JUDGMENT Wanchoo, J.
1. This is a revision by Nand Kumar Lal and others against the order of the Civil Judge of Basti in a case under Section 12, U. P. Agriculturists' Relief Act.
2. The plaintiffs opposite parties had brought a suit for redemption under Section 12, Agriculturists' Relief Act. The main point of dispute between the parties was whether the mortgage money had been paid up by the usufruct of the property. The trial Court decreed the suit on payment of a sum of Rs. 2,210-11-0 by the plaintiffs opposite parties. Both parties appealed and the lower appellate Court varied the decree of the trial Court and reduced the amount to be paid by the plaintiffs opposite parties to Rs. 920-11-0. The applicants have come up in revision to this Court and their contention is that the two Courts below have, in calculating the usufruct, invented a fanciful rule and have, therefore, acted illegally or with material irregularity in the exercise of their jurisdiction.
3. A preliminary objection has been taken on behalf of the opposite parties that no revision lies. Learned counsel for the applicants, however, relies on Section 115, Clause (c), Civil P. C. which gives revisional jurisdiction to this Court in cases where subordinate Courts have acted illegally or with material irregularity in the exercise of their jurisdiction. There is no doubt that there was jurisdiction in the Courts below to decide this suit. It was also open to the Courts below to come to any conclusion as to whether the mortgage money had been paid up or not by the usufruct of the property. But in so doing, it was the duty of the Courts below to follow the rules of law. Under the law, it was the duty of the Courts below to find out the actual usufruct of the property and calculate the profits on the basis of that usufruct. The mortgage was executed in 1930 and the interest was to be equal to the usufruct. Under these circumstances, it was not necessary for the mortgagees to maintain an account of the usufruct of the property which was in their direct cultivation. Consequently, it was impossible for the Courts below to find out the actual usufruct from any accounts in the possession of the mortgagees. Failing this, there are only two other ways in which, under the law, the Courts below could discover what profits had accrued to the mortgagees out of the land in their actual cultivation : (1) by taking oral evidence or (2) by finding out what the mortgagees could have got, if they had let the land at the highest possible rate i. e. at the rate payable by sub-tenants. The Courts below, however, did not follow either of these methods for arriving at the usufruct. They have invented a rule of their own for arriving at the profits. This rule was to multiply the annual rental value which was arrived at on the basis of circle rates by five, Prom this forty per cent, was deducted as production costs and the rest was considered to be the profits. We are of opinion that this was a fanciful method of calculating and the Courts below acted with material irregularity in the exercise of their jurisdiction in adopting such a fanciful method of calculation of their own.
4. In this connection, we may refer to two cases of this Court (1) Mt. Pram Dei v. Ganga Prasad, A. I. R. (35) 1948 ALL. 54: (1947 A. L. J. 230) and (2) Kashi Prasad v. Raghunandan, A. I. R. (35) 1948 ALL. 344: (I. L. R. (1948) ALL. 310). In the first case, a learned Single Judge deprecated this method of calculation. The other was a Bench case in which one of the learned Judges appears to have approved of it, though the learned Chief Justice did not express any opinion about it. That was, however, a case where this particular method had not been used by the Courts below and any expression of opinion about it was really obiter dicta. What the learned Judges decided in that case was that the lower Court's calculation of net profits, based as it was on oral evidence, should not be disturbed.
5. It seems to us that even where the Debt Redemption Act applies, it is not possible to arrive at "net profits" justly by the fanciful rule mentioned above. There are only two courses open to a Court in circumstances like the present when the actual income is not available. The Court has either to find out the net profits from oral evidence as in Kashi Prasad's case, (A I. R. (35) 1948 ALL. 344 : I. L. R. (1948) ALL. 310) or to calculate them on the basis of what the mortgagees would have got if the land shad been let out at rates payable by sub-tenants.
6. It has been urged that in the lower appellate Court the applicants had conceded that this was a fair method of calculation. It seems that no objection was taken in the Court below by the applicants to calculating the gross yield as five times the net annual rental on the basis of circle rates. There was, however, a dispute as to how much should be deducted for costs of production, the applicants saying that it should be fifty per cent, and the opposite parties insisting that it should be twenty-five per cent. The Courts below stuck to their own rule that it should be forty per cent. In view, however, of the fact that there was a dispute on some part of this fanciful rule, we are of opinion that the applicants cannot be said to have acceded to this method of calculation.
7. The Courts below having, therefore, acted on the fanciful rule mentioned above, this application in revision is allowed and the case sent back to the trial Court for deciding issues 2 and 3 according to law as pointed out by us. Costs will abide the final result.