The burden of proving mesne profits lies on the plaintiff, and all evidence must be properly recorded and considered.

Spencer, J.

1. This was an application by the fourth defendant for mesne profits on the extent of land in the enjoyment of the plaintiff between the date of the decree in the first Court and the decision of the appeal. The matter was referred by the District Judge to a Commissioner to ascertain the amount of mesne profits due. The Commissioner directed the plaintiff to adduce her evidence first, on the ground that she had been in possession of the property and was thus in the best position to state how much profit she had obtained.

2. The plaintiffs pleader refused to open his case, upon which the petitioners witnesses were examined and the case was closed. Meanwhile, the counter-petitioner (plaintiff) applied to the District Court to direct the Commissioner to record her evidence. The District Judge in an order on the interlocutory application decided that the Commissioner was right and refused the counter-petitioners request.

3. The questions now before us are (1) whether the District Judge was right in giving the petitioner mesne profits upon 15 acres 42 cents of wet land and (2) whether he was right in not allowing the appellant an opportunity to adduce her evidence As regards the extent of the land, the plaintiffs pleader relies on an admission made by the fourth defendant in another suit, O.S. No. 393 of 1916, that she (plaintiff) was only in possession of 8 acres 47 cents, and be argues that She petitioner is not entitled to get mesne profits on a larger extent than what he admitted that she was in possession of. The circumstances under which the statement was made in the other suit have not been proved. The Judge relied on that extent as given in the delivery warrant and I think he was right in doing so.

4. On the second point, I am of opinion that the Commissioner and the District Judge were in error in requiring the plaintiff to open her case. Order XVIII, Rule 1, Civil Procedure Code, which is applicable to miscellaneous proceedings through Section 141, lays down that the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff.

5. In a case like the present where the fourth defendant is the person claiming mesne profits, he is in the position of a plaintiff, as it is his petition that is the foundation of the proceedings and, if he adduces evidence at all, no mesne profits can be awarded to him. Section 2, Clause (12) defines mesne profits as those profits which a person in wrongful possession of such property actually received or might, with ordinary diligence, have received. The profit which a person actually received is a matter within the peculiar knowledge of that person and, under Section 106 of the Evidence Act, the burden of proving the amounts actually received will lie on the person who received them; but the burden of proving the profits that the person in occupation might have received will lie on the person who claims them.

6. The oases cited for the respondent, Brojendro Goomar Roy v. Madhub Chunder Ghose (1882) 8 Cal. 343 and Dinobundhoo Nundee v. Keshub Chunder Ghose (1865) 3 W.R. M/s. 25, do not go further than to show that it lies on the person who actually received mesne profits to show how much he received.

7. These two cases are not authorities for saying that it is for the person in occupation to prove what mesne profits should be awarded, which is a very different thing. In Krishna Mohun Basak v. Kunjo Behari Basak (1881) 9 C.L.R. 1; it was observed that there may be cases in which the defendants in a suit for mesne profits may properly be called upon to produce their accounts and to give information upon facts within their special knowledge, but that, under the provision of Section 179, Civil Procedure Code of 1879, which corresponds to Order XVIII, Rule 1, the right to begin was with the plaintiff and the appellants contention that it was for the defendant to begin was not entitled to any consideration.

8. The counter-petitioner applied to the District