KALIDAS DAS Vs. SATYESH CHANDRA SARKAR

JUDGEMENT

(1.) This appeal has arisen out of a suit which was instituted by the plaintiffs for recovery of possession of a patni taluq on a, declaration of the plaintiff's title thereto and after annulment of the encumbrances, if any, claimed by the defendants, and also for mesne profits. A decree having been passed in plaintiff's favour defendant 2 has preferred this appeal.

(2.) The facts, according to the plaintiffs, are the following: Touzi No. 148 of the Birbhum Collectorate which comprises lot Gomai was sold for arrears of revenue on 27 March 1924, and was purchased by defendant 17 in the benami of defendant 16. On 7 December 1924, defendant 16 took possession of the mehal through the Collectorate. Thereafter, on 5th January 1925, defendant 16 executed a deed of release in favour of the defendant 17. On 30 January 1925 (=17 Magh 1331) defendant 17 settled the mehal in patni with the plaintiff's with power to annul incumbrances, if any. The zamindari originally belonged to the deity Radharaman Jieu Thakur and there was a patni under it of which the holder at the time of the sale was defendant 1. Defendants 2 to 12 are darpatnidars of several interests under defendant 1. Of these defendant 2, who is the appellant, has 13 as odd darpatni interest in five of the villages, and eight annas darpatni interest in the sixth one-lot Gomai consisting of six villages in all. Defendants 13 to 15 are mortgagees from some of the darpatnidars. The contesting defendants were defendants 1 and 2, who took various defences. Of these such as are of any importance now will be referred to hereafter. The suit was instituted on 27th January 1926. During the pendency of the suit the patni of the plaintiffs defaulted in the payment of its rents and in consequence thereof it was sold under the Patni Regulation on 1st Jaistha 1335 and purchased by defendant 17.

(3.) The Subordinate Judge declared the plaintiff's title to the patni up to 1 Jaistha 1335, the date on which it was sold as aforesaid, and annulled the incumbrances of defendants 2 to 12. He held that defendant 1 is only a benamidar for defendant 3. He held further that the plaintiffs were not entitled to get possession as they had no subsisting interest at the date of the decision, the patni having been sold up as aforesaid on 1 Jaistha 1335. He held however that the plaintiffs were entitled to mesne profits from defendant 3, in respect of the period of one year from 30 January 1925 (=17 Magh 1331, date of the creation of the plaintiff's patni) up to 27 January 1926 (date of this suit), such mesne profits to be the amount which defendant 3 as patnidar had to pay to the zamindar; and that for a period of two years and three months, i.e., from the date of suit up to 1 Jaistha 1335 (date of the sale of the plaintiff's patni) the plaintiffs would get mesne profits against defendants 2 to 12, jointly, on the footing of their being trespassers, such mesne profits being what the defendants themselves could have realized from the tenants of the mehal.