HARRIES,C.J. - (1.) THIS is an application for leave to appeal to the Supreme Court from a decree of an appellate Bench of this Court dated 22 -11 -1949. It would appear that the amount involved far exceed Rs. 20,090. But in my view we cannot grant leave to appeal in this case because the order is not a final order and it is not a case in which we could grant a certificate that the case was a fit one for appeal.
(2.) THE litigation has had a long history. A suit was originally brought by the proposed respondents Midnapore Zemindary Co. Ltd., as far back as the year 1930 claiming possession of five thousand bighas of land which was said to have emerged from the river Padma sometime before the year 1927. The claim was dismissed by the trial Court, but on appeal a Bench of this Court came to the conclusion that these lands were accretions to lands of the proposed respondents and therefore that the proposed respondents were entitled to recover possession of the lands in suit and made a decree for possession. The Bench then went on to consider the question whether the Midnapore Zemindary Co. Ltd., were entitled to mesne profits. They came to the conclusion that there was a prayer for mesne profits; but instead of deciding the question themselves they directed the Court below to start an enquiry into the mesne profits. They further directed that it would be open to the Court below to decide whether there was any liability for mesne profits and of course it was only if they held that there was a liability that the question of amount would arise. The case, therefore, was remanded to the Court of the learned Subordinate Judge who first considered whether there was a liability to pay mesne profits. He held that as the plaintiff had obtained a decree for possession the plaintiff was entitled to mesne profits up to the date of delivery of possession. The learned Judge, however, was of opinion that no rent had been paid and that there had not even been an offer to pay rent. The Court held following certain decisions, that the appellants could claim a set off against their liability to pay mesne profits and in the result the learned Judge was of opinion that no sum was payable for mesne profits. In short he held that though the plaintiff being entitled to possession would normally be entitled to mesne profits, nevertheless as the other party, the proposed appellants, had a right of set off, no amount was due. From that decision of the learned Subordinate Judge an appeal was preferred to this Court and this Court decided that the view taken by the learned Subordinate Judge was not right and remanded the case to the learned Subordinate Judge to ascertain the amount of mesne profits to which the proposed respondents were entitled. It is from that order that the proposed appellants ask for leave to appeal to the Supreme Court.
(3.) THE order of this Court was made long before the Constitution came into force, but the application for leave to appeal was not made until after the Constitution came into force. However, I do not think that it is necessary to decide whether this application is governed by Sections 109 and 110, Civil P. C., or by Article 133 of the Constitution because the result in my view would be the same whichever provision applies.;