PONNAPALLI VENKATAPPAYYA Vs. PUSHADAPU RAMASWAMI

JUDGEMENT

(1.) These appeals can conveniently be disposed of in one judgment. They arise out of two suits, O.S. No. 209 of 1922 and O.S. No. 212 of 1922 of the Court of the District Munsif of Repalle. The appellants were the plaintiffs. They asked for the ejectment of the respondents from lands which the Respondents had held as their tenants, notices to quit having been served upon them. It was the case of the appellants that the notices terminated all right of occupancy. The respondents strongly contested tins contention. Their case was that the lands constituted part of an estate within the meaning of the Madras Estates Land Act, 1908. The District Munsif rejected the respondents plea and decreed the suits. The District Munsif's judgment was concurred in by the Subordinate Judge of Tenali and by this Court in second appeals. The respondents, however, carried the matter to the Privy Council and the Judicial Committee reversed the decisions of this Court and of the Courts below on the ground that the lands did form part of an estate within the meaning of the Act. Consequently the appellants were only entitled to the melwaram right, the kudiwaram right being vested in the respondents.

(2.) As the result of the decree passed by the District Munsif, the appellants went into possession on the 3 July, 1923, but by reason of the decision of the Privy Council the respondents were entitled to resume possession, which they did soon after judgment had been pronounced by Judicial Committee. Notwithstanding this the respondents did not apply for restitution until 1936. Having won in the Privy Council they were entitled under the provisions of Section 144 of the Code of Civil Procedure to be placed in the position which they would have occupied but for the decrees passed by the District Munsif. Therefore they were entitled to recover from the appellants what they had lost by being deprived of the kudiwaram right. They claimed, however, that they were entitled to the whole of the mesne profits of the lands from the 30 September, 1922, the date on which the suits were decreed, to the date in 1931 when they regained possession, without any deduction in respect of rent. In the course of the hearing of the restitution application before the District Munsif the respondents abandoned their contention that they were entitled to restitution as from the 30 September, 1922, and accepted the 3 July, 1923, the date on which the appellants went into possession, as being the proper starting point, as it obviously was. The District Munsif held that the period expired in 1929 when the respondents regained possession and not in 1931, but he upheld their main contention that they were entitled to the whole of the profits of the lands without any deduction for rent. In this connection the District Munsif relied on Lakshmi Narasimha Rao v. Seetharamaswami (1916) 3 L.E. 405. The appellants appealed to the Subordinate Judge of Tenati, who also felt himself bound by that decision and therefore concurred in the judgment of the District Munsif. The present appeals are from the decrees of the Subordinate Court. They have been placed before a Full Bench as King, J., before whom the appeals came in the first instance was of the opinion that the decision in Lakshmi Narasimha Rao V/s. Seetharamaswami (1916) 3 L.W. 405 required re-consideration.

(3.) In Lakshmi Narasimha Rao V/s. Seetharamaswami (1916) 3 L.W. 405, Sadasiva Aiyar and Moore, JJ., held in similar circumstances that the tenants who had been dispossessed as the result of proceedings taken by the landholder were entitled to the mesne profits of the lands for the period for which they were out of possession, without any deduction of rent. The basis of this decision was that the expression mesne profits meant those profits which the person in wrongful possession of such property actually received. The learned Judges, however, overlooked the real position. The tenants were only entitled to restitution and therefore they ere merely entitled to be put in the position which they would have been in had they been enjoying the kudiwaram right throughout the period of dispossession. The value of the kudiwaram right is represented by the net value ofthe produce, less the portion which must be delivered to the landholder as the holder of the melwaram right. It is not a matter of the awarding of mesne profits in the sense ordinarily meant. As already indicated the tenants are merely entitled to recover the value of that part of the produce of the land which would have been theirs had they been allowed to remain in possession. We consider that the decision in Lakshmi Narasimha Rao V/s. Seetharamaswami (1916) 3 L.W. 405 is clearly wrong and should be overruled. It may be added that the correct view was taken by another Bench of this Court (Oldfield and Venkatasubba Rao, JJ.) in Golkonda Ramachandrudu V/s. Inuganti Venkata Narasimha Rao Garu (1923) 44 M.L.J. 486. A similar decision was given by the Calcutta High Court in P.C. Tagore V/s. Mathura Kanta Das (1937) 41 C.W.N. 1015. It follows that the appellants are entitled to succeed in their appeals.