RAMAKKA Vs. VNAGESAM

JUDGEMENT

(1.) This was an application by the fourth defendant for mesne profits on the extent of land in the enjoyment of the plaintiff between the date of the decree in the first Court and the decision of the appeal. The matter was referred by the District Judge to a Commissioner to ascertain the amount of mesne profits due. The Commissioner directed the plaintiff to adduce her evidence first, on the ground that she had been in possession of the property and was thus in the best position to state how much profit she had obtained.

(2.) The plaintiff's pleader refused to open his case, upon which the petitioner's witnesses were examined and the case was closed. Meanwhile, the counter-petitioner (plaintiff) applied to the District Court to direct the Commissioner to record her evidence. The District Judge in an order on the interlocutory application decided that the Commissioner was right and refused the counter-petitioner's request.

(3.) The questions now before us are (1) whether the District Judge was right in giving the petitioner mesne profits upon 15 acres 42 cents of wet land and (2) whether he was right in not allowing the appellant an opportunity to adduce her evidence As regards the extent of the land, the plaintiff's pleader relies on an admission made by the fourth defendant in another suit, O.S. No. 393 of 1916, that she (plaintiff) was only in possession of 8 acres 47 cents, and be argues that She petitioner is not entitled to get mesne profits on a larger extent than what he admitted that she was in possession of. The circumstances under which the statement was made in the other suit have not been proved. The Judge relied on that extent as given in the delivery warrant and I think he was right in doing so.