The person in wrongful possession of property is liable for mesne profits, which are the profits that the person actually received or might have received with ordinary diligence, together with interest thereon.

1. This appeal by the defendants from a final decree of the Additional Subordinate Judge, Begusarai, of 9 March, 1968 is solely concerned with the question of ascertainment of mesne profits. The profits consist of the produce from 4 bighas 10 kathas of land. The point raised for determination in this appeal is as to the basis upon which mesne profits should be determined. The plaintiffs-respondents claimed mesne profits for 15 years from 1349 to 1363-Fs. claiming Bhadai and Rabbi crops. They claimed maize as Bhadai crops for the year 1353-Fs. and wheat, sugar-cane, Rahar, Mirchai, Andi and Alua as Rabbi crops for different years. Wheat was claimed only for three years, 1349, 1350 and 1353-Fs.; sugar-cane was claimed for five years, namely, 1351, 1352 and 1358 to 1360-Fs., Rahar for two years 1355 and 1357-Fs., Mirchai and Andi for 1361-Fs. and Alua for 2 years 1356 and 1363 Fs. The total amount claimed after deduction of the cost of cultivation was Rs. 77,054.25 Paise in respect of both the Bhadai and Rabbi crops.

2. The learned Munsif 1st, Begusarai rejected the claim of the plaintiffs for Bhadai (maize) crops. He also disallowed the claim for Mirchai, Andi and sugarcane. He, however, allowed wheat (i) for the years claimed (1349, 1350 and 1363 Fs.) and (ii) also for 10 years more for which these was no claim. This was given on the ground that the land was capable of producing wheat according to the report of the Pleader Commissioner. He rejected the case of the defendants to the effect that the land produced only Jaokerai every year. On appeal the learned Additional Subordinate Judge, Begusarai affirmed all the findings of the learned munsif and he proceeded on the following basis as stated by himself in para. 28 of his judgement :-

"It is now well-settled that mesne profits are allowed for the best crops grown in the year and in absence of that, the rightful owner is entitled to the best produce which a man in wrongful possession could have produced with due diligence as a prudent cultivator........."

3. The questions canvassed in this Court are as to whether mesne profits have been correctly determined (i) as to the defendants liability from the date of dispossession (16-4-1941) till the date of the filing of the suit (17-3-1944), the same not having been mentioned in the preliminary decree for that period; (ii) as to the plaintiffs right to obtain a decree for wheat for the period of 10 years for which no claim was made by them in the plaint or in evidence, (iii) as to the quantity of produce of Alua allowed by the courts to the full extent of the claim at the rate of 900 maunds per year ignoring the report of the pleader Commissioner who had allowed only 2/3rd of the claim, that is, at the rate of 600 maunds for each year; (iv) as to the grant of interest not mentioned in the preliminary decree, though claimed in the plaint; and lastly (v) as to the rate of produce and sale rate by ignoring the real evidence on record.

4. Mesne profits are defined in Sec.2(12) of the Civil P.C. as "those profits which the person in wrongful possession of such property actually received or might, with ordinary diligence, have received therefrom, together with interest of such profits, but shall not include profits due to improvements made by the person in wrongful possession." It is quite clear that on the terms of this definition of mesne profits, the plaintiffs are entitled to (i) those profits which the person in wrongful possession of such property actually received or (ii) in absence of that which the person in wrongful possession might with ordinary diligence have received therefrom, together with interest thereon and in such cases, as held in Secretary of the State V/s. Saroj Kumar, AIR 1935 PC 49.

"...... What the plaintiffs have to show is that with reasonable diligence, more might have been realised than was actually realised in the way of profits...... As to what amounts to due diligence...... the person in wrongful pos