RAJENDRA NARAYAN RAY Vs. BHAIRABENDRA NARAYAN RAY

JUDGEMENT

(1.) These five appeals are by the defendant and are directed against five final decrees for mesne profits passed against him by the Subordinate Judge of Rajshahi. The Commissioner appointed to ascertain mesne profits reported the aggregate amount of mesne profits in the five suits to be Rs. 17,273-8.0, but the learned Subordinate Judge has increased it considerably, his figure after amendment of two of the decrees amounting to Rs. 37,395-7-6. The plaintiffs and the defendant are co-sharers of the revenue paying estates which formed the subject-matter of the five suits (Title Suits Nos. 79 to 83 of 1911), and although their shares were slightly different in the different properties we may take it roughly that the share of the plaintiffs in zamindari and patni right is 9 1/2 annas and the defendant is the owner of the remaining 6 1/2 annas in zamindari right. There were in the past disputes and differences between them as regards the common enjoyment of joint khas lands. These were settled in the year 1899 by the plaintiffs granting settlement in kaimi mokarari right of their share in specific lands to the defendant. Kabuliyats were executed by the defendant in favour of the plaintiffs evidencing these settlements. The lands which are the subject-matter of these leases were then mostly unreclaimed, and the defendant began reclamation work. In 1911 the plaintiffs instituted the five suits mentioned above for recovery of possession of lands which according to them were in excess of the kabuliyat lands and for mesne profits. Their ease was that in 1910 they came to know that the defendant had encroached upon the khas lands of the par. ties under colour of their title under the said kabuliyats of the year 1899. They accordingly prayed for khas possession in their 9 1/2 annas jointly with the defendant of the encroached lands and for mesne profits for the period beginning from the date of dispossession till recovery of possession. These five suits were consolidated and decreed in part by the learned Subordinate Judge on 23 June 1914. The decrees directed/deli, very of khas possession to the plaintiffs jointly with the defendant and it was further directed in each suit that the plaintiffs do get a decree for mesne profits from before the institution of the suits and up to recovery of possession under C1s. (b) and (c) of Order 20, Rule 12, Civil P.C. and that the amount of the mesne profits be ascertained at a later stage of the suit.

(2.) Five appeals were preferred to this Court against the five decrees passed by the learned Subordinate Judge, and in these appeals this Court by its judgment and decrees dated 29th January 1918, confirmed the decrees of the Subordinate Judge subject to some modifications. These modifications related to some plots of lands which the Subordinate Judge had. found to be outside the kabuliyats of 1899, but which this Court found to be included in them. The preliminary decrees for mesne profits as made by the Subordinate Judge were confirmed. The plaintiffs took delivery of possession through Court on 19 December 1920 of the subject- matter of Suit No. 83, on 19 February 1922 of the subject-matter of Suits Nos. 80 and 82, and on 21 February 1922 of the subject-matter of Suits Nos. 79 and 81. Thereafter in 1922 they applied for ascertainment of mesne profits, and a commissioner was appointed to estimate them and to make a report to Court. The Commissioner submitted his report on 9th October 1928. Written objections were filed both by the plaintiffs and the defendant. The said objections were determined after about five years, i.e. in 1933, the judgment of the Subordinate Judge being delivered on 19 August 1933. The subject-matter of Suit No. 83 of 1911 which has given rise to First Appeal No. 26 of 1935 is a jalkar. The main point raised in this appeal being different from those raised in the other four appeals, the said appeal will be dealt with separately. The points raised in the other four appeals are common, except that there are additional points in First Appeal No. 138 of 1934 which is against the decree for mesne profits passed in Title Suit No. 80 of 1911, and in First Appeal No. 139 of 1934 which is directed against the decree passed in Title Suit No. 82 of 1911. The common points urged by the appellant's advocate Mr. Bagchi are the following : (1) that mesne profits ought not to have been assessed on the basis of the value of paddy, but on the basis of forest produce; (2) that no mesne profits ought to have been assessed for any period anterior to the suit, (3) the mesne profits ought to have been assessed up to three years of the date of the High Court's decrees and not up to the date of delivery of possession; (4) that if the price of paddy be taken as the basis for the calculation of mesne profits, the quantity of paddy that the lands were capable of producing ought to be taken as estimated by the Commissioner; (5) the area on which mesne profits are to be assessed must be taken to be much less than the Commissioner's estimate; (6) that 10 per cent. ought to be deducted for collection charges and 5 per cent. more on account of costs of manuring the land and for gin for cutting paddy; (7) that no interest ought to be added to the profits and that at any rate the Court below should not have added interest at the rate of 12 per cent. up to the date of the High Court decree and (8) that the method of calculating interest adopted in the case is wrong.

(3.) The first point urged before us is an entirely new point. It is moreover inconsistent with the position taken up by the defendant in the lower Court. In the lower Court he all along assumed the position that the assessment of mesne profits ought to be on the basis of the quantity of paddy produced on the land and its value. On these points he examined a large number of witnesses. Mr. Bagchi now says that all the lands in suit were covered with forest and that they have been reclaimed and brought under cultivation through the agency of his client or his adhiars. He refers to the definition of mesne profits in the Civil P. C. and draws our attention to the qualification that mesne profits "shall not include profits due to improvements made by the person in wrongful possession." He says that crops of paddy have been produced solely by reason of the improvements made by his client. The evidence in this case adduced by the defendant himself discloses that the cost of reclamation and of making the lands fit for cultivation was as low as Rs. 4 per bigha (D. W. 9, p. 465). This shows that the lands in suit were not covered by dense forests, but were more in the nature of waste lands, i.e. culturable patit. Possibly all that had to be done was to clear the weeds and to level the lands to some extent. It cannot be said therefore that the outturn of paddy crops was due to the improvements of the defendants or his agents. We cannot even say on the evidence that the yield was more because of the alleged improvements made by the defendant. There is no evidence that the defendant raised any embankment or other protective works or made any special arrangement for irrigation, except the slight evidence that in village Hypopather, an attempt was made to erect a bund for preserving water, but the work has been left incomplete. He simply cultivated with paddy through adhiars what in its natural state was culturable, and only ordinary and customary methods of cultivation were adopted by his adhiars. Apart from the fact that the contention raised a point which depending as it does upon investigation into facts, cannot be allowed to be raised for the first time in appeal, we do not, on such scanty materials as we have on the record, see any merit in the contention. We accordingly overrule it.