RUDRA PRATAB SINGH Vs. SARDA MAHESH PRASAD SINGH

JUDGEMENT

(1.) This is an appeal from an order passed by the Subordinate Judge of Mirzapur directing the method in which an account of the mesne profits was to be taken as against the present appellants who were impleaded as the legal representatives of Baij Nath Prasad Singh deceased.

(2.) On the 3 of March 1915, a decree was passed for possession of certain property which, among other things, directed that an account shall be taken of the dealings of Baij Nath Prasad Singh with the disputed property and of the rents and profits arising there from, and that Baijnath Prasad Singh will pay to the plaintiff what may be found due to him on the taking of the said accounts. That decree was upheld by this Court, except as regards certain mow able property, on The 30 of May, 1916. There was a further appeal to His Majesty in Council which was dismissed on the 7 of February 1921. Before the decision of that appeal by the Privy Council, Baijnath Prasad Singh died. It is stated that he died after the hearing had taken place before their Lordships and his legal representatives could not, therefore, have been brought on the record before that appeal was decided. An application for the settlement of accounts in pursuance of that decree was made on 28 February, 1921 which, among other things, asked that Rudra Pratap Singh, Jang Bahadur Singh and Upendra Bahadur Singh, sons of Baijnath Prasad Singh, might be substituted on the record in the place of the deceased. As a matter of fact, Jang Bahadur Singh and Upendra Bahadur Singh, two of the younger sons of Baijnath Prasad Singh, were already on the record of the suit which went up in appeal to the Privy Council. The only new person who was proposed to be added or substituted in the place of Baijnath Prasad Singh was Rudra Pratap Singh, his oldest son. All the same the object of the application was to make Rudra Pratap Singh, Jang Bahadur Singh and Upendra Bahadur Singh liable for the mesne profits claimed by the plaintiff, as the legal representatives of Baijnath Prasad Singh deceased.

(3.) Various objections were taken by the three sons of Baijnath Prasad Singh to the said application; but the main objection with which the Court below first proceeded to deal was to the effect that the sons were not liable for the mesne profits, if any, appropriated by Baijnath Prasad Singh, because he was in possession as a trespasser and the liability for the accounts could not, therefore, be enforced against his sons. The Court below held that the possession of Baijnath Prasad Singh, though illegal, could not bo called wrongful and that the sons of Baijnath Prasad Singh could, therefore, be made liable to render the accounts of the mesno profits which their father had appropriated. The Court below then proceeded to direct the method in which the accounts were to be determined. From that order the present appeal has been filed and the preliminary question for consideration is whether such an appeal is maintainable.