RAMRATAN KAPALI Vs. ASWINI KUMAR DUTT

JUDGEMENT

(1.) The substantial question of law which calls for decision in these appeals relates to the assessment of mesne profits of property sold for arrears of revenue, and is of a somewhat novel character. The circumstances under which the claim for mesne profits is made by the decree-holders are not the subject of controversy between the parties. On the 25 of September 1894, the respondents purchased an estate at a sale for arrears of revenue. They at first commenced an action for recovery of possession of some of the lands comprised in the estate, on the allegation that the intermediate tenure set up by the persons in possession was not binding upon them as purchasers at a sale for arrears of revenue. This suit was decreed on the 2 March, 1900, and on appeal to this Court, the decree of the Court of first instance was affirmed on the 24 March 1905. On the 12 April 1905 the purchasers commenced the present action for recovery of possession of lands not comprised in the previous suit, upon the allegation that the intermediate tenures set up by the defendants were either fictitious, or had been created after the date of the Permanent Settlement, and were consequently inoperative against them as purchasers of the entire estate at a revenue sale. The suit was decreed on the 19 December 1905, and it was found that the tenures, though genuine, were not proved to have been in existence at the date of the Permanent Settlement. On the 14 March 1906, the decree-holders obtained delivery of possession, and subsequently, on the 30 July 1906, asked for assessment of mesne profits. The Court below has made a full investigation into the claim, and has made a decree in favour of the plaintiffs, by which mesne profits have been awarded, jointly against all the defendants, on the basis of the rent payable by the actual cultivators, The defendants judgment-debtors have now appealed to this Court, and on their behalf the decision of the District Judge has been assailed substantially on four grounds: namely, first, that the mesne profits up to the date of the decree for possession should have been calculated on the basis of the rent payable by the tenure-holders of the first degree, who held immediately under the defaulting proprietors; secondly, that the mesne profits, both for the period antecedent and subsequent to the decree for possession, should have been assessed separately in respect of different under-tenures of the same degree, as also in respect of subordinate tenures of different degrees, and that the decree should have specified the separate liability of each under-tenure-holder; thirdly, that as some of, the judgment- debtors have been released from liability, the effect is to release all the judgment-debtors; and fourthly, that in any event, as some of the judgment-debtors have been released from liability on receipt of specified sums from them, the remaining judgment-debtors cannot be made liable jointly and severally for the balance of the entire debt.

(2.) In support of the first of these contentions, it has been argued by the learned vakil for the appellants that the effect of a sale for arrears of revenue is not if so facto to avoid all incumbrances and under-tenures, but only to make them voidable till a decree has been made in a suit for annulment of the under-tenures" and for recovery of the lands; the possession of the under-tenure-holders is not wrongful, and the purchaser at the revenue sale is consequently not entitled to claim, by way of damages for use and occupation, any sum in excess of what represents the rent payable by the under-tenure-holders. In our opinion this contention is partially sound. The case of Titu Bibi V/s. Mohesh Chunder Bagchi (1883) I.L.R. 9 Calc. 683, shows conclusively the fallacy of the assumption that the effect of a sale for arrears of revenue is if so facto to avoid all incumbrances and under-tenures. An incumbrance or under-tenure is not if so facto avoided by the sale of an estate for arrears of revenue, and is only liable to be avoided at the option of the purchaser at such sale. As pointed out in the cases of Kamal Kumari Chowdhurani V/s. Kiran Chandra Boy (1898) 2 C.W.N. 229, Mafizuddin v. Korbad Ali Chowdhuri (1903) I.L.R. 31 Calc. 393 and Mir Waziruddin V/s. Lala Deoki Nandan (1907) 6 C.L.J. 472, 484, the law does not require any notice as a necessary preliminary to a suit to avoid an under-tenure but the option of the purchaser may be exercised by the institution of a suit within the time allowed by law. In the case before us, where no notice was given by the purchaser before the commencement of the suit for ejectment, we must hold that the tenure was not annulled till the date of the institution of the suit, that is, the 12 April 1905. We are unable to accept as well-founded the contention of the appellants that the tenure Was not annulled till the date of the decree made in the suit for ejectment. There is no authority in support of this view, which is clearly opposed to principle, because, unless it is assumed that there Was a cause of action at the date of the institution of the suit, no decree for ejectment could be made therein. We must hold, therefore, that the tenure was annulled with effect from the date of the commencement of the suit, and that, for the period antecedent thereto, the plaintiffs as purchasers at a revenue sale are entitled only to such sum as represents the rent payable by the tenure-holder of the first degree; obviously, a decree for this sum can be made only against such of the defendants as hold the tenures directly under the defaulting proprietors, and not against all of them jointly and severally. The first ground taken on behalf of the appellants must, consequently, succeed in part.

(3.) In support of the second contention of the appellants, it is argued that in respect of the mesne profits which have accrued during the pendency of the suit for possession, from the date of its institution to the date of delivery of possession, the liability of different tenure- holders of the same degree, and of separate under-tenure-holders of different degrees, should have been separately assessed. In support of this proposition, reliance has been placed upon the cases of Fuzul Mahomed Mundul V/s. Raj Coomaree Debee (1866) 6 W.R. 113, Collector of Bograh V/s. Shama Shankur Mojoomdar (1866) 6 W.R. 230, Sreeputty Roy V/s. Loharam Boy (1867) 7 W.R. 384, Krishna Mohun Basak V/s. Kunjo Behari Basak (1881) 9 C.L.R. 1, Krishna Ram V/s. Rakmini Sewak Singh (1887) I.L.R. 9 All. 221 and Hari Saran Maitra V/s. Jotindra Mohan Lahiri (1900) 5 C.W.N. 393. It has been argued, on the other hand, on behalf of the respondents decree-holders, that the liability of the wrong-doers is joint and several, and in support of this proposition, reliance has been placed upon the cases of Ganesh Singh V/s. Ram Raja (1869) 3 B.L.R. P.C. 44. 12 W.R. 38, P.C. Ajoodhya Doss V/s. Lalljee Paurey (1873) 19 W.R. 218, Shama Sunkur Chowdhry V/s. Sreenath Banerjee (1869) 12 W.R. 354, Ram Chunder Surmah V/s. Ram Chunder Pal (1875) 23 W.R. 226 and Mudun Mohun Singh V/s. Ram Dass Chuckerbutty (1880) 6 C.L.R. 357. No useful purpose would be served by an analysis and examination of each of these decisions, because not one of them is directly in point. No doubt the liability of wrong-doers in tort is, as a general rule, joint and several; but it cannot be laid down as an inflexible rule, that in every case of tort the Court is bound to pass a joint decree against the wrong-doers, making each jointly and severally liable for the whole amount decreed. In cases of combination like that of Ganesh Singh V/s. Ram Raja (1869) 3 B.L.R. P.C. 44. 12 W.R. 38 P.C. where rioters as members of a common assembly, plundered a house, or Shama Sunkur Chowdhry V/s. Sreenath Banerjee (1869) 12 W.R. 354, where trespassers had colluded to keep the true owner out of possession of his property, or Ajoodhya Doss V/s. Lalljee Paurey (1873) 19 W.R. 218, where a tenant-in-common had been excluded by the joint action of the defendants from his property which had been divided as a spoil amongst them, or Ram Chunder Surmah V/s. Ram Chander Pal (1875) 23 W.R. 226, where intermediate tenure-holders had combined wrongfully to keep an auction purchaser out of possession, it is just and reasonable that the tort-feasors should be held jointly and severally liable for the damage sustained by the injured party. In cases, however, where there is no combination, and where, as in Krishna Mohun Basak V/s. Kunjo Behari Basak (1881) 9 C.L.R. 1. and Mudun Mohun Singh V/s. Ram Dass Chuckerbutty (1880) 6 C.L.R. 357, the injury to the plaintiff, though wrongful in the sense that it is an infraction of his legal rights, has been caused in good faith, or in assertion of an imperfect title, the strict rule of joint and several liabilities cannot justly be enforced. The principle of law which holds all persons concerned in the commission of a tort liable therefor, without regard to the part taken therein by them so long as their acts are not separate and independent, is far-reaching and efficacious: that principle is that persons who act in concert or combination to commit the wrong Which actually results in damage to person or property, must each be held liable for the entire damage, no matter what part one may take, so long as there is concerted action. As has been well said in Place V/s. Minister (1875) 65 N.Y. 89, "designing men cannot be allowed to put forth a supple tool to do their bidding, knowingly take the profits of concocted wrong, remain silent, and go unwhipped of justice." In cases, therefore, in which the controlling general principle, namely, that where acts of several persons by design, or by conduct, tantamount to conspiracy, contribute to the commission of a wrong, they are jointly liable, is not applicable, the rule of joint liability also ceases to be applicable. The rule of joint liability, therefore, which, as appears from the case of Bodreugam V/s. Arcedekne (1302) Y.B. 30 Edw. I. 106, referred to in the judgment of this Court in Harihar Pershad V/s. Bholi Pershad (1907) 3 C.L.J. 383, 390, was adopted in England as early as the beginning of the fourteenth century, and may be regarded as based on sound principle when applied to cases of combinations or conspiracies, must be applied with some limitations; otherwise, as pointed out by Lord Herschell in Palmer V/s. Wick [1894] A.C. 318, it ceases to be a principle of justice or equity, or even of public policy. The same view was indicated by Best C.J. in Adamson V/s. Jarvis (1827) 4 Bing.66; 29 R.R. 503, and by Peacock C.J. in Sreeputty Boy V/s. Loharam Roy (1867) 7 W.R. 384. A similar view was taken by this Court in Hari Saran Maitra V/s. Jotindra Mohan Lahiri (1900) 5 C.W.N. 393, which was not questioned when the case was taken, before the Judicial Committee: Jotindra Mohun Lahiri V/s. Guru Prosunno Lahiri (1904) I.L.R. 31 Calc. 597; L.R. 31 I.A. 94. If now we apply these principles to the case before us, what is the position? The plaintiffs are the purchasers of an estate at a sale for arrears of revenue; the defendants are tenure holders of different grades who held possession of the property under the defaulting proprietors; till the plaintiffs had made their election and indicated to the defendants that they did not want any portion of the rents payable by the actual cultivators to be intercepted by the under-tenure-holders, the defendants were entitled to remain in occupation and to exercise their rights over the property. When the suit for ejectment was commenced, the defendants set up in good faith an intermediate tenure which, however, was found to be inoperative against the plaintiffs purchasers at a sale for arrears of revenue, as it was not established to have been created before the time of the Permanent Settlement. A decree for ejectment was consequently made against them, but there is no foundation for any suggestion that the defendants had combined or conspired to keep the plaintiffs out of possession. Consequently they cannot, in justice, be made jointly and severally liable for the mesne profits, which must be apportioned according to the liability of the various defendants. The question, therefore, arises, what is the principle upon which such apportionment should be made? The obvious answer is that the liability should be apportioned according to the share of the profits intercepted by each defendant. An application of this principle may be illustrated by a concrete example. Assume that before the revenue sale, X, the proprietor of the estate had under him successive tenure-holders 6f different degrees, A, B, C, the last of whom was the immediate landlord of an occupancy raiyat who paid rent at the rate of Rs. 100 per annum. Suppose that C paid rent to B at the rate of Rs. 60 per annum, B paid rent to A at the rate of Rs. 35 per annum, and A paid rent to X at the rate of Rs. 20 per annum. It is obvious that if all the intermediate tenures were annulled, X would be entitled to receive direct from the occupancy raiyat Rs. 100 per annum, out of which sum Rs. 40 was intercepted by C, Rs. 25 by B, and the remainder Rs. 35 constituted the sum received by A, out of which he retained a profit of Rs. 15. If, however, X recovers possession by ejectment of A, B, and C, he should in justice receive as mesne profits Rs. 35 from A, Rs. 25 from B, and Rs. 40 from C. To put the matter in another way: each tenure-holder of different degree should be made liable to the purchaser of the estate for the amount of profits retained by him, which is equivalent to the net amount intercepted by him out of the sum payable by the occupancy raiyat. We have made no allowance in the illustration for any reasonable deduction that may have to be made on account of collection or other similar charges. In order to apply this principle to the case before us, we have first to determine under-tenures of the second degree, under the tenure immediately subordinate to the proprietary interest, and we have next to determine the under-tenures of successive degrees, under each under-tenure of the second degree. The holders of each of these under-tenures must pay to the plaintiffs respondents the net amount of profits made by them out of rents payable by the occupancy raiyats. The result, therefore, is that the second ground upon which the decision of the District Judge is assailed must prevail.