RAGHAVAN Vs. NANADATH PANHA KUTTY

JUDGEMENT

(1.) The plaintiff who is the appellant in this second appeal obtained a decree for eviction against the respondent and others on December 21, 1945. Pursuant to it, he took delivery of possession on January 8, 1946. The respondent appealed against the decree and on August 4, 1954, the District Judge set aside the decree and remanded the case for disposal in accordance with the provisions of the Malabar Tenancy Act as amended by the amendment Act VII of 1954, which had enjoined by S.25(2) that,

(2.) It was urged in the appeal by the learned counsel for the appellant, that the decree for eviction as it was passed originally by the Trial Court was not erroneous, that it happened to be set aside only by a subsequent change in the law and that therefore the possession of the property held in the interval was not wrongful. I find myself unable to give effect to this contention. That Act VII of 1954 was retrospective in operation cannot be and was not disputed. If so, it is only logical to hold, that the decree as passed originally was opposed to law and could not have been made. When that decree was set aside, possession held under it became wrongful and mesne profits allowed were "properly consequential on such variation or reversal" within the meaning of S.144 C. P. C. The learned counsel however relied on the following observations of the single Judge in Ganpat Gatlu v. Navnitlal Ranchhoddas (AIR 1940 Bombay 30):

(3.) As for interest on mesne profits, it is a matter resting in the sound discretion of the court. I think in the circumstances, the respondent can be allowed interest only from the date of the subsequent adjudication, that is, the 29th March,