MADAN KAPALI Vs. KRISHNA CHARAN KAPALI

JUDGEMENT

(1.) This is an appeal by some of the defendants in a suit for mesne profits. The point for determination as mentioned by the Subordinate Judge in the Court of appeal below was whether the plaintiffs were entitled to get the entire mesne profits claimed by them in, the suit from all the principal defendants. The plaintiffs got a decree for the entire mesne profits as claimed in the suit for three years, 1830, 1331 and 1332, B. S., against defendant 13 alone and he also got a decree for one-third share of the mesne profits claimed by him in the suit, that is, for the year 1330 B. S. only against the principal defendants other than defendants 3, 7 and 10. It would appear from the definite finding of fact arrived at by the Court of first instance in this case that so far as these defendants other than defendants 13 were concerned, they reaped jute and paddy in the year 1330 B. S.. and that so far as the other years in suit 1331 and 1332, B. S. were concerned they did not possess the land in those years. This finding as arrived at by the trial Court has not been disturbed in any way by the Court of appeal below, but in the opinion of the learned Subordinate Judge in the lower appellate Court, the persons dispossessing the plaintiffs from the lands were jointly and severally liable for mesne profits, and it was immaterial which among the wrongdoers continued in such wrongful possession, and which abstained from such possession,

(2.) In this view of the question, the learned Subordinate Judge held that the defendants other than defendant 13, even if they were net in actual possession of the lands in the years 1331 and 1332 they were liable for the entire amount of mesne profits as claimed in the suit and as decreed by the Court of first instance. The decree as passed by the Court of first instance was therefore reversed with reference to the liability of these other defendants, defendants other than defendant 13 and the minor defendants 4, 7, 9 and 10. It appears to us that the view taken by the learned Subordinate Judge in the Court of appeal below that it was immaterial which among the wrongdoers continued in such wrongful possession and which abstained from such possession, is not sustainable and is not a correct proposition under the law. It is well established that so far as mesne profits were concerned each occupant was answerable for the time he has been in possession, and the defendants could not be charged with damages for the period when they were not in possession. Damages ought to be given for no longer a time than the defendant was proved to be in actual possession: (see, in this connexion the judgment of Sir Asutosh Mookerjee, J., in the case of Kali Churan Sinha V/s. Asutosh Sinha [1917] 33 I.C. 660, at p. 147 of 25 C. L. J., in which the authorities in support of the proposition have been referred to. Our attention has been drawn by the learned advocate appearing for the plaintiff-respondent in this appeal, to certain authorities of this Court, as also to passages in Pollock's Law of Torts, dealing with the question of joint and concurrent wrong and liability of joint-tortfeasors so far as mesne profits or damages were concerned. It is to be mentioned that we are not concerned with a question of that description in the present case. The question before us is not that of a general and concurrent wrong as between joint tortfeasors, but whether a person who was not in actual possession was answerable for the time that he has not been in possession: whether a person could be charged with damages for a period when he was not in occupation. According to the finding arrived at by the Court of first instance, to which reference has been made, and which finding has not been reversed by the Court of appeal below, the decision and decree of the Subordinate Judge in the Court of appeal below cannot be supported and they must accordingly be reversed. The decision and decree as passed by the Court of first instance in this case are accordingly restored. In the circumstances of the case, there will be no order as to costs. M.C. Ghose, J.

(3.) I agree.