SURENDRA LAL CHOWDHURY Vs. SULTAN AHMED

JUDGEMENT

(1.) The respondents got a decree for khas possession against the appellants on 6 April 1925 and took delivery of possession in execution on 15 July 1925. That decree having been set aside on 1 August 1928, the appellants applied for restitution of the lands and they were restored to possession on 23 August 1928. Thereafter the appellants applied for what they called mesne profits, assessing their total claim at Rs. 978. The Courts below found that the respondents did not hold the land in khas but through tenants with whom they had settled the lands on receiving a nazar of Rs. 1,100 and at a rental of Rs. 17 a year. The said Courts have awarded the appellants Rs. 51 as the amount of mesne profits for three years during which they had remained in possession at the rate of Rs. 17 per year, on the authority of the decision in Gurudas Kundu V/s. Hemendra Kumar 1929 PC 300 and Harry Kempson Gray v. Bhagu Meah 1930 PC 82. They have taken these decisions as laying down that the criterion upon which mesne profits should be ascertained is not what the party dispossessed had lost but what the party in possession had gained. The said Court refused to give the appellants any part of the nazar of Rs. 1,100 holding that though the respondents had the use of this amount for three years they were liable for the said amount together with compensation to the tenants who would be justified in realizing the same from them.

(2.) The decisions of the Judicial Committee upon which the Court below have purported to proceed are authorities for a proposition, which must be regarded as well-settled, that the criterion for the calculation of mesne profits cannot be what the person out of possession might have got if he had been on the land. The very definition of mesne profits given in Section 2(12), Civil P.C., makes that sufficiently clear because according to the definition it is the profits which the person in wrongful possession actually received or might with ordinary diligence have received which are to be regarded. In the former of the two cases there was no case made that the person in wrongful possession could have got more than what he actually received, and so what he actually received was what the rightful owner out of possession was entitled to. The person in wrongful possession in that case had got the lands with one Srish as a lessee on it, who was holding under a lease from the Government. His contention was: I am only liable for what I really got, namely, what I got from Srish; allowing Srish to go on as he had done with Government was perfectly reasonable: you cannot think that it was necessary for me to put out Srish and begin to cultivate myself and therefore I in the terms of the Code am only liable for what I really got.

(3.) In the latter of the two cases, the wrong-doers had cultivated the lands themselves and it was held by their Lordships that the cultivation profits were the primary consideration, but that the profits should not be calculated on the basis of indigo cultivation which was done for the wrong-doer's special purpose, but that the true test must be what an ordinary prudent cultivator must have grown. In the present case the wrong-doers have not been shown to have cultivated the lands and it is admitted that they had, in fact, settled the lands with tenants. In such a case mesne profits can only be calculated on the basis of rental value of the land and must be either on the basis of such rent as the respondents in fact received or could with ordinary diligence have received. In the second of the aforesaid cases their Lordships have observed: The appellant's first contention was that the rental value of the land . . . . was the proper criterion. This would no doubt ordinarily be so where the person charged had merely let the land out to others. In such a case the rent that he received if there was no evidence could with ordinary diligence have been obtained, would be the measure of the profits for which he would be liable.