NAGO Vs. MULTANMAL

JUDGEMENT

(1.) THE appellant was formerly the owner of the fields in suit which were put to auction and purchased by the respondent. In due course of time the plaintiff-respondent was put into possession of the property purchased by him at the auction as against the appellant. Later on the appellant dispossessed the respondent otherwise than in accordance with law. This led to the summary suit under Section 9 of the Specific Relief Act being instituted against him by plaintiff-respondent. The latter succeeded in obtaining a decree in that suit. The present suit is for recovery of mesne profits from the appellant in respect of the period during which he kept the plaintiff out of possession.

(2.) THE defendant-appellant admitted that the fields were purchased by plaintiff, but urged that one Multanmal Chandmal was co-owner with plaintiff in equal share, that he cultivated only a half portion under a contract of batai under Multanmal Chandmal, and that plaintiff's half portion was cultivated by his lessee Narayan. The plaintiff denied that Multanmal Chandmal had any interest in the property and that the defendant's possession was only over half the fields. According to him the defendant was in wrongful possession of the entire fields in suit.

(3.) THE first and foremost attack on the decree is that the lower Courts were wrong in passing a decree for mesne profits against the defendant merely on the strength of a judgment in the summary suit under Section 9 of the Specific Relief Act, in the absence of any evidence to show that plaintiff was the sole owner of the property of which he claimed to recover mesne profits. To my mind there is no substance in this contention. The defendant was admittedly not the true owner of the property at the date of the trespass. He set up the right of Multanmal Chandmal to a moiety of the fields in suit. The plaintiff denied his assertion. It was, therefore, incumbent on him to prove the title of Multanmal Chandmal if he wanted to be relieved of the liability for mesne profits at least to the extent of half.