NAFAR CHANDRA PAL CHOWDHURY Vs. KAMINI KUMAR LAHIRI

JUDGEMENT

(1.) This is an appeal against a judgment and decree of the Subordinate Judge of Nadia in a case brought by the present appellants, as plaintiffs, to recover possession of two darpatni holdings, with mesne profits.

(2.) It appears that the present appellants are purchasers of the paini right at a sale for arrears of rent, and that, under Section 167 of the Bengal Tenancy Act, they served notices on Rajabala Debi, the daughter and heir of Radha Ballabh Gossain, annulling the darpatni tenures and requiring her to give up possession. The notices were served on the 4th June 1901, but she refused to give up possession; and the present suit was instituted on the 13th April 1904. On the 31st July 1905, the suit was dismissed. The suit was instituted against Rajabala Debi and, after it had been dismissed in the Court of the Subordinate Judge, she died. There was an appeal to the High Court by the plaintiffs and the three sons of Rajabala were substituted for her as respondents. The appeal was decreed on the 28th August 1907, and the suit was remanded for re-trial by the Court of first instance. On the 30th July 1908, the Court of first instance decreed the plaintiff s claim for possession and for mesne profits from the 4th June 1901, up to the date of delivery of possession. In the judgment, the Subordinate Judge distinctly stated that, as the original defendant Rajabala was dead, her legal representatives would be liable for mesne profits which had accrued prior to the death of Rajabala to the extent only of Rajabala s assets which had come into their hands at her death, and that for the mesne profits subsequent to her death, they would be liable personally. In the decree as originally drawn up, mesne profits were awarded with interest at six per cent, per annum, against the three sons who had been substituted as defendants; but on an application made to the lower Court, the decree was amended on the 7th November 1908, in the following terms: "If there be any property left by Rajabala and which has come into the hands of her heirs, then that property will be liable for mesne profits for the period from the date of service of notice up to the date of the death of the defendant Rajabala. The heirs will be personally liable for mesne profits for the period subsequent to the aforesaid period."

(3.) The plaintiffs have now appealed to us and in support of their appeal, the main contention advanced is that the decree for mesne profits ought to have been against the sons for the whole period during which the plaintiffs, were kept out of possession.