Judgement

Consolidated Appeals (No. 10 of 1935) from two decrees of the High Court (August 13, 1931) varying a decree of the Additional Subordinate Judge of Monghyr (November 16, 1927).

The main question in this appeal related to the assessment of mesne profits as against the appellant for the period from March 31, 1908, to January 13, 1915, in respect of certain property, situated in Mahal Bisthazari, which had been purchased by auction by the appellants father. The respondents obtained delivery of possession of the property in question on May 7, 1918, by virtue of an Order in Council, dated February 4, 1915, made in Original Suit No. 596 of 1902 for recovery of possession instituted by the respondents against the appellants father, Baijnath Goenka Maharajah Sir Raveneshwar Prasad Singh and Others v. Baijnath Ram Goenka and Others (( 1915) L. R. 42 I. A. 79.), where the facts which led to the present litigation appear in the judgment of the Board. (Ibid. 84.)

Among the property purchased by the appellants father was a six annas, nine gandas, fourteen cowries share in each of the three villages Singthu, Padmawat and Dhandh ; villages which had been awarded to the respondents on partition of the Mahal, begun in 1876, but not concluded until March 31, 1908. The appellants father, although entitled to the six annas odd share in each of the three villages, took possession of the whole of village Singthu, and did not get possession of any portion of the other two villages of which the respondents remained in possession. On January 13, 1915, an order was made in the Land Registration Department that the appellants father should be entered in the Collectors register D. as owner in respect of the six annas odd share in Singthu as well as in the other two villages, and that the respondents should be registered as owners in respect of the remaining share in each of the three villages.

Pursuant to the decision in Maharajah Sir Raveneshwar Prasad Singh and Others v. Baijnath Ram Goenka and Others (( 1915) L. R. 42 I. A. 79.), the respondents applied for execution and obtained possession of the property on May 7, 1918, and the question in this appeal was whether the respondents were entitled to recover from the appellant mesne profits for the whole of the village of Singthu or for only a six annas odd share of it during the period from March 31, 1908, when the partition of the Mahal was completed, to January 13, 1915, when the entries were made in register

D. recording the appellant as proprietor of the six annas odd share.

On April 25, 1921, the respondents made an application in the Court of the Subordinate Judge of Monghyr for ascertainment of the mesne profits up to the date of delivery of possession to the respondents. Two Commissioners were appointed to take the accounts. They held that the appellant was liable for the mesne profits of the whole 16 annas share of Singthu, and they allowed interest at 12 per cent, per annum up to the date of delivery of possession, and at six per cent, thereafter up to realization.

The appellant and the respondents filed objections to the Commissioners Report.

The Subordinate Judge reduced the Rs.69,925 awarded by the Commissioners to Rs.57,452, including

Law. Rep. 64 Ind. App. 240 ( 1936- 1937) Babu Kedarnath Goenka v. Maharaj Kumar Babu

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interest.

On appeal the High Court (Kulwant Sahay and Scroope JJ.) held that the appellant was liable for mesne profits during the relevant period on the whole of village Singthu, and that the interest should be at the rate of twelve per cent, up to delivery of possession and at six per cent, thereafter.

1937. January 28, 29. Dunne K.C. and Khambatta for the appellant. The respondents were given possession only of their six annas odd share of village Singthu, and therefore they were only entitled to the mesne profits on the basis of that share. They had constructive possession of the remaining nine annas odd share, and could have brought an action of trespass agai