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

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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 case wh