An appellate court has the power to take notice of a commutation order passed during the pendency of the appeal and to modify the decree accordingly.

C. P. Sinha, J. - These two sets of second appeals arise out of suits for bhauli rent and have been heard together because they were referred to a Division Bench and were ordered to be heard together, as they involved common question of law. These appeals were accordingly heard together and are being disposed of by this judgment. In second appeals Nos. 343 to 347 of 1948, the claim for bhauli rent was for the years 1352 and 1353Fs. There was plea of payment in each of the suits which gave rise to these appeals. The quantity and kinds of produce were also challenged. The first Court decreed the suits in part with proportionate costs by its judgment dated 15-4-1947. There were appeals to the lower appellate Court and the appeals were dismissed with costs on 15-12-1947. The second appeals to this Court were filed in the year 1948. After the institution of the rent suits, the tenants defendants had made applications for commutation of their bhauli rent into nakdi, under the provisions of S. 40, Bihar Tenancy Act, before the Revenue Court. The commutation proceedings came to an end on 20-3-1950 and the rents of the holdings in suit were commuted into nakdi. According to the order of the learned Revenue Officer, the commuted rent is to take effect from the fasli year 1353.

2. An application had been filed under O. 41, R. 27, Civil P. C., along with the schedule of the commuted rent, for taking this schedule into evidence in this appeals.

3. The points taken in this set of appeals are, that so far as the decree for bhauli rent for the year 1353Fs. is concerned, it should be set aside on the ground that the rent has been commuted into nakdi by a Court of competent jurisdiction, since, 1353PS, as already indicated, and secondly, that the documentary and oral evidence as produced by the plaintiffs-respondents, in support of their case of the kinds and quantities of produce, having been disbelieved, the Courts below have committed an error of law in giving a decree to the plaintiffs, at a rate higher than one admitted by the defendants-appellants. Point 1 is common to both sets of second appeals mentioned above and the decision on this point in these appeals will govern the other appeal as well.

4. It has been argued for the that under S. 40, sub-cl. (5), Bihar Tenacy Act, the Revenue Court had full jurisdiction to order the time from which the commuted rent is to take effect and therefore, if the Revenue Officer has ordered in this case that the commuted rent shall take effect from the year 1353Fs, the landlords are not entitled to get a decree for rent other than the rent commuted for that year and that this Court, as a Court of appeal having the powers same as the powers of the Court of first instance should take notice of the commuted rent, the order for which came into existence during the pendency of the second appeals. It has, however, been urged by the learned Counsel for the respondents, that the rights of the parties should be decided on the materials as they did exist when the rent suits were filed and that this Court should not take into account the order of the Commutation Officer, which was not in existence on the date of the suits.

4a. The learned counsel for the respondents has relied upon a decision of a Bench of this Court in Chaman Singh v. Inderdeo, F. A. No. 118 of 1922) which is an unreported case. That decision, no doubt, gives some support to his contention, but, in my opinion, that judgment has not discussed the effect of the provisions contained in sub-cl. (5) of S. 40, Bihar Tenancy Act. Their Lordships held, without any reference to or consideration of sub-cls. (5) and (6) of S.40, Bihar Tenancy Act, that the decision of the Revenue Court cannot affect the decree of the civil Court when the revenue Court took up the question of commutation after the institution of the present suit. As I have said above, S. 40, sub-Vl. (5), B. T. Act, gives jurisdiction to the Revenue Court to fix the time from which the