SECY OF STATE Vs. HIRU MONDAL

JUDGEMENT

(1.) This is an appeal preferred by the Secretary of State for India in Council from a final decree for mesne profits passed in accordance with Order 20, Rule 12(2), Civil P.C. In order to appreciate the contention that has been urged on behalf of the appellant in this appeal it is necessary to set out a few facts. The plaintiff Hiru Mandal instituted a suit in 1920 for recovery of possession of 138 bighas of land together with mesne profits against the Secretary of State for India in Council as the first defendant and four other persons as defendants 2 to 5. The allegations in the plaint were that the plaintiff was the owner of a holding bearing No, 17 in the rent roll prepared according to the rules and orders of the Board of Revenue; that the said holding consisted of about 200 bighas of land and the rental thereof had been fixed at Rs. 237-8-0 exclusive of cesses which were fixed at Rupees 7-6-9 pies; that he was in possession of the lands but that a Kanungo of the Government had forcibly taken away straw from the lands in the month of Pous 1324 B.S. and thereafter had dispossessed the plaintiff on the 1st Magh 1324 B.S. and had put the other defendants in possession.

(2.) Two written statements were filed in the suit, one on behalf of the Secretary of State for India in Council and the other by defendants 2 to 5. The defences taken were practically on the same lines in both the written statements. It should be stated here that it was not suggested in the written statement that was filed on behalf of the Secretary of State for India in Council that the action of the Kanungo which was complained of in the plaint was something beyond or in excess of his authority. Defences on the merits were taken and these defences being considered, the Munsiff made a decree in plaintiff's favour in respect of a quantity of 113 odd bighas of land. An appeal was taken from the said decree by the Secretary of State for India in Council to the Court of the District Judge but the appeal was dismissed. From the decision last mentioned, a second appeal was taken to this Court, that appeal being No. 1312 of 1925. The contention,that was urged in this second appeal turned upon the question of limitation. But this Court, on considering the findings of fact at which the learned District Judge on appeal had arrived, came to the conclusion that the suit was not barred. It was held by this Court that the allegations as regards the cutting and taking away of straw in Pous 1334 that had been made in the plaint related only to stray acts committed by the Kanungo but that in point of fact the real cause of action arose in the month of Magh 1324, when the dispossession actually took place. On this point, it was observed thus: He (that is, the District Judge) found that the real dispossession took place when the settlement was made by Government with defendants 2 to 4 and when in pursuance of that settlement they entered into possession of the disputed land.

(3.) Now, having held that the suit was not barred by limitation and taking into consideration the other findings of fact at which the Court of appeal below had arrived, this Court dismissed the second appeal and the result was that the decree the trial Court had made was confirmed. It is necessary here to set out the terms of that decree. The decree was in these terms: It is hereby ordered and decreed that this suit be decreed on contest against defendants 1 to 4 and be dismissed against defendant 5. Plaintiff's raiyati right in the disputed land be declared and the plaintiff do get khas possession of the same. Plaintiff do also get mesne profits (to be hereafter determined) from the date of dispossession to the date of recovery of possession with annual interest up to the date of realization. Plaintiff do get costs with interest at the rate of 6 per cent per annum from defendants 1 to 4. Defendant 5 do bear his own costs.