The true test for assessing mesne profits is what an ordinary prudent agriculturist would have grown on the land in dispute for the years in question.

1. This appeal is presented on behalf of the plaintiffs against judgment and decree of Mr. S.S. Hussain, Additional Subordinate Judge of Arrah, dated 4-2-1947.

2. The decree in question is a final decree for mesne profits. The plaintiffs claimed mesne profits for four years, that is, 1348 Fasli to 1351 Fasli as regards the land described in Sen. C to the plaint. With respect to Sen. D land the claim of the plaintiffs for mesne profits was for three years from 1348 Fasli to 1350 Fasli. The total claim of the plaintiffs for mesne profits for both Sens. C and D lands was valued at Rs. 27,717/15/3. A pleader commissioner was appointed in this case to make, local investigation.

According to his report, the plaintiffs were entitled to Samjira paddy at the rate of ten maunds per bigha, Ujla paddy at the rate of nine maunds per bigha, Silhat paddy at the rate of six maunds per bigha and Catch crops (Khesari and Kerao) at the rate of one maund per bigha and Tisi at the rate of hall a maund per bigha. The calculation was made in terms of Pucca bigha and Pucca maund. With respect to Schedule D land, the Commissioner took the view that the produce of wheat would be at five maunds per bigha, and wheat and gram at 3 1/2 maunds per bigha. It is necessary to mention that, according to the case of the plaintiffs, Samjira paddy was grown on G.38 acres, Ujla paddy was grown on 12.02 acres and Silhat paddy on 4.20 acres. The area or Schedule D land was 11.46 acres, out of which wheat was grown on 2.40 acres and Gochana (wheat and gram) was grown on 9.06 acres.

The pleader commissioner found that crops were grown on the Schedules C and D lands except plot No. 1004 having an area of 28 acre on which there was no produce grown. The Commissioner also was of the opinion that the price of the crops should be calculated at the Gazette rates for all the crops except that for Shamjira paddy, the price of which should be 33-1/3 per cent, higher than that of the common paddy as mentioned in the Gazette. When the matter came before the learned Additional Subordinate Judge, it was contended on behalf or the defendants that for the past years, 1345 Fasli to 1347 Fasli, the plaintiffs had claimed in the plaint mesne profits at the flat rate of five rupees per bigha for Schedule C lands and at the fiat rate of Rs. 3/8/- per bigha for Schedule D lands. The rate mentioned in the plaint refers to Kucha bigha, and allowance has been given for the cost of cultivation also.

The learned Additional Subordinate Judge accepted the argument, of the defendants and held that for the subsequent years from 1348 to 1349 Fasli the plaintiffs could not be given mesne profits at a higher rate than what they had themselves claimed in the plaint for the past years. For the years 1350 and 1351 Fasli, the learned Additional Subordinate Judge granted mesne profits at the rate of rupees six per bigha of Schedule C land and for the year 1350 Fasli at the rate of rupees lour per bigha of Schedule D land. In effect, the decree for mesne profits granted to the plain-tills was for a sum of Rs. 2,488/10.00 and interest of Rs. 675/1/6, calculated from the 1st of Magh, 1348 Fasli.

3. The main argument of Mr. Verma in support of this appeal is that the report of the Commissioner should have been accepted by the learned Additional Subordinate Judge and there is no justification at all for allowing the plaintiffs mesne profits at the flat rate without taking into consideration the nature and quality of the land and the produce grown on it for the years in question. On this point learned counsel referred to the decision of the Judicial Committee in --Harry Kempson Gray V/s. Bhagu Mian, AIR 1930 PC 82 (A), in which Sir George Lowndes has laid down the test for assessment of mesne profits. The test is clearly not what a person has lost by his exclusion, but what the trespasser has or might reasonably have made by his wrongful possession. The true test in calculating mesne profits is what the