KALLY NATH DUTTA Vs. SHEW BUX MOHATA

JUDGEMENT

(1.) THIS rule was obtained by defendant 3 against an order of the learned Subordinate Judge dated 15th March 1949 in which he gave certain directions in the matter of the ascertainment of mesne profits, to a Commissioner appointed for this purpose. In 1944 a suit for declaration of the plaintiff's title and for recovery of possession was instituted against several defendants. Defendants 1, 2 and 6 were the trustees to the estate of one Sm. Sekheswari. Defendants 3, 4 and 6 were in possession of distinct plots under the trustees. On 20th March 1948 the suit was decreed, the plaintiff's title was declared and a decree for recovery of possession and for mesne profits was passed in favour of the plaintiff. Against the decree defendant 3 preferred an appeal to this Court and obtained Civil Rule No. 872 (F) of 1948 for a stay of the decree for delivery of possession and for ascertainment of mesne profits. This rule was heard on 23rd August 1948. An order was made by this Court directing stay of delivery of possession on certain conditions. The order directed that the Subordinate Judge should make a rough estimate of the mesne profits in respect of the property which was in the possession of defendant 3 from the date of suit, that is, 18th September 1944 till August 1950. If the security was furnished in respect of this sum the decree for delivery of possession would be stayed. There was a further order made in the rule to the effect that thereafter the Subordinate Judge would proceed to an ascertainment of the mesne profits for the entire period from 13th September 1944 till August 1950 and after such ascertainment the order requiring security to be furnished would be liable to be varied. After the matter went down to the Court below the plaintiff filed a petition stating that the mesne profits should be calculated on the basis that the profits of a cotta of laud was Rs. 10 per month. On this footing the plaintiff stated that the probable mesne profits would come up to Rs. 4,08,000. To this petition defendant 3 filed a petition of objection wherein he mentioned the profits received by him, and that the profits so received by him were largely due to the improvements made by him and which cost him a sum of about Rs. 2,00,000. After making deductions for interest on such cost the defendant stated that the nett profits would be about Rs. 500 per annum. In the alternative the defendant stated that the probable rent of the disputed land would be Rs. 6 per cottah per annum. By an order dated 15th February 1949 the learned Subordinate Judge made a rough estimate. He took the view that the land in the possession of defendant 3 would be about 6 bighas, the probable letting value would be Rs. 12 per cottah per annum and on that footing he calculated the probable mesne profits for the entire period, roughly six years, at the total sum of Rs. 8640. Thereafter the Court proceeded with the work of ascertaining the mesne profits of the land. A commissioner was appointed to ascertain the same. The commissioner in the course of his enquiry prayed for directions as regards the question as to the per -son on whom the onus lay to prove the amount of mesne profits. The learned Subordinate Judge dealt with this matter by order No. 109 dated 16th March 1949. In the course of his order the learned Subordinate Judge stated that the defendant judgment -debtor who was in possession was to lead evidence first to enable the commissioner to arrive at a conclusion as regards the amount of mesne profits. In case defendant 3, the judgment -debtor, did not lead such evidence the commissioner was to take further directions from the Court. On behalf of defendant 3, the judgment -debtor, a prayer was made that in case he was called upon to lead evidence first he might be allowed the opportunity of adducing rebutting evidence. The learned Judge did not pass any final orders on this petition but held it over for further direction in case the question arose at a later stage. It is the propriety of this order which is called in question in this Rule on behalf of the petitioner.

(2.) MR . Sen appearing on behalf of the petitioner has contended that the learned Subordinate Judge adopted a wrong procedure by calling upon defendant 3 to lead evidence first. His contention is that in a case like the present the burden of proof is initially on the plaintiff and it is the plaintiff who is to lead evidence first. He has referred us to some cases bearing on this question.

(3.) WE shall first deal with the first question, viz., whether in a case like the present it was for the plaintiff to adduce evidence first on the ground that the burden of proof lies on him. The word mesne profits is defined in Section 2, Clause (12), Civil P. C., which runs thus: