RADHA CHARAN GHATAK AND OTHERS Vs. ZAMIRUNNISA KHANUM

JUDGEMENT

(1.) We are of opinion that the plaintiffs are entitled to the decree which they obtained, and that the special appeal to the High Court ought to have been dismissed. The suit was brought for the mesne profits of a 7 -anna odd share of certain kismats, of which share the plaintiff recovered possession against the defendant in a suit brought under Sec. 15, Act XIV of 1859, That decree, as between the plaintiffs and the defendant, was evidence for the plaintiffs that they had been dispossessed by the defendant of that share, and that the Court had ordered them to be restored to the possession. In that suit it was not competent to the Court to determine the question of title. The plaintiffs having been restored to possession of the share, commenced a suit against the defendant to recover the mesne profits thereof, which the defendant had collected whilst she was in possession of it; and the issue raised by the Munsiff was, whether the kismats in question were included in the decree; that is to say, whether the 7 -anna odd share, of which the plaintiffs had recovered possession, was a share of those kismats. That issue was found in favour of the plaintiffs, and they recovered Bs. 74 -11, the mesne profits of the share. The defendant, in the suit for mesne profits, had a right to have the question of title tried; but the prior possession of the plaintiffs, to what they had been restored under the Act XIV decree, was sufficient prima facie evidence of their title to warrant a decree in their favour against the defendant for the mesne profits, unless she could prove a better title. No issue was raised as to the defendant's title to the share, and no appeal was preferred by the defendant to the Judge, upon the ground that no issue had been raised by the Munsiff as to her title. This case involves a mere pecuniary demand of Rs. 74 -11, and does not affect any question of title between the parties. It has now arrived at a fourth stage, and it is too late for the defendant to ask to have the case remanded to the Munsiff to try a question of title which, if the Munsiff was wrong in not trying it originally, ought to have been made a ground of objection in the second stage, viz., in the regular appeal to the Judge.

(2.) The main ground of appeal is, whether a suit for wasilat founded on a decree obtained under Sec. 15, Act XIV of 1859, can be maintained. It was contended before the Judge that no such suit for wasilat could be maintained until the defendant, who had been ordered to restore possession, should have brought a suit to declare her right, and had had that suit dismissed. If such contention could be supported, the plaintiffs might be altogether deprived of the mesne profits which had been collected by the defendant after she had turned them out of possession, and during the time that she retained it; for it does not necessarily follow that the defendant ever would bring a suit to have her title declared; and even if she should bring a suit, she may, as pointed out by the Judge, bring it at any time within 12 years, whereas the plaintiffs' suit for mesne profits must be brought within six years.

(3.) Mr. Paul, in his argument, admitted that a suit for mesne profits is in the nature of an action of trespass for damages. Such a suit, according to English law, may be maintained as soon as a plaintiff has recovered possession in an action of ejectment. It has been held that prior possession is a sufficient title to maintain ejectment. So, it appears to me that the plaintiffs' prior possession and the dispossession by the defendant was sufficient prima facie evidence, after the plaintiffs had been restored to possession under Sec. 15, Act XIV of 1859, to entitle them to maintain a suit for mesne profits. Although the defendant, in the suit under Act XIV of 1859, could not set up title as an answer to the restoration of possession, she was not precluded in this suit for mesne profits from proving, if she could, that at the time when she dispossessed the plaintiffs, and at the time when she collected those profits, she was entitled to the property, and the plaintiffs, although in possession, had no title to it. In the absence, however, of such proof on the part of the defendant, there was no error in law in awarding mesne profits to the plaintiff. For these reasons, I am of opinion that the decree of the Division Bench ought to be reversed, and that the decision of the lower Appellate Court ought to be affirmed with costs; and the appellant ought to pay the costs of the special appeal to the High Court, as well as of the appeal from the Division Bench.