BAGESHAR MISIR Vs. MAHABIR SHUKUL

JUDGEMENT

(1.) This is a defendants appeal and arises out of a suit brought against them by the plaintiff-respondent for joint possession and mesne profits. The plaintiff's case was that the defendants had realized rent from the tenants which were due and payable to the plaintiff. The defendants denied doing so. Defendants 1 and 4, contested the suit and admitted the plaintiff's title to the property in question, but pleaded that they (defendants) had no concern with the property and, as such, they were not liable to pay mesne profits to the plaintiff. Defendant 5 also admitted that the parties had been in possession, but he contested the amount of mesne profits. The trial Court gave a decree to the plaintiff in respect of 3/4 of the two pies and old share. In appeal the learned Additional Subordinate judge decreed the suit for joint possession as well as mesne profits. Against this decision an appeal has been filed by defendants 1 to 4. The chief point for consideration is whether the suit was cognizable by the Civil Court or not. The case of the plaintiff is given in paras. 6 and 7 of his plaint para. 6 is: The defendants have entered into wrongful possession of the property in dispute, are being benefited thereby there by and are realising rent from sub-tenants.

(2.) Paragraph 7 is: The plaintiff brought some suits for arrears of rent against, the sub- tenants in revenue Court, wherein the defendants made the sub-tenants set up defence that they had paid the rent to the defendants. From this it is quite evident that the defendants have made collections from the plaintiff's tenants.

(3.) In para. 4 the plaintiff stated: The plaintiff's claim for possession of the property in question was decreed on 18 May 1922, and, through Court amin; the plaintiff obtained possession of the property in respect o? which the decree was passed, on 2 June, 1923.