Judgement

Appeal (No. 109 of 1919) from an order of the High Court at Patna (November 16, 1916) reversing an order of the Additional Subordinate Judge of Hazaribagh.

By a decree of the High Court at Calcutta made on May 15, 1913, the present respondents were decreed possession of six villages. During the pendency of the suit the defendant had leased two of the villages to the present appellant for the purpose of mining for mica. In execution of the decree there was an inquiry as to mesne profits, and by the order now appealed from the appellant had been joined as a party to the suit. The facts of the case and the terms of the orders made appear fully from the judgment of the Judicial Committee.

1922. Feb. 27. De Gruyther K.C. and Ramsay for the appellant. The appellant cannot be made a party to the suit under Order xxii., r. 10. The decree being executed directs an inquiry as to mesne profits only, and the appellant is not a necessary party to that inquiry as the mesne profits cannot be recovered from him. Even if he were liable in damages, they could be recovered from him only by a separate suit in which the cause of action would have been different from that in the present suit. Sect. 47 of the Code applies only to questions between the parties to a suit or their

Law Rep. 49 Ind. App. 220 ( 1921- 1922) Maharaja Sir Manindra C handra V. Ram Lal Bhagat

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representatives. [Reference was also made to Prosunno Coomar Sanyal v. Kasi Das Sanyal (( 1892)

L. R. 19 I. A. 166.); Ganapathy Mudaliar v. Krishnamachariar (( 1917) L. R. 45 I. A. 54.) ; Midnapore Zamindari Co. v. Naresh Narain Roy (( 1911) I. L. R. 39 Cal. 220.); Code of Civil Procedure (Act. V. of 1908), s. 2, sub-s. 12 ; and Code of Civil Procedure (Act XIV. of 1882), ss. 244, 372.] The respondents did not appear.

April 3. The judgment of their Lordships was delivered by

LORD PHILLIMORE. The present respondents brought as plaintiffs on April 15, 1907, a suit against Raja Makund Sahi to recover possession of six villages and jungle which they claimed. The Raja defended the action, which in due course came on for trial, and on September 21, 1908, the Court of first instance decided against the plaintiffs, and dismissed the suit. Just one year afterwards, on September 21, 1909, the Raja gave a lease of a term of years of the right of mining for mica, and otherwise exploiting the jungle, to the present appellant, whose case is that he had not notice of the pending litigation.

The unsuccessful plaintiffs appealed to the High Court, which on May 15, 1913, reversed the decision of the first Court and made a decree in favour of the plaintiffs ordering the Raja to put them into possession of the six villages and jungle, and it was further ordered " That the case be sent back to the lower Court " (inter alia) " to take an account of the mesne profits to which the plaintiffs-appellants are entitled for the three years prior to the institution of the suit, and also for the period thereafter till the delivery of possession or the expiration of three years from this date, whichever event happens earlier."

When the case was accordingly remitted to the Court of first instance, a commissioner or amin was appointed to make the necessary inquiry, and on August 22, 1914, he made his report.

On January 2, 1915, the Subordinate Judge recorded that the parties did not object to the report of the amin and that it might therefore be accepted, and he ordered " that the suit be decreed finally ; that the amins report be considered to be a part of the decree ; and that the plaintiffs do recover possession with mesne profits, as determined by the amin, and the costs of this suit from the defendant with interest at 6 per cent, per annum/ In this way the suit came to its natural termination.

It happened, however, that the amin took a somewhat unusual course in conducting the inquiry which led to his report. When inquiring into the mesne profits he first of all ascertained the rents which the Raja had r