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1929 Supreme(SC) 13
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT DUNEDIN, LORD CARSON, AND SIR CHARLES SARGANT.
GURUDAS KUNDU CHOWDHURY (JUDGMENT DEBTORS) - Appellant
Versus
HEMENDRA KUMAR ROY - Respondents
On Appeal from the High Court at Calcutta.
Decided On : Feb. 14. 1929.
Solicitors for appellants : T. L. Wilson & Co.
Solicitors for respondents: Watkins & Hunter ; Vallance & Vallance.
Important Points
Subject
Civil Law - Property Law
Act Referred
Headnote
(B) Code of Civil Procedure, 1882 - Section 211 - Computation of mesne profits - Mesne profits are defined as those which the person in wrongful possession actually received or might with ordinary diligence have received. Where defendants in wrongful possession let the land to a third party and received rent, and such action was reasonable, their liability is limited to the rent actually received and not the total produce value of the land obtained by the tenant in actual possession.
(C) Joint and Several Liability - A decree for mesne profits against multiple defendants is not necessarily a joint and several decree that allows the recovery from one defendant of profits actually received by another defendant. Liability is determined individually based on what each defendant actually received or could have received with ordinary diligence.
Facts of the case:
Certain lands disappeared under a river and later reappeared. One group of joint owners established a right to the land and took possession, continuing a lease previously granted by the government to a third party. Other joint owners sued for recovery of possession and mesne profits. A decree was passed for possession and mesne profits. During execution, disputes arose regarding the period for which mesne profits were recoverable and the basis for their calculation, specifically whether the defendants were liable for the total produce value of the land or only the rent they received from the lessee.
Findings of Court:
The court found that the decree for mesne profits extended to the date of delivery of possession. Regarding the amount, the defendants were liable only for the rent they actually received from the lessee, as they had acted reasonably in continuing the lease and were not liable for the higher produce value obtained by the lessee.
Issues: (1) Whether mesne profits under a decree for possession are recoverable only up to the date of the suit or up to the date of delivery of possession; (2) Whether defendants in wrongful possession who leased the land are liable for the total produce value of the land or only for the rent they actually received.
Ratio Decidendi: Under Section 211 of the Code of Civil Procedure, 1882, a decree for mesne profits covers the period from the institution of the suit until delivery of possession. The measure of such profits is what the person in wrongful possession actually received or could have received with ordinary diligence. If the defendants reasonably leased the property, they are only liable for the rent received, not the profits made by the tenant, as they are not joint tortfeasors for the purpose of calculating mesne profits.
Result: Appeal partially allowed; mesne profits allowed up to the date of readmission but calculated only on rent actually received by the defendants.
Legal Category Hierarchy
-
practice and procedure
-
civil procedure
-
execution of decrees
- mesne profits
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execution of decrees
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civil procedure
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property law
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land recovery
- possession
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land recovery
Judgement
Consolidated Appeal (No. 156 of 1927) from two decrees of the High Court (June 9, 1926) varying decrees of the Subordinate Judge of Nadia.
The appeal arose in two execution proceedings in circumstances which appear from the judgment of
12 Law Rep. 56 Ind. App. 290 ( 1928- 1929) Gurudas Kundu C howdhury V. Hemendra Kumar Roy
113
the Judicial Committee.
The questions for determination were (1.) whether under & decree for possession and mesne profits obtained by the respondents in 1906 the mesne profits were recoverable only down to the date of the suit, or down to the time when they obtained possession, that time owing to appeals being about thirteen years later ; and (2.) whether the zamindar appellants were liable jointly and severally with a patnidar in actual possession to pay mesne profits based on the produce value of the land, or were liable merely in respect of the rent they had received from the patnidar.
The Subordinate Judge held (1.) that on the terms of the decree the plaintiffs were not entitled i)O mesne profits for a period subsequent to the institution of the suit; (2.) that the zamindar defendants (the present appellants) were liable only on the basis of the rent which they had received.
The High Court by judgments reported at I. L. R. 53 C. 992 held to the contrary on both points. The learned judges (Cuming and Page JJ.) were of opinion on the second question that the present appellants were liable jointly and severally with those in actual possession and were joint tortfeasors with them ; as some of the land had been let at a produce rent the Court held that it could assume that it was all so let.
The Code of Civil Procedure, 1882, which was in force at the date of the decree, makes provision for mesne profits by ss. 211 and 212.
1929. Feb. 12, 14. Sir George Lowndes K.C. and E. B. Raikes for the appellants. Upon the construction of the decree, in conjunction with the plaint, the plaintiffs were entitled to mesne profits only down to the date of the suit. Sect. 21.2, not s. 211, of the Code of 1882 applied. The High Court relied upon Fakharuddin v. Official Trustee of Bengal . (( 1881) L. R. 8 I. A. 197.) That case, however, was under the Code of 1859, the relevant provisions of which differed from ss, 211 and 212 of the Code of 1882. Secondly, if s. 211 applies, then under the explanation the appellants were liable only in respect of the rent paid to them. That was the only profit which they received ; they acted reasonably hi continuing the patni and not cultivating the lands themselves. The appellants were co-tenants with the plaintiffs. They were therefore not trespassers in law, nor joint tortfeasors with the patnidar. In Pugh v. Ashutosh Sen (( 1928) L. R. 56 I. A. 93.) the Board held that Doe v. Harlow (( 1840) 12 Ad. & E. 40.), which was relied on in the High Cart on that point, lays down no principle at all. In any case, the measure of liability was that prescribed by the explanation to
s. 211.
Upjohn K.C. and Dube for respondents Nos. la to 3. The judgment of the trial judge in 1906 shows that he treated the claim as including future mesne profits. The decree upon its true construction entitles the plaintiff to them Dhurne Narain Singh v. Bundhoo Ram (( 1869) 12 S. W. R. 74.) ; Fakharuddin v. Official Trustee of Bengal . (( 1881) L. R. 8 I. A, 197.) The order for possession itself carries the right to mesne profits to the date when possession is given Lelanund Singh v. Luckmissur Singh . (( 1870) 13 Moo. I. A. 490.) The mesne profits recoverable from the appellants were rightly based upon the produce value of the land. That clearly was the right basis as against the patnidar. The appellants were in law joint tortfeasors with him, and their liability under the decree was joint and several with him. That view was accepted by them in the High Court, and is not affected by s. 211. Sir George Lowndes K.C. replied.
The judgment of their Lordships was delivered by
VISCOUNT DUNEDIN. This is a c
