Decided on March 17,1978

Arjuna Jena Appellant
Chaitanya Thakur And Ors. Respondents


B.K. Ray, J. - (1.) THE Plaintiffs instituted the suit out of which this appeal arises against the Defendant for accounts and mesne profits in respect of the suit lands for the years from 1966 -68 on the plea that as the Defendant was in unlawful possession of the suit lands belonging to the Plaintiff -deity and appropriated the income thereof for the said period he was liable to pay mesne profits to be determined after rendition of accounts by him (Defendant). The case of the Plaintiffs as made out in the plaint may briefly be stated thus: One Sarat Chandra Das was appointed as interim trustee of the Plaintiff -deity by order of the Commissioner of Endowments No. l063/180 -G., dated 6 -12 -1967 on the retirement of the hereditary trustee Shri Ramhari Das and was in management of the deity 's properties including the suit lands. The former trustee had let out the suit lands to the Defendant on a permanent lease without prior sanction of the Endowment Commissioner and so, the said lease was invalid and inoperative. The Assistant Commissioner of Endowments by his order dated 17 -8 -1968 also held that the lease was invalid and his order was confirmed in Revision Case No. 45 of 1908 on 19 -11 -1968. Possession of the suit lands was delivered to the Plaintiffs on 15 -12 -1968. Thereafter, the Defendant did not pay the usufruct of the suit lands for the years from 1966 -68 during which period he was in unlawful possession in spite of demand. So, the Plaintiffs were obliged to institute the suit for the reliefs as aforesaid.
(2.) THE Defendant contested the suit in the trial Court by filing a written statement. His case was that the Endowment Commissioner having accorded post facto sanction to the lease in favour of the Defendant in respect of the suit lands granted by the previous trustee of the Plaintiff -deity for the benefit of the deity in favour of the Defendant, the lease was valid and binding on the Plaintiffs, and so, the Defendant 's possession of the suit lands for the years from 1966 -68 could not be said to be that of a trespasser; that the suit was barred by res judicata ; that the Plaintiffs were estopped from challenging the validity of the lease; that the suit lands being in am lands and the same having been leased out to the Defendant the latter acquired a right of occupancy in the same under the Madras Estates Land Act; that the Plaintiff -deity was an intermediary in respect of the suit lands and the said estate of die Plaintiff -deity having vested in the State of Orissa under the Orissa Estates Abolition Act, it (Plaintiff) could not maintain the suit for mesne profits and that the Defendant having paid rent for the suit lands to the Plaintiff for the period for which mesne profits is claimed, he (Defendant) could not again be asked to pay mesne profits. The trial Court decreed the suit of the Plaintiffs, but instead of passing a decree for mesne profits, it passed a decree for rent as according to it there was relationship of landlord and tenant between the parties for the suit period, and so, the Plaintiff -deity was only entitled to rent from the Defendant and not mesne profits.
(3.) ON appeal by the Plaintiffs against the decision of the trial Court, the Court below reversed the decision of the trial Court and decreed the Plaintiffs ' suit by granting the relief of mesne profits. Hence the present appeal by the Defendant.;

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