KALIDAS RAKSHIT Vs. SARASWATI DASI W/O BABU HARINATH DAS

JUDGEMENT

(1.) Touzi No. 162 of the Khulna Collectorate comprises among other villages, Mouza Ghona Madardanga and Mouza Rangpore. Plaintiffs 1 to 23, the Mozumdars, hold the said two Mouzas as patnidars and darpatnidars under the proprietors of the said estate. In this appeal we are concerned only with Mouza Ghona Madardanga. The Syedpore Trust estate represented by the Collector of Khulna is the proprietor of Touzi No. 188 of the Khulna Collectorate. Defendant 85, Sarat Chandra Rakshit, whose legal representative is the appellant before us in Appeal No. 27, is the Gantidar of the adjoining Mouza, Mouza Bilpabla, under, the proprietors of the said Touzi No. 188 of the Khulna Collectorate, and Jadu Nath Kaviraj defendant 67 the appellant in Appeal No. 117, is the Dargantidar of a portion of the said Mouza. In 1917 the Mozumdars granted to Saraswati Dassi, the principal respondent in both the appeals, a permanent lease of the larids of Mouza Ghona Madardanga. On 16 April 1919 the Mozumdars instituted the suit to recover possession of two plots of land, the first as part of Mouza Ghona Madardanga and the second as part of Mouza Rangpur. Saraswati Dassi was made pro forma defendant 87, but later on she was transposed and became plaintiff 24. The Collector of Khulna who is the agent of the Syedpore Trust estate was made pro forma defendant 86 and the other principal defendants to the suit were the tenants in occupation either of plot No. 1 or plot No. 2 in suit. In that suit there was an allegation that the principal defendants had dispossessed the plaintiffs in Jaistha 1325 B.S. (June 1918) and a claim for mesne profits against the principal defendants was also made. The learned Additional Subordinate Judge by his judgment and decree dated 20 May 1925 holding that parts of both the plots in suit appertained to the patni and darpatni of the Mozumdars gave the plaintiffs a decree for possession and mesne profits. He assessed mesne profits at Rs. 576 from the date of the dispossession till the institution of the suit and directed the principal defendants to pay the same to the plaintiffs. He declared that the plaintiffs were also entitled to get mesne profits from the date of the institution of the suit till recovery of possession but he did not give an express direction in terms of Order 20, Rule 12, Sub-rule (1), Clause (c), Civil P.C. This decree of the learned Additional Subordinate Judge was affirmed in appeal by this Court by a judgment dated 3rd December 1928. Thereafter, the plaintiffs took possession of the two decretal lands between 30 March and 8 April 1931. Although, it was stated in the plaint that plot No. 1 in suit comprised an area of 731 bighas, it was found at the time of the delivery of possession that area decreed in favour of the plaintiffs in Mouza Ghona Madardanga was only 581 bighas.

(2.) On 20 July 1931, plaintiff 24 made an application to assess mesne profits of the said area of 581 bighas from the date of the institution of the suit (16 April 1919) till the delivery of possession (8 April 1981) and prayed for a joint decree against defendants 85, 67 and the tenants who held the said area immediately under defendant 67 and mediately under defendant 85. A commissioner was appointed to ascertain the amount. He assessed the mesne profits on produce basis and reported that the amount ought to be Rs. 82,780-8-0. On an objection by the defendants the learned Subordinate Judge reduced the amount to Rs. 70,114-0-0 and by decree dated 29 November 1935 directed all the principal defendants, save and except Nos. 15 to 18, 60, 61 and 86 (who were not concerned with the lands of Mouza Ghona Madardanga) to pay the same in instalments. The decree, as it stands, is a joint and several decree against the said defendants for the whole sum. Against the said decree the two appeals before us are directed, one by defendant 85, the legal representative of Sarat Rakshit, and the other by defendant 67, Jadu Nath Kabiraj. The points raised by the two appellants are as follows : (i) the present application for assessing mesne profits is not maintainable, (ii) that there can in law be no decree for mesne profits against them inasmuch as the plaintiffs have released the agent of the Syedpore Trust from liability to pay mesne profits, (iii) that mesne profits ought to be decreed against defendants 85 and 67 not on produce basis but on the basis of the rent that they had respectively received from their tenants, (iv) that no profits earned by reason of the improvements made by those defendants can be taken into account in assessing mesne profits, (v) that the reclaimed are has been taken at a larger figure than the evidence justifies, (vi) that the quantity and price of the produce has been assessed at a high figure, (vii) no account should have been taken of weeds such as Nal, Hogul and Malia and (viii) interest has been allowed at a high rate.

(3.) Saraswati Dassi has filed a memorandum of cross objections in which she challenges the correctness of the calculation of interest. We proceed to deal with the points raised in the appeals in the order formulated above : The sole basis of the argument on the maintainability of the application for mesne profits is that no express direction in terms of Order 20, Rule 12, Sub-rule (1) Clause (c), Civil P.C., has been given in the preliminary decree dated 20 May 1925 as affirmed by this Court. The contention of the learned advocates for the appellants has been advanced on broad and general terms, namely that in the absence of such express direction mesne profits cannot be assessed in the suit, but if the successful plaintiff desires to have mesne profits for that period he must institute a new suit and get a decree if his claim is not then barred by time. If this contention be upheld, in this case plaintiff 24 would get very little, for, if she had instituted a new suit for mesne profits even on the day when she filed her application for assessment of mesne profits a good portion of her claim would have been successfully met by the plea of limitation. On the facts of this case, it is not necessary to determine the question in the broad form in which it has been debated but at the same time it is necessary to clarify the position to some extent.