JOGNESWAR CHATTERJEE Vs. SURENDRA NATH CHATTERJEE

JUDGEMENT

(1.) This appeal arises out of an application for ascertainment of mesne profits under Order 20, Rule 12 of the Civil P. C. and it is preferred by the judgment-debtors. The suit was instituted in 1904 for possession of a small piece of land valued at Rs. 50 and for mesne profits the extent of which was calculated at Rs. 3. The litigation with regard to this land continued for a considerable number of years, and it was finally decided in the year 1914 in favour of the plaintiffs. The present application was made in 1917 to the Munsiff for ascertainment of mesne profits for the period of dispossession including the period for which the litigation was pending. The Plaintiffs in their application to the Munsiff asked for Rs. 3,820 as the mesne profits due to them. The defendants raised various objections to the petition, and among these there was this objection that the Munsiff was not empowered to make a decree in excess of the pecuniary jurisdiction of his Court. The Munsiff held that the plaintiffs were entitled to mesne profits from September 1913 to the end of 1914 and he fixed the amount at Rs. 2,066-4-0 as principal together with twelve per cent, interest per annum on the mesne profits determined for each year which altogether exceeded Rs. 4,000. There was an appeal by the judgment-debtors which was dismissed by the District Judge, and this appeal is against the decision of the District Judge.

(2.) Two points have been argued before us. The first point is whether the Munsiff had jurisdiction to entertain the application of the plaintiffs and to pass a decree for Rs. 4,000 odd in this suit, and the second point is that the principle on which mesne profits have been calculated in this case is erroneous. Various cases have been relied on by the vakils on both sides before us, and it must be said that they are not always reconcilable. But there are two cases which I think it necessary for us to deal with. The first is the case of Bhupendra Kumar Chakravarty V/s. Purna Chandra Bose [1910] 43 Cal. 650. The decision in that case, as I read it, is that, if the plaintiff makes an application in the suit for mesne profits in excess of the pecuniary jurisdiction of the Court, the proper procedure for the Judge is to return the plaint to the plaintiff for presentation to the proper Court for decision. In that particular case, it so happened that the amount of the decree by the trial Court did not exceed the pecuniary jurisdiction of the Munsiff, but the claim for mesne profits in the suit was considerably in excess of the jurisdiction of the Munsiff's Court, It was held that the appeal which was preferred against the decision of the Munsiff to the District Judge was incompetent and, therefore, it; was directed by this Court that the plaint should be returned to the plaintiff for presentation to the proper Court. The other case to which I need refer is the case of Panchuram Tekadar V/s. Kinoo Haldar [1912] 40 Cal. 56 In that case, the decision in the case of Bhupendra Kumar Chakravarty V/s. Purna Chandra Bose [1910] 43 Cal. 650 already referred to, was distinguished on the ground that, in the case of Panchuram [1912] 40 Cal. 56, the matter was required to be decided in execution proceedings and it was held, following previous cases in this Court, that, if it was found that the amount which the plaintiff was entitled to get was in excess of the jurisdiction of the Court executing the decree it was competent for the executing Court to make a decree in favour of the plaintiff to the full extent found in his favour. The case Bhupendra V/s. Purna [1910] 43 Cal. 650 which was decided before the case of Panchuram v. Kinoo [1912] 40 Cal. 56 did not arise out of execution proceedings and therefore, the learned Judges in. the latter case held that the case of Bhupendra V/s. Purna [1910] 43 Cal. 650 did not govern the later case, Then, there was the question that the objection as regards jurisdiction was taken for the first time in second appeal and the learned Judges on that ground also did not give effect to that objection. In the present case, the circumstances are exactly what happened in the case of Bhupendra V/s. Puma [1910] 43 Cal. 650. The plaintiffs asked for mesne profits to the extent of Rs. 3,000 odd. There was an. objection made by the defendants at once to the jurisdiction of the Munsiff to try the question. The matter also does not in the present case arise in execution. As I do not think that there is any distinction between the present case and the case of Bhupendra V/s. Purna [1910] 43 Cal. 650, I think we should follow the directions given in that case notwithstanding the fact that a different view has been taken in this question in other High. Courts. The direction, therefore, must be that the orders of the Courts below are discharged and the plaint, in so far as it asks for mesne profits to be ascertained, be returned to the plaintiffs for presentation to the proper Court having competent pecuniary jurisdiction.

(3.) With regard to the second question, I do not think we ought to make any observation beyond this, that the mesne profits should be ascertained, having regard to the definition of mesne profits contained in Civil Procedure Code, Section 2, Clause (12).