SUDARSAN PRASAD SINHA Vs. JADUNANDAN TEWARY

JUDGEMENT

(1.) This is an appeal by the decree-holders against an order of the Additional District Judge of Muzaffarpur, reversing a decision of the Munsif of Hajipur rejecting an application under Section 47, Civil P.C. The decree under execution is one for mesne profits in which there is a number of judgment-debtors. The execution has been filed for the whole decretal amount against some of the judgment-debtors. Two objections under Section 47 were filed by different judgment-debtors raising the point that they should not be held liable under the decree for the whole amount, but only for the amount of mesne profits corresponding to the portion of the suit land in their separate possession. There were other contentions but we are not concerned with them in the present case. Both the objections were rejected by the Munsif, but only one set of applicants pursued the matter, with the result that the application was allowed in appeal by the Additional District Judge.

(2.) The decree under execution has not been printed, and the copy of the decree, which was on the record of the Courts below, has been returned to the party concerned. Both the Courts below are definite, however, that the decree, in its form, is a joint and several decree against the judgment-debtors, and the correctness of this has not been challenged before us. The Additional District Judge says: It is quite true that the decree was joint and several against all the nine judgment-debtors and that there was nothing illegal in the respondents executing it against the appellant alone. There have, however, been cases where on enquiry it has been held that in such oases it is only fair that the judgment-debtors should be made liable for the mesne profits in proportion to the profits actually enjoyed by them.

(3.) In allowing the appeal, the Additional District Judge relied on Sheobalak Singh V/s. Achutanand Singh A.I.R. 1943 Pat. 81 which itself relied on Gurudas Kundu v. Hemendra Kumar A.I.R. 1929 P.C. 300. The case before the Privy Council related to land which had disappeared under the Ganges, and had reappeared after a considerable period of years in juxtaposition to some property held by the Government. The Government assumed the land to be an accretion to their property and put tenants upon it. The property, however, really belonged to 3 sets of zamindars the Kundus, the Mukherjees and the Roys. The Roys and the Kundus applied to the Collector claiming the land, but the Roys did not persevere. The Kundus persisted and subsequently the land was released in their favour, and they were put in possession. The Government during their possession of the land, let it in patni to a person of the name of Srish. When the Kundu family got possession they let Srish to continue as patnidar. After this the Mukherjees and the Roys, who were entitled to 10 annas share of the land, the Kundus being entitled to only 6 annas, sued the Kundus, the Government and Srish for recovery of possession and for mesne profits. The decree in the suit was as follows: It is ordered that the claim of this suit be decreed with costs and mesne profits and interests against the principal defendants and the defendants subsequently added.... The amount of mesne profits to be ascertained in execution.