MOTOOKDHARI SHUKUL Vs. JUGDIP NARAIN SINGH

JUDGEMENT

(1.) The defendants third party were the tenants of an occupancy holding of 22 bighas and odd in Msouza Roshanpur. They executed a zurpeshgi lease of the entire holding in favour of the defendant 2nd party, who has been found to be a benamidar of defendant first party in 1896, and directed the zurpeshgidar to pay the rent. It has been found that notwithstanding the zurpeshgi the tenants continued in possession somehow or other until 1310) when they fled to smother village. It has been found that the zurpeshgidars s paid the rent from time to time in execution of decrees against the tenants: in one case the dues were deposited after sale. The amounts deposited by the defendant second party from time to time were withdrawn by the plaintiffs, in some cases under protest and in one case without protest, in 1909 the question whether the mortgagee was entitled to deposit the money was fought out in Court and the learned Munsif held that he could deposit under Section 170, Clause (3) and allowed the deposit and struck off the case as satisfied, but he made a remark at the close of his judgment that this order would not affect the jural relations between the parties, which would remain as before. This suit was brought for the ejectment of the defendants from the 14 bighas odd that have fallen to the patti of the plaintiff s under a butwara by the Collector, on the ground that there was no custom of transfer and the defendants wore trespassers.

(2.) Both the Courts below decreed the suit and defendant Motookdhari Sukul of the second party has appealed.

(3.) It has been argued in bar of the appeal that the appellant has been found to be a benamidar of Ami Prosad, defendant first party, and cannot, therefore, maintain the appeal. It has been pointed out, however, that the decree for mesne profits and costs are against both defendants, first and second parties, and I think the defendant second party can appeal against the decree, and as the ground is common to himself and defendant No. 1, so far at least as the question of mesne profits is concerned, the whole case comes under review, inasmuch as there can be no decree for mesne profits unless there is a decree for possession.