KISHNA NAND Vs. KUNWAR PARTAB NARAIN SINGH

JUDGEMENT

(1.) THE facts of this case are that on the 22nd of May, 1873, the Plaintiff instituted a regular suit for possession of certain villages which are named in his plaint, and he obtained from the Court of the Settlement Officer a decree for sub-settlement right enjoyable for life. This decree was set aside by the first Court of Appeal, which was confirmed by the second Court. The Plaintiff then appealed to Her Majesty in Council, and the decree in his favour was restored, so that he was declared entitled to recover possession of these villages, of which, in January, 1871, the manager under the Oudh Talukdars Act, Act XXIV. of 1870, had taken possession, and dispossessed the Plaintiff. The present plaint is entitled Kishna Nand Misir, Plaintiff, against the Mehdowna estate, Defendant; but it appears from the proceedings that a summons had been issued and served upon the manager of the estate. On the 21st of October, 1880, pending the suit, the estate having been released by the Government, it was asked that a fresh summons should be issued. Although this summons does not appear on the proceedings, it would appear to have been a summons to the present Respondent, who bad been put in possession of the estate on its being released by the Government. His counsel appeared for him before the Judge on the 24th of November, 1880. It may, therefore, be taken that he became the Defendant in the suit. The plaint stated that the Plaintiff, having thus regained possession under the decree of Pier Majesty in Council, was entitled to profits from the time of the dispossession and during the pendency of the suit, and claimed mesne profits for nine years. No written statement was put in; but it appears from what was stated by the counsel for the Defendant, when he appeared before the Judge, that the defence raised was that the suit was barred by the law of limitation, except as to the mesne profits for three years before the filing of the plaint; that is, before the 26th of July, 1880. The first Court gave judgment for mesne profits for that period, and refused to allow the mesne profits for the previous time. That judgment was affirmed by the Judicial Commissioner. There was also a claim for interest, which was not allowed; both Courts saying that they did not think it reasonable to allow it.

(2.) UPON the appeal to Her Majesty in Council which has now been heard, three questions were raised by the learned Counsel for the Appellant. First he contended that under the law of limitation he was entitled to a greater amount of mesne profits than had been allowed. The Article 109 of the second schedule of Act XV. of 1877, which was the Limitation Act in force at the time when the suit was brought, was referred to. That Article is in these terms :

(3.) THE remaining question was whether interest ought to have been allowed on the mesne profits for the three years. It is not necessary to say anything upon the question whether in the present state of the law, having regard to the provision in the Procedure Act, in which there is an explanation of mesne profits, interest was allowable. In the present case the claim cannot be put higher than that it is a matter for the Court to determine under the circumstances, whether it is reasonable to allow interest. There is no rule obliging the Court to allow the interest. It is a matter in the discretion of the Court, upon the consideration of the facts of the case. In this case both the Courts have considered that it was not reasonable that interest should be allowed; and there are no facts proved which would enable their Lordships to say that this is a wrong decision. Mr. Sykes argued that the interest ought to be allowed, because the present Defendant, in getting possession of the estate at an earlier period than he might otherwise have done, has had the benefit of the use of the money. But there is nothing in the evidence to support this, or to shew that it was the fact. The question must be left as it has been decided.