1. This second appeal by the plaintiffs arises out of a suit in which they claimed a decree for mesne profits of Rs. 5,526.50 paise (including interest) for the period 26th of December 1958 to 15th of December, 1959 in two Fasli years 1366 and 1367.

2. In order to appreciate the points raised before us by learned counsel for the parties it may be necessary to state the facts in somewhat details. There was a proceeding under Sec.145 of the Code of Criminal Procedure in respect of the suit lands measuring 4 bighas 4 kathas and 7 dhurs of plot Nos. 53, 79. 261 and 991 in village Sugapipar in the district of Champaran. That proceeding was decided against the appellants and in favour of the respondents on 29th of June, 1951. The appellants then instituted Title Suit No. 142 of 1951 in the Court of Subordinate Judge at Motihari. Main reliefs claimed therein were declaration of title, recovery of possession and mesne profits, past, pendente lite and future. The suit was decreed by the trial Court on 19th of December, 1953. Appeal against that decree was dismissed by the lower appellate Court on the 20th of August 1955. A second appeal was filed in this Court which was numbered as 1410 of 1955 and that too was dismissed on 25th of November 1958. It may be stated here that decree for future mesne profits was not passed in that suit and question of title between the appellants, i.e.. the plaintiffs, and the State of Bihar was left open. During the pendency of that litigation the appellants took delivery of possession on 18th of September. 1955. However, that delivery of possession was cancelled and set aside on 20th of December, 1955. After that another proceeding under Sec.145 of the Code of Criminal Procedure was started on 29th of March 1957. An order attaching the property in dispute was also passed. On 24th of January, 1960 the appellants again took delivery of possession. On 6th of December, 1960 the proceeding under Sec.145 of the Code of Criminal Procedure was dropped on the ground that the proceeding had not been signed by the Magistrate who had initiated it.

3. The case of the appellants was that the defendants respondents were in wrongful possession during the period in respect of which the mesne profits were claimed in the present suit and thus they were liable to the claim. The defence of the respondent was that the land was in custodia legis during the period for which the claim has been made and as a matter of fact he was not in possession thereof and, therefore, no decree for mesne profits could be passed. It was further pleaded by him that in view of the fact that in Title Suit No. 142 of 1951 relief for future mesne profits was not granted the suit was not maintainable.

4. The trial Court held that the suit was not maintainable on the ground that the relief for future mesne profits was not granted in the earlier suit. It further held that the property was in custodia legis and the respondent was not in possession. It accordingly dismissed the suit. The lower appellate Court has reversed the finding of the trial Court on the question of maintainability of the suit. In its opinion the suit which was in respect of a period subsequent to the institution of the previous suit was maintainable. It has however, held that the property in dispute was in custodia legis on account of attachment under Sec.145 of the Code of Criminal Procedure and therefore, the respondent could not be in possession thereof. Thus, the lower appellate Court has also dismissed the suit confirming the judgment and decree of the trial Court.

5. Mr. Thakur Prasad appearing on behalf of the appellants has urged that the proceeding under Sec.145 of the Code of Criminal Procedure must be treated as non-existent in law as it was not signed by a Magistrate and, therefore, there could not be and was not any attachment in law. He has further urged that as no order restraining the parties from going to the land in dispute was made when the order of attac