HAREK CHAND BHADANI Vs. SAHANATULLA SARKAR

JUDGEMENT

(1.) THE plaintiffs brought this suit for declaration of title and khas possession. THEre is no dispute about the plaintiffs title. It was virtually admitted by the defendants and has been decreed by both the Courts below. THE dispute is with regard to mesne profits. THE plaintiffs claimed mesne profits for the years 1925 and 1926. THEir case was that they purchased the lands at a revenue sale in 1918 and that they obtained sale certificate in 1925. THE plaintiffs then went to cultivate these lands with their ploughmen but, were prevented by defendants 1 and 2 and were thus dispossessed by these defendants. THE defence was that the defendants never dispossessed the plaintiffs and that therefore the latter were not entitled to any decree for mesne profits. THE learned Munsif allowed Rs. 576 as mesne profits to the plaintiffs, On appeal the learned Subordinate Judge being of opinion that the defendants never dispossessed the plaintiffs dismissed their claim for mesne profits. THE learned Subordinate Judge seems to be of opinion that a decree for mesne profits can only be passed if the plaintiffs succeed in proving that they were dispossessed by the defendants or they were resisted by the defendants in the possession of the property. This view is clearly wrong. Under Section 27, Bengal Land Revenue Sales Act, a sale becomes final after sixty days from the date of the sale. It means that when a sale becomes final, the right of the purchaser accrues in the property and the right of the defaulter is extinguished from that date. THE learned Subordinate Judge seems to be of opinion that no title accrues until the sale certificate has been issued. In this case the sale took place in 1918, but the sale certificate was obtained by the plaintiffs in 1925. It is said that it must be 3 or 4 months after the sale certificate had been obtained by the plaintiffs that they went to take possession of the lands and might have been resisted by the defendants But a sale certificate does not create title; it is only evidence of title; it is at the most a title-deed: see Khobari V/s. Ram Prosad Roy [1908] 7 C.L.J. 387. Under Section 28 of the Revenue Sales Law, immediately upon a sale becoming final, the Collector shall give to the purchaser a sale certificate in the form given in Schedule A of that Act. That form says that the Collector should certify in the sale proclamation that the purchase by the auction- purchaser takes effect on such and such date, that is, on the date of the sale. THE title of the purchaser therefore if it does not accrue really on the date of the sale, certainly accrues sixty days thereafter, Mesne profits have been defined in Section 2 (12), Civil P.C., as profits which the person in wrongful possession of the property actually received, and so forth. Mesne profits accordingly are the profits received by the persons in wrongful possession; and if after the sale certificate the/defendants remained in possession, their possession must be taken to be wrongful possession. It is not correct to say that possession of the defendants becomes wrongful after the plaintiffs have failed to take it and have been resisted by the defendants, or after the defendants have dispossessed the plaintiffs from their rightful possession. THE [view taken by the learned Subordinate Judge must therefore be overruled. THE plaintiffs have claimed mesne profits for 1925 and 1926, that is from a part of 1331 to a part of 1332 B. S. THEre is no finding in the judgment of the learned Subordinate Judge as to whether the defendants were in possession of the lands during this period or, as the plaintiff's witnesses have said and the learned Subordinate Judge has stated in his judgment, they were in possession up till the beginning of 1332 B. S. That the learned Subordinate Judge should definitely find as to the period during which the defendants remained in possession of the lands during the period in suit. In the view which the lower appellate Court took it did not consider the amount to which the plaintiff would be entitled by way of mesne profits. It is therefore necessary that the case should go back to the Court below for the purpose of determining the time during which the defendants were in wrongful possession and for which mesne profits are claimed and also for determining the amount of mesne profits.

(2.) THE result therefore is that the appeal is allowed, the decree of the lower appellate Court set aside and the case remitted to that Court for a rehearing of the appeal in the light of the observations made above. THE costs of this appeal will abide the final result.