RAI KIRAN CHANDRA ROY BAHADUR Vs. ERFAN KARIKAR

JUDGEMENT

(1.) In this case a Rule was issued on the opposite parties 2 to 139, the tenants defendants, to show cause why a certain order of the Subordinate Judge, Pabna, dated 30 November 1932, should not be set aside. It appears that there was a suit for khas possession of about 400 bighas of land and for mesne profits. Some of the plaintiffs succeeded before the Subordinate Judge who made a decree for khas possession of the lands which they claimed and for mesne profits. With regard to the rest of the plaintiffs he held that their suit failed owing to some question of notice. The result was that there was an appeal to the High Court where it was decided that notice had been waived and that the rest of the plaintiffs were entitled to the property which they claimed and that otherwise the decree of the Subordinate Judge would stand. In passing it may be noted that the High Court decreed khas possession in favour of the second lot of plaintiffs, but seems to have forgotten to pass a decree for mesne profits. A question may arise at some time hereafter, whether the effect of the judgment of the High Court is to apply that part of the Subordinate Judge's judgment which decreed mesne profits, to the second lot of plaintiffs in whose favour the High Court passed a decree for possession, or whether the judgment of the High Court amounts simply to a decree for possession, and not for mesne profits.

(2.) The Subordinate Judge passed a decree Under Order 20, Rule 12, Civil P.C. for (a) possession, (b) mesne profits, and (c) directing an inquiry as to mesne profits. He did not however decide at the time when he passed the preliminary decree, what was to be the basis upon which the mesne profits were to be assessed. He said that that matter could be decided thereafter, when the plaintiffs made an application for the appointment of a commissioner to hold the inquiry. The result was that at a subsequent date and after the decision given by the High Court, the Subordinate Judge heard an application for the appointment of a commissioner and then proceeded to decide the basis upon which the mesne profits should be assessed. In my opinion this procedure was wrong. There is no provision in the Code for deciding the basis upon which mesne profits are to be assessed, at a date subsequent to the passing of the preliminary decree. When the Judge passed the preliminary decree Under Order 20, Rule 12 and directed an inquiry as to mesne profits he should have at the same time, decided the basis upon which the mesne profits were to be assessed. Then at a subsequent date an application could have been made by one or other of the parties for the appointment of a commissioner who would proceed to hold an enquiry, and assess the mesne profits upon the basis which the Judge had already directed when he passed the preliminary decree.

(3.) It is against the decision of the Judge as to the basis upon which the mesne profits are to be assessed, that the present application has been made, under Section 115, Civil P.C. The Judge decided that the basis as against the Secretary of State, should be the rent which he had realized from the tenants, if this was a fair and proper rent, or the rent which he could have realized by the exercise of due diligence, having regard to the rate of rent of similar lands in the locality. The latter factor of course need only be considered if the rent realizable by the exercise of due diligence would have been greater than the rent which he actually realized. With regard to the tenants the Judge decided that the basis for calculation of mesne profits should be the rate of rent which would be fair and equitable for the lands in question.