standing at the time and not to their value after they had been cut down, but there is really no evidence which would establish with certainty what the present value of the standing trees was and the fact that the high rates charged by the Forest Department for individual trees have been applied, would, in all probability, cover the difference between the value of the trees cut down as timber and their value as standing in the forest. The assessment of damages can only be approximate and there is no sufficient reason why we should interfere with the estimate at which the learned Judge arrived. For this reason I would dismiss the plaintiffs' appeals, but the argument put forward by them furnishes a further reason why the estimate made by the learned Judge should not be reduced. For the same reasons I would uphold the finding of the learned Judge in the other suit on the question of the value of the trees cut down in plots not included in the lease. The next question is whether any trees were cut down or stumps removed in order to make a road through one of the blocks. Wazir Singh gave evidence for the plaintiffs and the learned Judge believed him. Narain Singh for the defendants admitted that a road something less than a mile long was made but he and Atma Ram both deposed that it was not necessary to cut down any trees or remove any stumps. Atma Ram added that there was an old road there already. If that was so one would scarcely have described the operation as making a road. If there was no old road it is incredible that it would not have been necessary to remove any trees or stumps. The learned Judge was in a better position than we are to decide whether the witnesses were frank and truthful and if he believed the statement of Wazir Singh (even though he was not subjected to cross-examination) in preference to the very improbable statements of the defence witnesses I do not think that we are competent to say that he must have been wrong. Nd argument has been addressed to us about the cutting of the twenty-three jamun and three harar trees mentioned in suit No. 389. The learned Judge pointed out that the statements of the defence witnesses were inconsistent and once it is held that the statement of Wazir Singh is relevant, nothing can be said against the decision of the learned Judge. What one believes or does not believe is a question of fact not of law.
9. In suit No. 120 of 1937 the learned Judge held that the defendants were liable to pay eight annas each for 205 trees less than seventeen inches in girth for which no substitutes were left standing. He has, however, by a slip of the pen allowed a sum of Rs. 112-8-0 instead of a sum of Rs. 102-8-0. This mistake must be corrected. Apart from that I see no reason for differing from the learned Judge. There was a register1 signed by the representatives of both parties showing that 1978 trees had been cut down or damaged up to 2nd March 1937, and that substitutes had been left for them. From 3rd March 1937, to the end of the season about the middle of April the defendants had no records or produced none. The plaintiffs had a register supported by the evidence of Wazir Singh which showed that 451 trees had been cut down or damaged. The defendants had only the vague evidence of Narain Singh and Atma Ram that about 200 trees had been damaged. Atma Ram said that about 250 of 300 trees, eighteen inches in girth had been left standing. The plaintiffs in a notice which they gave to the defendants mentioned 246 such trees. I do not think that it is possible for us to find that the learned Judge was wrong in accepting the plaintiffs' figures when the defendants had nothing definite to oppose them. In the other suit it does not appear to have been questioned in the lower Court that 2025 seventeen inches trees had been damaged. The defendants' case seems to have been that 1840 eighteen inches trees had been left standing as substitutes. They relied upon a register, Ex. N which the learned Judge found to be a forgery. This register has not been printed nor relied upon before us and it is, therefore, impossible for us to say that the learned Judge was wrong. In the matter of the planks and fuel it is admitted that these were not delivered. The defendants alleged that the plaintiffs were responsible for their failure to take them away but it is clear that the defendants imposed a time limit which they were not entitled to do. The matter is a small one but the decision of the learned Judge appears to have been right. In the matter of commission for the benefit of the servants of the plaintiffs the only question is whether the plaintiffs have a cause of action. The commission was to be paid with the instalments and it seems quite clear that it was payable to the plaintiffs. It was a definite term of the agreement that this sum should be paid. It was not a matter left to the good will of the defendants. As a result of these findings I would dismiss Appeals Nos. 96, 124 and 125 of 1941, with costs. I would reduce the principal amount in A. No. 95 of 1941 by Rs. 10 with the consequential amendments in interest and costs. I would allow the respondents their costs of the appeal.
Mathur, J.
10. I had the advantage of perusing the judgment of my learned brother and I agree with his findings and in the order proposed in all the four appeals.
11. Appeals Nos. 96, 124 and 125 of 1941 are dismissed with costs. In Appeal No. 95 of 1941 the principal amount is reduced by Rs. 10 with the consequential amendment of interest and costs. With this modification Appeal No. 95 of 1941 is also dismissed with costs. The respondents shall get their costs of the appeals.