SARADA CHARAN SEN Vs. BANKA BEHARI DAS

JUDGEMENT

(1.) Two objections have been taken to the decree made for mesne profits by the Court below. The first is that the lands with regard to Chak No. 8 and Chak No. 20 were in the possession of tenants and mesne profits should be calculated on the rent basis instead of on the basis taken by the Subordinate Judge that the defendants were in khas possession. The Subordinate Judge says in his judgment that no evidence was given before him and the commission was silent as to the fact whether the defendants had been in khas possession or in possession of the lands decreed to the plaintiffs through tenants. As a matter of fact it has been pointed out on behalf of the appellants that in the schedule attached to the commissioner's report he says that some lands are in the possession of tenants. No evidence, however, was given before the Court, but evidence apparently was adduced before the commissioner that certain lands were in the possession of tenants That, however, does not exonerate the defendants from liability for mesne profits as defined in Section 2(12), Civil P.C. The defendants have given no evidence to show that they could not cultivate the lands themselves or that the lands were in possession of tenants before they entered upon them as trespassers. Under these circumstances the defendants are bound to pay mesne profits on the basis as if they were in direct possession of the lands in suit. The first ground, therefore, fails.

(2.) The second ground is that mesne profits had been allowed for a period which goes beyond the period prescribed in Order 20, Rule 12, Civil P.C., inasmuch as mesne profits had been allowed for a period more than three years after the date of the decree. As a matter of fact the respondents decree holders claim only mesne profits for a period within three years of the date of the decree whether mesne profits were calculated for a period beyond that date was not taken as a ground of objection before the Subordinate Judge, nor does it appear that this point was specifically taken in the grounds of appeal. Under these circumstances we are unable to allow this question to be raised before us for the first time during the argument.

(3.) The appeal must, therefore, stand dismissed with costs. We assess the hearing-fee at ten gold mohurs.