Sir George Rankin:-

In this case two appeals from a decision given on 27th June 1935, by the High Court at Fort William in Bengal have been consolidated. They may be described with substantial though not with literal accuracy as brought one by the plaintiff and the other by the defendant, and as arising out of proceedings taken to ascertain mesne profits in a suit to recover possession of a number of tenures in lands lying in the village of Dashmina in the district of Bakarganj in Bengal. Strictly speaking there were two suits tried together and not one suit only, parties have on their death or for other reasons been succeeded by their representatives, there were a number of pro forma defendants in addition to the main defendant Raja Profulla Nath Tagore (now deceased but herein called the defendant); and at first his father's executors were impleaded and not himself. But such details may be waived aside and the suit sufficiently described as having been brought on 4th April 1916, in the Subordinate Judge's Court at Bakarganj by one Satya Bhusan Das against Raja Profulla Nath Tagore. The plaintiff sought to recover possession of 54 tenures described in three schedules marked ka, kha and ga attached to the plaint.

The case went on appeal to His Majesty in Council and by an Order in Council dated 21st March 1929, affirming the decision of the High Court it was finally determined that the plaintiff should recover possession of a six-annas share in 22 tenures - these tenures falling into two classes comprising 11 tenures each. Under this decision the plaintiff obtained possesssion on 12th September 1929, of what had been decreed to him and on 15th February 1930, proceedings were begun to assess what was due to him from the defendant in respect of mesne profits for the period 4th April 1913 to 12th September 1929. The date - 4th April 1913-is determined by the fact that it is three years before the institution of the suit: the wrongful possession of the defendant had begun in or about; 1907. An investigation having been made by a commissioner, the learned Subordinate Judge on 11th May 1931, passed judgment on the matters in dispute, and the case went back to the commissioner who assessed the mesne profits at Rs. 68,405. On appeal to the High Court, Mukerji and S. K. Ghose JJ. on 27th Jane 1935 gave the directions which are now challenged before the Board and assessed the mesne profits at Rs. 60,152 with certain interest and costs. Their decision was embodied in two decrees-one dismissing the plaintiff's appeal to the High Court and the other allowing on certain points the appeal of the defendant.

To ascertain the mesne profits from 1913 to 1929 it is necessary to have regard to the tenure history (if it may so be called) of the village of Dashmina, but their Lordships in referring to the history will endeavour, as far as may be, to omit irrelevant detail. The village lay within the zemindary of the defendant, a permanently settled estate named Nasirpur bearing touzi No. 2694 in the Bakarganj Collectorate. It was held by a Mahomedan family (who may be referred to as the Dashmina family) in what has been justifiably described as a complex or mesh of tenures and sub-tenures. Immediately under the zamindar they held 12 annas of the village in six separate “Jimba Taluks” and they also held a “Pattai Taluk” in two sub-divisions under the other 4 annas. Under these interests they held numerous sub-tenures. One of the members of this family was Abdul Wahed who owned a 6 annas share in the various interests of which the family were possessed. He had mortgaged his 6-annas share in some of the items to the plaintiff's father who in 1901 obtained a mortgage decree and in 1905 bought his mortgagor's share in 11 tenures at a sale in execution of the decree. The plaintiff or his father likewise in 1905 and 1911 obtained money decrees against Abdul Wahed and his heirs under S. 90, T. P. Act, and in 1910 and 1912 bought the judgment-debtor's 6 annas i