A.M.BHATTACHARJEE, J. - (1.) The facts in the suit for partition, recovery of possession and mesne profits, which has given rise to these two appeals, are long and complicated. But the question involved in these two appeals arising from the decree of mesne profits passed in the suit is a short one and does not necessitate the narration of those facts.
(2.) As is obvious from the definition of "mesne profits" in S.2(12) of the Civil P.C. and also the provisions relating thereto in O.20, R.12 of the Code, a decree for mesne profits can be passed for the profits which the person in wrongful possession actually received or might with ordinary diligence have received together with interest thereon. The liability to pay mesne profits would, therefore, be obviously confined to the period during which the person to be charged therefore was in wrongful possession. The moment the possession ceases, whether by delivery of possession or by relinquishment, the liability to pay mesne profits also ceases, as indicated in Cl.(c) of R.12 of O.20. But if in any given case, the possession of the judgment-debtor, which was wrongful at certain stage, ceases to be wrongful, would his liability to pay mesne profits still continue thereafter until delivery of possession to the decree-holder or relinquishment of possession by him with notice to the decree-holder, as indicated in O.20, R.12(c)? In other words, if the possession of the judgment-debtor, which was wrongful, changes its colour and quality and ceases to be wrongful, would he still be liable to pay mesne profits for the period thereafter. That is the short question that has fallen for our consideration in these appeals.
(3.) When the suit, giving rise to these appeals, was decreed in preliminary form, the learned Judge, while granting the preliminary decree, directed inter alia as hereunder :- "The plaintiff would also be entitled to possession of his half share on partition on eviction of the defendant therefrom. An enquiry be made for determination of the mesne profits in respect of the plaintiffs half share from the date of the expiry of the lease till recovery of possession.";