MANMATHA NATH DUTT Vs. MATILAL MITRA

JUDGEMENT

(1.) These two appeals are by the defendants against the final decree made by the Subordinate Judge of Khulna assessing the amount of mesne profits in two suits brought by the vendor of the present respondents. The suits were instituted in 1908 by one Nag for recovery of possession of certain lands and for mesne profits from Assar 1314 till the date of the suits and also subsequent mesne profits till the date of recovery of possession. The suits were originally brought in the Munsiff's Court: then they were refiled in the Court of the Subordinate Judge as the Munsif found that the value of the subject-matter of the suits was beyond his jurisdiction. During the pendency of the suits the original plaintiff executed a conveyance in favour of the present respondents on 10 December 1911 and the contesting respondents were substituted for the original plaintiff. They carried on the suits and obtained decrees in the trial Court. There were appeals to the District Judge and then second appeals to this Court in both of which the respondents were successful. Subsequently, the respondents applied for assessment of mesne profits. In November 1925 the amount of mesne profits assessed by the Subordinate Judge in the two suits was about Rs. 8,000. The same arguments were addressed in both the appeals and it will be sufficient to give reasons with regard to one of them.

(2.) A preliminary objection has been taken on behalf of the respondents as to the forum of the appeal. Their contention; is that the appeals ought to have been preferred in the Court of the District Judge, the reason being that the original value of the lands in suit and the mesne profits claimed up to the date of the suit fall below Rs. 5,000 although the value of the lands added to the amount of mesne profits now decreed exceeds Rs. 5,000. Reliance is placed upon certain expressions in a judgment of myself in the Full Bench case of Bidyadhar Bachar v. Manindra Nath Das , and it is contended that the appeals should lie to the District Judge. The observations referred to were, however, made with reference to the jurisdiction of a Munsiff to make a decree in excess of his pecuniary jurisdiction for mesne profits pendente lite and no question was involved in that Full Bench case as to the forum of appeal from a decree of the Subordinate Judge under the present circumstances. The observations with regard to an appeal in that case referred to the provisions in the Bengal Civil Courts Act, Section 21(2) about an appeal from the decision of a Munsif. The question as to the forum of appeal in a case such as this was decided in the previous Full Bench case of Ijjatulla Bhujan V/s. Chandra Mohan Banerjee [1907] 34 Cal. 954. The appeal, therefore, to this Court is competent and the preliminary objection taken on behalf of the respondents must, accordingly, be overruled.

(3.) On the merits a large number of objections has been taken by the learned advocate for the appellants.