RAGHUBANS NARAIN SINGH Vs. KHUB LAL SINGH

JUDGEMENT

(1.) This case has, in one form or another, been litigated for many years, and it has necessitated calculations of acreage and undivided interests of much complexity and nicety. But the question now at issue between the parties is simple.

(2.) The appellants (it will be convenient to refer under that description to them and their predecessors-in- interest for the time being) are cosharer maliks of certain towzis in Mauza Madanpur Sri Ram, in the district of Monghyr. Their share was in lease to the predecessor of the first party respondent (it will be convenient to refer under the title respondent to the first party respondent and his predecessors-in-interest for the time being), himself a cosharer and also lessee of some other cosharers, and in possession of 221 bighas or thereby of khudkasht lands on which indigo was grown. After the expiration of the lease from them to the respondent the appellants on 23 July 1909, filed a suit in the First Court of the Subordinate Judge at Monghyr, for recovery of possession of their milkiat share, for joint possession over the khudkasht lands to the extent of their share therein and for mesne profits. The suit, No. 849 of 1909, was decreed. In particular the appellants were awarded joint possession with the respondent in respect of their so-called proportionate share of the 221 bighas and were further awarded Rs. 1,387 on account of mesne, profits for 1909. It was directed that further mesne profits against the respondent from the date of the institution of the suit up to date of possession sought to be recovered might on the same being ascertained in the execution department be passed by the Court in favour of the appellants. There was an appeal by the respondent to the High Court of Calcutta, one of the main objections taken by him to the decree being the direction thereby given with reference to mesne profits. The respondent contended that as a cosharer himself and as lessee of other cosharers using the land in a reasonable manner and not disputing the title of the appellants, he was entitled to retain his sole possession of the khudkasht lands, and should only be required to make reasonable compensation. This he suggested should be Rs. 4 per annum per bigha on the share of the appellants in the 221 bighas, and in support of that contention he relied on and claimed the benefit of what the High Court of Calcutta calls "the well-known case" of Robert Watson and Company V/s. Ram Chand Dutt, [1890] 18 Cal 10.

(3.) The main objection taken by the appellants to the suggestion that they should receive compensation in lieu of joint possession and mesne profits apparently was that the rate of compensation offered by the respondent was absurdly low, and what the High Court did, by its decree of 1 August 1913, was to set aside the decree of the first Court and remand the suit for a new trial, setting forth amongst the points which required decision, the question whether to the extent of the share of the appellants they were entitled to khas possession jointly with the respondent of the 221 bighas, and the question to what compensation they were entitled if they were not to have such joint possession.