BABU KEDARNATH GOENKA Vs. MAHARAJ KUMAR BABU BAGESHWARI PRASAD SINGH

JUDGEMENT

(1.) These consolidated appeals arise out of proceedings in the execution of a decree obtained against the appellant by the respondents for the possession of land and for the mesne profits thereof. The questions raised by the appeals relate to the assessment of the mesne profits, and to the rate of interest which should be allowed on the profits.

(2.) The circumstances which led to the decree sought to be executed, may be shortly stated. In the Monghyr district of the Province of Bihar there was an estate called Mahal Bisthazari. The mahal comprised about 360 villages, but was entered in the Collector's register as a separate revenue paying estate. There were numerous proprietors in the mahal owning specific shares, some in one village only, others in several villages. Ordinarily all the proprietors in a revenue paying estate are jointly liable for the payment of the land revenue assessed on that estate, and in the event of a default in payment, the whole of the estate may be sold for the realization of such amount as may be due to Government. But the Bengal Land Revenue Sales Act (Bengal Act 11 of 1859), which prescribes rules for the realization of land revenue, provides that "a recorded sharer of a joint estate held in common tenancy" (S. 10), or "a recorded sharer of a joint estate whose share consists of a specific portion of the land of the estate" (S.11) may, if he desires to pay his share of the revenue separately, ask the Collector to open a separate account with him for the payment of his share of the revenue separately from the other proprietors. The advantage of opening a separate account is that, when a default in the payment of land revenue takes place, the Collector in the first place shall put up to sale only that share or those shares of the estate from which according to the separate accounts, an arrear of revenue may be due (S. 13); and the rest of the estate shall not be liable to sale unless the highest offer for the share exposed to sale shall not equal the amount of arrear due thereupon to the date of sale (S. 14).

(3.) A large number of the proprietors, who owned specific but undivided shares in Mahal Bisthazari, availed themselves of these provisions of the statute, with the result that the Collector opened separate accounts with them in respect of their liabilities for the payment of their shares of the land revenue. A large area of the estate however remained ijmali or joint share, and the owners of this ijmali share were still jointly liable for the payment of the land revenue in respect of it. In 1901 there was an arrear of land revenue payable in respect of the ijmali share, and the Collector in exercise of the power conferred upon him by the statute, sold the share, on 9 September 1901 by auction. The appellant's father Buijnath Goenka was certified to be the purchaser of that share, and obtained possession thereof on 15 May 1902. Thereupon, the respondents with some of their co-sharers in the ijmali share, after an unsuccessful appeal to the Commissioner of the division, brought an action in the Court of the Subordinate Judge of Monghyr for the annulment of the sale, and for the possession of the property. The trial Judge allowed their claim and granted them a decree of possession of the land with mesne profits. This decree though reversed on appeal by the High Court, was restored by His Majesty in Council in 1915, with certain modifications which are not material to the present appeals. It is the decree of the Subordinate Judge which as modified by the Privy Council, the respondents are seeking to execute. But before dealing with the execution of that decree, their Lordships consider it necessary to refer to the proceedings for the partition of the mahal which were commenced in 1876 but were not concluded until 31 March 1908. It is common ground that before the partition the respondents had shares in certain ijmali villages, and were also co- sharers in other villages in respect of which they had separate accounts. In lieu of their entire holding in the mahal they were awarded on partition three villages, namely Singthu, Padmawat and Dhandh, and these villages were given a separate tauzi number. The interest of the respondents in the ijmali villages, which were sold in September 1901, and purchased by Goenka, was represented by 6 annas 9 gandas and 14 cowries in each of these three villages; and the remaining share in the villages represented their interest in the mahal in respect of which they had separate accounts.