RAGHU MAHTON Vs. BULAK MAHTON

JUDGEMENT

(1.) This second appeal by the plaintiff is directed against the judgment and decree passed by the learned third Additional Subordinate Judge of Patna dated 12-8-1949 by which the learned Subordinate Judge reversed the judgment and a final decree for mesne profits passed by the learned Munsif of Bihar on 20-9-1948. The material facts are the following. The appellant before me brought a suit for recovery of possession of 6.27 acres of land in village Kathauli, police station Bihar. The suit was numbered Title Suit No. 217 of 1940. The case of the appellant was that the land was the bakasht land of the landlords, who were defendants second party in the action, and it was settled with the present appellant by means of a registered document, dated 1-5-1940. It was alleged that the defendants first party (some of the respondents before me) dispossessed the appellant from the land. The appellant made two prayers-

(2.) Learned counsel for the appellant has contended before me that the learned Subordinate Judge was wrong in his view that the appellant was not entitled to a final decree for mesne profits. His contention is that on a true reading of the plaint it will be found that the appellant had claimed antecedent and future mesne profits, and the decree of the lower appellate Court, properly interpreted, allowed that claim; therefore, the appellant was entitled to ask for a final decree for mesne profits. In view of this argument it is necessary first to consider, with reference to the plaint and the decree passed by the lower appellate Court, whether mesne profits were claimed by the appellant and if any such claim was allowed by the lower appellate Court. In para. 13 of the plaint occurred the following statements:

(3.) That if for any reason the Court finds difficulty in delivering possession over the disputed land to this plaintiff on dispossession of the principal defendants 1st party, and if the plaintiff be deemed to be dispossessed therefrom and the possession of the disputed land be not delivered to him by the Court, in that case a decree for Rs. 1800.00 besides interest at the rate of Re. 1 per cent, per month from the date of dispossession may be passed in favour of the plaintiff against the principal defendants 2nd party.