UDAYPRATAP SINGH DEO Vs. KRUSHNA PADHANO

JUDGEMENT

(1.) This is a plaintiffs' appeal for recovery of Mustajari rent to the extent of Rs. 3700 and odd in respect of a lease commencing on the 1st of July 1935 and ending on the 30th June 1936. The plaintiff, when he granted the lease, was a mortgagee. The lands appertained to an estate jn the district of Ganjam known as Sanokimedi Estate. Succession to this estate has been the subject of continuous and protracted litigation and which, if I can say so, has not yet been at its end. As the question of title to grant the lease has been raised by the tenants (respondents) who resisted the validity of the plaintiff's claim, certain facts, in relation to the succession of the estate and the litigation about that, have to be mentioned. The village, in respect of which Mustajari rent has been claimed admittedly lies within the ambits of that estate. One Braja Kishore was the admitted holder of this estate. He died in 1906. He was succeeded by a collateral agnate, by name, Purusottam who died in 1915 and was succeeded by Kunja Behari, his brother. During Kunjabehari's lifetime, one Nandmani, claiming to be the legitimate son Braja Kishore and in that capacity claiming to have a preferential title to succeed to the estate, started a litigation in Original Suit No. 48 of 1320 in the Civil Court of Berhampur for recovery of the estate as against Kunja Behari. His suit was decreed in December 1922. The trial Court's decree was reversed by the Madras High Court, but was restored by the Judicial Committee to November 1932. In the meantime Kunja Behari executed a usufructuary mortgage in respect of the disputed village in favour of the plaintiff or his predece'ssor-in-interest on 31st March 1922. Since then the plaintiff remained in possession till he was evicted by Nandamani. Subsequent to the termination of the lease aforesaid, Nandmaai executed the decree against Kunja Behari & got possession of the estate sometime in February 1933 except the ten villages mortgaged with the plaintiff including the disputed one. Nandmani had to take out another execution against the plaintiff and got possession of the aforesaid ten villages. In granting possession to Nandmani as against the plaintiff it was held that the plaintiff's acquisition of interest over the property was affected by principle of lis pendens and that as such his possession was no better than that of the judgment-debtor against whom the decree had been obtained. In the self-same execution case, Nandamani had claimed recovery of mesne profits from the plaintiff. This claim, however, was disallowed on the ground that in the Original Suit, as framed, there was no relief prayed for recovery of mesne profits. Nandmani, therefore, had to institute a suit for recovery of mesne profits for the period prior to his getting back possession from Court. With regard to the period, the plaintiff took up an appeal against the order of the Subordinate Judge granting recovery of possession and refusing to give mesne profits. Nandmani too went up in appeal against the part of the order refusing to grant mesne profits. While the appeal was pending before Hon'ble High Court Madras, there was an application for stay of delivery of possession to Nandmani in pursuance of the Subordinate Judge's order, under appeal. Stay was granted on condition that the present plaintiff would form out the lands as before in due course of husbandry but should deposit the collection in Court till the disposal of the appeals. Ultimately, the learned Subordinate Judge's order was confirmed. Subsequent thereto, as I have said, a suit for recovery of mesne profits was instituted and besides an application under Sections 144 and 151, Civil P. C., was preferred before the Subordinate Judge for mesne profits of such years as could come within the purview of doctrine of restitution as enacted in Section 144. The decree in the suit as well as the order in the miscellaneous proceeding formed the subjectmatter of appeal before the Patna High Court. The proprietor of the estate, probably Nandamani, was allowed recovery of mesne profits on the basis of actual collection made by the plaintiff from the tenants of the disputed village and other villages which were the subject-matter of the usufructuary mortgage. We have looked to the order of the High Court from which it is clear that the plaintiff in his statement of collections showed the present claim-amount as an unrealised one. With regard to amounts actually realised, he was made liable less 10 per cent of collection charges. With regard to amounts' unrealised, he was not held bound to pay, the mesne profits having been assessed on the basis of actual realisation and not on the basis of what he should have realised had he acted as a prudent man with due diligence.

(2.) The plaintiff has now come against the then lessor for recovery of the balance of the rent agreed under the lease. He had been given a decree by the trial Court which had been reversed by the lower appellate Court. Hence this Second Appeal.

(3.) One of the grounds on which ha was not held entitled to recover was that the lease propounded by him offended against the provision of Section 107. T. P. Act. and hence could not be enforced. It has, however, been brought to our notice in course of the argument by Mr. K. Patnaik, the Learned Counsel for the appellant, that the lease deed does not suffer from the alleged defect and that its execution is just in accordance with the provisions of Section 107. This contention, therefore, should succeed but to no good result to the appellants.