G.N.DAS, J. - (1.) THIS rule was obtained by defendant 3 against an order of the learned Subordinate Judge dated 15th March 1949 in which he gave certain directions in the matter of the ascertainment of mesne profits, to a Commissioner appointed for this purpose. In 1944 a suit for declaration of the plaintiff's title and for recovery of possession was instituted against several defendants. Defendants 1, 2 and 6 were the trustees to the estate of one Sm. Sekheswari. Defendants 3, 4 and 6 were in possession of distinct plots under the trustees. On 20th March 1948 the suit was decreed, the plaintiff's title was declared and a decree for recovery of possession and for mesne profits was passed in favour of the plaintiff. Against the decree defendant 3 preferred an appeal to this Court and obtained Civil Rule No. 872 (F) of 1948 for a stay of the decree for delivery of possession and for ascertainment of mesne profits. This rule was heard on 23rd August 1948. An order was made by this Court directing stay of delivery of possession on certain conditions. The order directed that the Subordinate Judge should make a rough estimate of the mesne profits in respect of the property which was in the possession of defendant 3 from the date of suit, that is, 18th September 1944 till August 1950. If the security was furnished in respect of this sum the decree for delivery of possession would be stayed. There was a further order made in the rule to the effect that thereafter the Subordinate Judge would proceed to an ascertainment of the mesne profits for the entire period from 13th September 1944 till August 1950 and after such ascertainment the order requiring security to be furnished would be liable to be varied. After the matter went down to the Court below the plaintiff filed a petition stating that the mesne profits should be calculated on the basis that the profits of a cotta of laud was Rs. 10 per month. On this footing the plaintiff stated that the probable mesne profits would come up to Rs. 4,08,000. To this petition defendant 3 filed a petition of objection wherein he mentioned the profits received by him, and that the profits so received by him were largely due to the improvements made by him and which cost him a sum of about Rs. 2,00,000. After making deductions for interest on such cost the defendant stated that the nett profits would be about Rs. 500 per annum. In the alternative the defendant stated that the probable rent of the disputed land would be Rs. 6 per cottah per annum. By an order dated 15th February 1949 the learned Subordinate Judge made a rough estimate. He took the view that the land in the possession of defendant 3 would be about 6 bighas, the probable letting value would be Rs. 12 per cottah per annum and on that footing he calculated the probable mesne profits for the entire period, roughly six years, at the total sum of Rs. 8640. Thereafter the Court proceeded with the work of ascertaining the mesne profits of the land. A commissioner was appointed to ascertain the same. The commissioner in the course of his enquiry prayed for directions as regards the question as to the per -son on whom the onus lay to prove the amount of mesne profits. The learned Subordinate Judge dealt with this matter by order No. 109 dated 16th March 1949. In the course of his order the learned Subordinate Judge stated that the defendant judgment -debtor who was in possession was to lead evidence first to enable the commissioner to arrive at a conclusion as regards the amount of mesne profits. In case defendant 3, the judgment -debtor, did not lead such evidence the commissioner was to take further directions from the Court. On behalf of defendant 3, the judgment -debtor, a prayer was made that in case he was called upon to lead evidence first he might be allowed the opportunity of adducing rebutting evidence. The learned Judge did not pass any final orders on this petition but held it over for further direction in case the question arose at a later stage. It is the propriety of this order which is called in question in this Rule on behalf of the petitioner.
(2.) MR . Sen appearing on behalf of the petitioner has contended that the learned Subordinate Judge adopted a wrong procedure by calling upon defendant 3 to lead evidence first. His contention is that in a case like the present the burden of proof is initially on the plaintiff and it is the plaintiff who is to lead evidence first. He has referred us to some cases bearing on this question. Mr. Apurba Charan Mukherji appearing for the decree, holders has raised two contentions. In the first place he contends that the learned Subordinate Judge was right in holding that the burden of proof lay on the defendant judgment -debtor who was in wrongful possession. He has referred us to a decision of this Court in the case of Brojendra Coomar Roy v. Madhub Chunder Ghose, 8 Cal. 343. He has also contended that even assuming that the learned Subordinate Judge was wrong in holding that the burden of proof lay on the defendant, that is at best an error of law and this Court is powerless to interfere with the order passed by the Court below in revision.
(3.) WE shall first deal with the first question, viz., whether in a case like the present it was for the plaintiff to adduce evidence first on the ground that the burden of proof lies on him. The word mesne profits is defined in Section 2, Clause (12), Civil P. C., which runs thus: ' 'Mesne profits' of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession.' A plain reading of the clause shows that the plaintiff is entitled to receive from the person in wrongful possession either the profits received by such a person or the profits which such a person might have derived by the exercise of ordinary diligence. The burden of proof would depend on the nature of the claim made by the plaintiff. If the plaintiff limits his claim to the actual profits which the defendant is said to have received, obviously, in such a case, as the defendant is the person who had special knowledge of the actual receipt of profits received by him, the burden would lie on him to prove the actual receipts made by him. If, on the other hand, the plaintiff wants to make the defendant liable for the profits which the defendant ought to have received by the use of ordinary diligence in the event it cannot be said that that is a matter within the special knowledge of the defendant and the burden of proof would rest on the plaintiff to prove the probable receipts in respect of the disputed property. Under Section 101, Evidence Act the burden lies on the person who would fail if no evidence is given on either side. This is subject to a qualification to be found in Section 106, Evidence Act. The observation of Field J. in the case of Brojendra Coomar Roy v. Madhub Chander Ghose, (8 Cal. 343) quoted above is to the effect that as the defendants were in possession as wrong -doers it lay upon them to show what profits were realised by them. This observation has got to be read in the light of the facts of that case. In that case a claim was made in regard to mesne profits in respect of a certain taluk of which the defendant was in wrongful possession. The defendant produced certain account papers and wanted to prove to the Court the actual receipts which came into his hands. The account papers were found to be unreliable. It is under these circumstances that Field J. made the above observation. It cannot be said that this observation was intended to lay down a general rule applicable to all cases where the plaintiff claims mesne profits from the defendant. Brojendra Coomar Roy's case, (8 Cal. 343) was considered in the case of Ramakka v. Negasam : AIR1925Mad145 . That was a case which arose out of proceedings by way of restitution, the defendant claiming mesne profits from the plaintiff in respect of the property which was taken possession of by the plaintiff in course of execution. In that case a question arose as to who would begin first. Their Lordships of the Madras High Court after referring to the provisions of Order 18, Rule 1, Civil P. C., proceeded to state that in the enquiry held by the commissioner the defendant was to lead his evidence in the first instance and thereafter the plaintiff would lead his evidence. It may be pointed out that in that case the defendant was the person who was claiming mesne profits as against the plaintiff who was in wrongful possession. The case therefore is an authority for the proposition that the person claiming mesne profits has to lead evidence first. In the course of their judgment their Lordships draw a distinction between two classes of cases which may arise in the matter of determination of the amount of mesne profits. Their Lordships point out that in case the plaintiff claims the actual receipts made by the defendant as mesne profits, by virtue of the provisions of Section 106, Evidence Act, the burden would lie on the defendant, that is the person in wrongful possession to lead evidence first but where the plaintiff makes a claim in respect of profits that might have been realised by the defendant by the exercise of reasonable care the burden of proof would lie on the plaintiff to show the probable profits which the defendant might have received. We entirely agree with the view taken by the Madras High Court. This view found favour with the Patna High Court in the case of Ram Kishun Lal v. Abu Abdullah, 21 Pat. 735: (A. I. R. (30) 1943 Pat. 69). Mr. Sen also drew our attention to the case of Province of Bengal v. Sm. Purna Sashi Chaudhurani : AIR1943Cal125 . In that case Nasim Ali J. with whom the learned Chief Justice agreed observed that where the plaintiff claims probable profits of the land the burden lies on the plaintiff to prove what those probable profits are. ;