CHHAGANMULL AGARWALLA Vs. AMANATULLA MOHAMMAD PRODHAN

JUDGEMENT

(1.) The suit out of which this appeal arises was instituted by the plaintiff for recovery of possession of 12 hals of land with mesne profits. The plaintiffs claimed to have purchased a durchukani tenancy comprising of 16 hals of land under a kobala dated 1312 B.S. from certain persons who along with two others (who subsequently left the land) had obtained dur-chukani settlement in respect of the said quantity of land. The chukani out of which this dur-chukani settlement was made comprised of 171/2 hals of land. There were proceedings under section. 145, Criminal Procedure Code, between the plaintiffs and the defendants, which ended in an order under that section in respect of 4 hals in favour of the plaintiffs, 3 hals in favour of the defendants, and an order under Section 146, Criminal Procedure Code, in respect of the remaining 9 hals of the durchukani. The plaintiffs instituted the suit for the 12 hals of which he had failed to be declared in possession as aforesaid.

(2.) The Subordinate Judge gave the plaintiffs a decree for recovery of possession in respect of 53 acres of land, viz., such of the suit-plots as were recorded in the settlement khatian as the plaintiffs durchukani, The other plots claimed in the suit were shown in the khatian as patit and there was no note against them of the dur-chukanidars possession; and in respect of them the plaintiffs suit was dismissed. The Subordinate Judge also directed that the plaintiffs be awarded mesne profits in respect of the said lands for which decree for recovery of possession was made.

(3.) By this direction in the decree the plaintiffs were awarded mesne profits not merely for 12 hals of lands of which they were deprived of possession by the orders under sections 145 and 146, Criminal Procedure Code aforesaid, but also of the 4 hals in respect of which their possession was maintained in the proceedings under Section 145, Criminal Procedure Code, as these 53 acres represented the portion of the durchukani consisting of 16 hals (651/2 acres) less an area of 12 acres odd consisting of a number of plots recorded in the khatian as patit.