SHEOBALAK SINGH Vs. ACHUTANAND SINGH

JUDGEMENT

(1.) This is a second appeal from an order of the learned District Judge of Muzaffarpur, dismissing an appeal from an order of the learned Munsif in an execution matter. The respondent-decree-holders had obtained a decree against a number of judgment-debtors for mesne profits. It appears that one of the judgment-debtors paid Rs. 44 to the decree-holder claiming that that was his proportionate share of the amount decreed. This payment was certified, and in the certification it is said that that particular judgment-debtor had paid his proportionate share of the judgment-debt and that the decree-holder did not propose to levy execution against him.

(2.) Execution was then taken out against the appellant for the balance of the decretal amount. The appellant objected that he was not liable for anything more than his proportionate share which, we are told, is a one anna six pies share and he applied for depositing his quota in Court. The learned Munsif held that execution was leviable against the judgment-debtor-appellant for the whole of the balance, and on appeal this view was upheld by the learned District Judge. The judgment-debtor has, therefore, preferred a second appeal to this Court. It appears that the judgment-debtors had settled certain diara land with third persons. The respondents brought a suit against the judgment-debtors claiming that the latter had no right to settle these lands and prayed for a decree for possession and mesne profits. The suit was decreed and mesne profits was awarded against all the judgment-debtors. I may observe that the judgment- debtors were co-sharers maliks who claimed the right to settle this land. As cosharer maliks each of them had definite shares in the village.

(3.) On behalf of the appellant it has been contended by Mr. Sarjoo Prasad that the decree for mesne profits, though on the face of it a joint and several decree, is in fact a decree against the judgment-debtors for their share of the total sum awarded. Counsel relies upon the case in Gurudas Kundu V/s. Hemendra Kumar A.I.R. 1929 P.C. 300. In that case land to which three families of zamindars were entitled in certain shares became diluviated. On reformation, the Government took possession and let it on a patni lease. One of the three families recovered the land from the Government, and continued the patnidar in possession. Subsequently, members of the other two families sued the family who had recovered the land, and the patnidar, claiming possession of their shares and mesne profits, which they valued down to the date of the plaint. In 1906, they were decreed possession and mesne profits to be ascertained in execution. The decree was finally affirmed by the Privy Council in 1917. Owing to the appeals, the plaintiffs did not obtain possession until 1919. The question arose in the case as to the liability of the various defendants for these mesne profits which had been awarded. The decree was in these terms: It is ordered that the claim of this suit be decreed with costs and mesne profits and interest against the principal defendants and the defendants subsequently added.... The amount of mesne profits to be ascertained in execution. 5. It is clear from the form of the decree that it was a decree for mesne profits against all the defendants. Before their Lordships of the Privy Council, it was contended that as the decree was joint and several each and every one of the defendants could be made liable for the whole of the decretal amount. Dealing with this part of the case, Viscount Dunedin, who delivered judgment, observed at page 8: Their Lordships have great difficulty in looking upon Srish as a trespasser, or, for that matter, in one sense even the Kundus as trespassers, because they were in possession of the land and on the only legal title to it which existed, namely, the lease from the Government. It is quite true, in one sense that they were in wrongful possession because they were taking the whole profits, whereas they were only entitled to 6 annas of the profits and not to 16 annas of the profits. Be that, however, as it may, their Lordships cannot accept this argument. They do not view the decree as a proper joint and several decree. They think it is to be construed applicando singula singulis. Let this test be taken. Suppose any one of the numerous defendants had refused to quit possession, could all the other defendants have been put in prison because that one defendant was in contumacy to the decree? What authority is there for saying that under such a decree as against any one particular defendant you are entitled to say: I will hold you liable not for the mesne profits which you got according to the terms of the Act, but for the mesne profits which somebody else got and with whom, under the decree, you are liable? Their Lordships think it would be the height of injustice to hold that and they do not see that they are bound to hold it. 6. The case before their Lordships was a case of land which had re- appeared from water which had been dealt with by a person not entitled to the 16 annas. In the present case e the land concerned is similar land which had been dealt with by the cosharer maliks when they had no right in law to settle it. The co-sharer maliks had received, presumably, the rent of this land in proportion to the shares which they held. That being so, it appears to me that this is a case precisely covered by the decision of their Lordships of the Privy Council. Mr. Nawal Kishore Prasad has contended that the decision of their Lordships must depend upon the form of the decree; but, as I have pointed out, the decree in the case before their Lordships was as this decree is a joint and several decree in form. Even so, their Lordships held that in substance it was a decree against the various persons for their shares of the mesne profits. 8. The case in Gurudas Kundu V/s. Hemendra Kumar A.I.R. 1929 P.C. 300, was considered by a Bench of the Calcutta High Court in Kalidas Rakshit V/s. Keshablal Majumdar , in which it was held that where various sets of people, possessing different interests in land, are held liable for mesne profits, the executing Court will adjust and apportion the respective amounts of such mesne profits to be paid by each. At page 1044 Ghose J. observes: This ought to dispose of the appeal, but one small point has been taken because of the decision of their Lordships of the Judicial Committee in Gurudas Kundu V/s. Hemendra Kumar A.I.R. 1929 P.C. 300. Mr. Bhattacharya urges that, having regard to the fact that there are various sets of people possessing different interests in the land, there ought to be in the decree for mesne profits an apportionment of the amount of mesne profits leviable from each set of defendants. If this point had been taken before the lower appellate Court in the form in which it has been taken, it would probably have found mention in the judgment of the lower appellate Court. But, be that as it may, when the decree for mesne profits, which the plaintiffs have obtained is put in execution, an inquiry of this nature will no doubt be made by the appropriate Court, and, in this connexion, the attention of that Court may be drawn to the observations of their Lordships in the case referred to above. 8. In this case their Lordships did direct that the inquiry should be held; but it is clear j from the observations of Ghose J. that they were of opinion that such an inquiry should and could be held even if no such direction had been given. The learned Munsif distinguished this case on the ground that a direction was given; but as I have pointed out, that is really no distinction. This point does not seem to have been considered by the learned District Judge as his judgment is confined to another point which has not been pressed before us. It was urged by Mr. Nawal Kishore Prasad that the case should go back for the learned District Judge to consider this point. The point is one of law, and as all the facts are before us it can be decided by this Court without any further reference to the District Judge. 9. The other point taken in the Courts below was that the decree-holders had waived their right of treating this decree as a joint decree by accepting the proportionate share of one of the cosharer judgment- debtors. As I have said, this point has not been pressed, and it is not necessary, therefore, to express any opinion upon it. In my opinion, on a true construction of the decree, it is not a joint land several decree but a decree against the defendants for their respective shares of the mesne profits. 10. For these reasons I would allow this appeal, set aside the orders of the Court below and allow the objection of the judgment-debtor. The appellant is entitled to his costs in this Court and in the Courts below. Counsel informs us that a sale has taken place of the appellant's property for the balance of the decretal sum. Clearly this sale cannot now stand and will have to be set aside. Dhavle, J. I agree.