Judgement

Appeal (No. 3 of 1928) by special leave from a decree of the High Court (January 25, 1926) affirming a decree of the Subordinate Judge of Muzafferpur.

In circumstances which appear from the judgment of the Judicial Committee the respondents obtained against the appellants a decree for joint possession with them of about twenty-three bighas of land together with mesne profits.

The report of a commissioner appointed by the Subordinate Judge assessed the mesne profits at Rs.19,869, on the basis of what the land would have produced if tobacco, sugar cane, and similar productive crops had been grown.

The Subordinate Judge adopted the report, holding that the basis upon which the mesne profits had been assessed was correct; he made a decree accordingly.

The High Court (Das and Ross JJ.) affirmed the decree.

1929. Oct. 18, 21. Dunne K.C. and E. B. Raikes K.C. for the appellants. The appellants being joint owners of the land the respondents were only entitled as mesne profits to a proportion of the fair commercial rent obtainable for the land Watson & Co. v. Ramchund Dutt.(( 1890) L. R. 17 I. A. 110.) If, however, the mesne profits should be based upon the produce of the land, it is the produce from growing indigo. Under the definition of mesne profits in s.2, sub-s.12, of the Code of Civil Procedure "ordinary diligence" did not require the appellants to embark upon growing other crops. The High Court in considering the profit which would have been made by the plaintiffs applied the wrong principle. Under the definition the test is not the profit which the plaintiffs would have made, but the profit which the defendants made or reasonably might have made.

Dube for respondent No. 14. Under the definition in the Code the test was not the rental value, but the profit which the appellants with ordinary diligence might have made, and that is a question of fact upon which the findings are conclusive. The authorities as to mesne profits have always drawn a distinction between the cases where the defendant has let the land and where he has cultivated it himself Soudaminee Dabee v. Anund Chunder Haldar (( 1870) 13 Suth. W. R. 37.); Laljee Shahay Singh v. Walker (( 1902) 6 Cal. W. N. 732.); Pundit Lachmi Narayan v. Mazhar Hassan (( 1908) 12 Cal. W.

N. 660.); Rookumee Kooer v. Ram Tuhul Roy.(( 1872) 17 Suth. W. R. 166.) Watson & Co. v. Ramchund Dutt (1) was not a case of mesne profits against a person in wrongful possession. The profit which could have been made by the plaintiffs who grew on their neighbouring land the more profitable crops was evidence of the profit the defendants might have made.

[Reference was made also to Gurudas Kundu Choudhury v.

Hemendra Kumar Roy.(( 1929) L. R. 66 I. A. 290.)]

E. B. Raikes K.C. replied.

Dec. 6. The judgment of their Lordships was delivered by

SIR GEORGE LOWNDES The only question raised for determination in this appeal is as to the basis upon which mesne profits should be ascertained in respect of the wrongful possession of agricultural land.

The appellants, who were the owners of an indigo factory, had for a number of years leased certain lands from the predecessors in title of the principal respondents, and had utilized the lands in growing indigo for the purposes of their factory. The lease having expired in or about November, 1919, the respondents became entitled to possession of the major portion of the lands. The appellants subsequently obtained a new lease of a small portion, which did not belong to the respondents, and refused to give up possession of the respondents portion, alleging themselves to be occupancy tenants.

The respondents sued to establish their title and were successful, a decree being passed in their favour for joint possession with the appellants and for mesne profits of an area of some twenty-three bighas. After proceedings in appeal to the High Court the matter came again before the Subordinate Judge for the ascertainment of the mesne profits awarded by the High Courts