JOGENDRA NATH MAITI Vs. RAM GOPAL DAS

JUDGEMENT

(1.) These two appeals arise out of a decree by which mesne profits were assessed. The facts are these: One Sib Chandra Das was the tenant with regard to several jamas under Defendants Nos. 3 to 5. The total area of the jamas is 129 bighas. Sib Chandra mortgaged these jamas to the plaintiffs some time in 1901. The Defendants Nos. 3 to 5 brought one suit for rent for all those jamas in 1905 against Sib Chandra. A decree was passed in that suit on 2 August, 1905. The decree was executed in 1906 and Defendants 3 to 5 purchased the interest of the mortgagor Sib Chandra in execution of their decree and took possession. Under the law the landlords could not claim to have purchased the jamas free from in-cumbrance having brought one suit for rent for a number of jamas. The plaintiffs then brought a suit on their mortgage against Sib Chandra in 1909 in which the Defendants 3 to 5 were joined as defendants the Defendants 3 to 5 claimed a paramount title and asked to be discharged from the suit, and that was done. The mortgage suit was decreed and the plaintiffs purchased the property in execution of their own decree and took symbolical possession in July 1912. The Defendants Nos. 3 to 5, who were in actual possession, resisted the plaintiffs in taking actual possession.

(2.) Thereupon the plaintiffs brought the suit out of which this appeal arises, which was No. 54 of 1916, against Defendants 3 to 5 for khas possession and wasilat, In that suit other persons were joined as defendants who were said to have been in possession of the property under Defendants 3 to 5. This suit was decreed. Khas possession was allowed and a decrer made for mesne profits. The plaintiffs took possession in May 1917. Proceedings were then taken for ascertainment of mesne profits and a commissioner was appointed. The commissioner made hid report on the 30 April 1918. In hid opinion the plaintiffs were entitled to get mesne profits calculated on the basis of the produce which might have beers grown on the land. The defendants did not produce any paper showing what was actually received from the land in question. Objections were taken by both parties to the report of the commissioner. The plaintiffs wanted more, and the defendant, amongst other things, urged that mesne profits should be calculated on the basis of rent. The matter came up before the Subordinate Judge for hearing and in his judgment dated the 8 September 1920 the Subordinate Judge held that the plaintiffs were entitled to mesne profits on rental basis, that is, on the assumption that the lands in suit were let out to tenants by the defendants on cash rent and bhag rent. He held therefore that the commissioner's calculation was wrong and he said that he would determine the amount of cash rent in taking further evidence, and he also said that he would determine the bhag rent on the evidence taken by the commissioner.

(3.) Subsequently the defendants produced certain collection papers, and the question came up before another Subordinate Judge who succeeded the previous Subordinate Judge, and he decided the matter by his judgment dated the 30 July 1924. The Subordinate Judge held that the plaintiffs were only entitled to mesne profits calculated on the basis of the rent realized by the defendants. He held that the rent and cesses payable by the tenants on the land amounted to about Rs. 260 per year. From this amount he deducted the rent payable for the land to the defendants as land lords, and he calculated the annual profits on the difference. In addition to this sum he gave the plaintiffs a decree for Rs. 1,050 which the Defendants 3 to 5 took as Salami from the tenants they had settled on the land. The total amount came up to Rs. 2305-9-0. The plaintiffs have appealed against that decree and claimed Rs. 5,500 in addition to what has been allowed by the Subordinate Judge. Their appeal is No. 114 of 1925. The defendants appeal against that part of the decree by which the Subordinate Judge allowed the plaintiffs the amount of Salami which the defendants had obtained from their tenants as also certain costs allowed against them. Their appeal is valued at Rs. 2,958-8-0; this appeal is No. 192 of 1925.