HARRY KEMPSON GRAY Vs. BHAGU MIAN

JUDGEMENT

(1.) The only question raised for determination in this appeal is as to the basis upon which mesne profits should be ascertained in respect of the wrongful possession of agricultural land.

(2.) The appellants, who were the owners of an indigo factory, had for a number of years leased certain lands from the predecessors-in-title of the principal respondents, and had utilized the lands in growing indigo for the purposes of their factory. The lease having expired in or about November 1919, the respondents became entitled to possession of the major portion of the lands. The appellants subsequently obtained a new lease of a small portion, which did not belong to the respondents, and refused to give up possession of the respondents' portion, alleging themselves to be occupancy tenants. The respondents sued to establish their title and were successful, a decree being passed in their favour for joint possession with the appellants and for mesne profits of an area of some 23 bighas. After proceedings in appeal to the High Court the matter came again before the Subordinate Judge for the ascertainment of the mesne profits awarded by the High Court's decree. A local enquiry was held by a commissioner, and the Subordinate Judge eventually found a sum of Rs. 19,869.11-11 to be due to the respondents, for which he passed a final decree in the respondents' favour on 15 August 1922. The appellants again appealed to the High Court alleging this amount to be excessive, but their appeal was dismissed, and they have now by special leave appealed to His Majesty in Council.

(3.) The calculation by the Courts in India was made upon the basis of the crops which the land was capable of producing. It was, in fact, planted with indigo, but the Courts found and it is not disputed before this Board, that it was capable of producing more profitable crops, such as sugarcane, wheat, tobacco, etc., crops which were in fact grown by the appellants on other neighbouring lands.