CHINDHA Vs. NARAYAN GOVIND RAO

JUDGEMENT

(1.) THE plaintiff-respondent obtained a decree for possession of the fields in suit against the defendant-appellant. He alleges that after being put in possession in execution proceedings he was dispossessed by the defendant. He therefore again sues for possession and mesne profits. The defendant pleads that the plaintiff's remedy is by way of execution and not by separate suit. He pleads that the plaintiff did not obtain possession in execution and was not dispossessed.

(2.) THE lower Courts have held that the plaintiff has a remedy by separate suit. The defendant appeals against this finding.

(3.) THE plaintiff has filed a cross-objection with regard to mesne profits which the first Court had allowed but the lower appellate Court has disallowed. It is urged that the latter Court has disregarded the view enunciated in Jailal Sao v. Lal Fateh Singh A.I.R. 1924 Nag. 117 as to the burden of proof in a suit for mesne profits. The plaintiff claimed what he stated would be the actual profits of the land in dispute which the defendant would, with ordinary diligence, have received. The defendant alleged that he received no profits at all during the period for which they were claimed. Both parties adduced evidence of actual profits only and the lower Courts decided the point on the basis of such evidence. The lower appellate Court has accepted the evidence of the plaintiff's witnesses and upon that evidence has held that there were no profits. I do not see how under these circumstances the view in 20 N.L.R. 52 can be said to have bean disregarded. There is no evidence on the record as to the letting value of the field. The rent payable to the landlord is no criterion of the letting value and was never referred to in the pleadings as such criterion. The cross-objection also fails.