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Khushalrao Balaji Fasge Vs. Deorao Umaji Marathe - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSecond Appeal Nos. 288 and 289 of 1951
Judge
Reported in(1957)59BOMLR1136
AppellantKhushalrao Balaji Fasge
RespondentDeorao Umaji Marathe
DispositionAppeal allowed
Excerpt:
central provinces tenancy act (c. p. i of 1920), sections 2(7), 2(11), 4, 6, 6a(8), 6a(12), 6a(13), 6a(15) and 105-landlord's right of pre-emption when tenant sells his holding without consent of landlord-in case of such pre-emption whether title of landlord completed on execution of sale-deed or when possession is given-whether landlord entitled to mesne profits from date of sale-deed or from date of possession-indian limitation act (ix of 1908), article 109.; plaintiffs were the lambardar-landlords of two fields and the absolute occupancy tenant of the plaintiffs holding the two fields sold them to the defendants on november 28, 1942, without the consent of the lambardar. the lambardar applied to the revenue authorities asking for pre-emption under section 6-a(8)(b) of the central.....gokhale, j.1. these; two appeals arc 'filed by common plaintiffs against the dismissal of their suits by the lower appellate court except to the extent of annual rent for one year in. one suit which has been awarded to the plaintiffs. the suit'; have arisen, out of pre-emption proceedings. one rukhma-nand premsukh. who is not a party to these suits, was an absolute occupancy tenant of two fields bearing nos. 73/74 called. chikna and 79/80 called khari. these two fields were sold, by the tenant to respondents-defendants for rs. 5,000 on november 28, 1942.2. under the central provinces tenancy act no. 1 of 1920 as amended up todate (which will hereinafter be referred to as the tenancy act) a tenant cannot transfer an absolute occupancy without reference to ms landlord except in.....
Judgment:

Gokhale, J.

1. These; two appeals arc 'filed by common plaintiffs against the dismissal of their suits by the lower appellate Court except to the extent of annual rent for one year in. one suit which has been awarded to the plaintiffs. The suit'; have arisen, out of pre-emption proceedings. One Rukhma-nand Premsukh. who is not a party to these suits, was an absolute occupancy tenant of two fields bearing Nos. 73/74 called. Chikna and 79/80 called Khari. These two fields were sold, by the tenant to respondents-defendants for Rs. 5,000 on November 28, 1942.

2. Under the Central Provinces Tenancy Act No. 1 of 1920 as amended up todate (which will hereinafter be referred to as the Tenancy Act) a tenant cannot transfer an absolute occupancy without reference to Ms landlord except in certaincases. There is no dispute that Khushal, appellant No. 1, is the lambardar landlord, and as the absolute occupancies in these two fields came to be transferred in contravention of the provisions of the Tenancy Act, Khushal got the right of pre-emption. It appears that though the two fields were sold for a, composite consideration of Rs. 3,000, there were two revenue proceedings in in respect of the two fields. Revenue Case No. 7/XI-l was in respect of field No. 73/74 known as Chikna and Revenue Case No. 6/XI-1 was in respect of field No. 79/80 known as Khari. and the Naib Tahsildar fixed the price for each field and ordered the lambardar to deposit the amount by his order datedJune 5, 1944. On June 14, 1944, Khushal deposited the amount in respect of both the fields, and there is no dispute that the Naib Tahsildar executed thesale deeds in respect of these fields on the same date. Exbhit P-13 on the record is the sale-deed With reference to field Chikna and Exh.P-3 is the sale-deed. in respect of field.Khari. The two sale deeds came to be registered registered on June 15, 1944, and it is significant to note that these were presented for registration by Khushal and execution wasadmitted by the Naib Tahsildar. The Revenue Officer also passed an order that Khushal was to be placed in possession of,the two fields. But before possession could be actually delivered, respondent Deorao and his brothers, who were the purchasers, filed an appeal before the Sub-Divisional Officer against the order of the Naib Tahsildar granting pre-emption and applied for stay of delivery of possession, and it appears that the stay was granted on the same day with the result that actual possession was not delivered to the appellants. In these two appeals, the order of the Naib Tahsildar was set aside on November 11, 1944. Against these two orders, two appeals were filed by Khushal in the Court of the Additional Deputy Commissioner, who set aside the Sub-Divisional Officer's orders and restored the orders of the Naib Tahsildar on November 19, 1945.

3. It seems that there was a further proceeding by the tenants before the Revenue Tribunal, which, however, rejected their appeals on July 23, 1947, and the lambardar was put into actual possession of the two fields on December 10, 1945. On April 19, 1948, Khushal and his brothers, the present appellants, filed Suit No. 16-B of 1948 for recovering mesne profits in respect of field No. 73/74 for two years of 1944-45 and 1945-46 and on April 24, 1948, they filed Suit No. 18-B of 1948 for recovering mesne profits in respect of field No. 79/80 for the said two years. These two suits were resisted by the purchasers, the respondents, on several grounds.

4. The trial Court held that the plaintiffs were entitled to mesne profits, but that their claim for mesne profits for 1944-45 was time-barred while their claim for mesne profits for the year 1945-46 was decreed in both the suite. As against these decisions the respondents filed two appeals regarding the award of mesne profits in respect of the year 1945-46, while the plaintiffs cross-objected regarding the disallowance of their claim for mesne profits for the year 1944-45. The appellate Court allowed the appeals and dismissed plaintiff's' suits holding that plaintiffs were not entitled to any mesne profits because their title to the two suit fields was not completed till they obtained actual possession on December 10, 1945. That is why plaintiffs' suits came to be dismissed by the appellate Court except that they were awarded the amount of annual rent for the field No. 78/74 Chikna for the year 1944-45 in Civil Suit No. 16-B of 1948.

5. It may be mentioned that so far an the question of limitation was concerned, the lower appellate Court held that assuming the plaintiffs were entitled to mesne profits, they would be entitled to mesne profits only regarding' the year 1945-46. The view of the trial Court on the question of limitation regarding mesne profits for 1944-45 was upheld by the lower appellate Court.

6. Now, in these two appeals, Mr. Hadkas, the learned advocate for the appellants, has challenged the decision of the lower appellate Court dismissing the plaintiffs' suit on the ground that the lower appellate Court was wrong in its view that the title of the plaintiffs to the two fields was not completed till December 10, 1945, when they got actual possession of the two fields. Mr. BadKas contends, secondly, that as regards the claim for mesne profits for till year 1944-45, both the Courts were in error in holding that theplaintiff claim was barred by limitation.

7. These two appeals have been argued elaborately, but, in my opinion, the point involved in these appeals falls within a very narrow compass. The question to be considered is whether the title of the plaintiffs as the pre-emptors was complete as soon as they obtained duly executed sale-deeds in their favour on June 14, 1944, which were registered onJune 15, 1944,or whether the title was not complete till the plaintiffs were put into possession of the two fields on December 10, 1945. According to Mr. Nadkas, under the provisions of the Tenancy Act, the pre-emptor completes his title on the date when the sale-deeds are executed in his favour, and if at the date of the sale-deeds crops are standing on the land, then the tenant would be entitiled to those crops by virtue of the provisions of Section 6-4 of the Tenancy Act. In this case, there is no dispute that on June 14, 1944, no crops were actually standing on the two fields, That seems to be clear from the statement made in the applications for stayfiled by the respondents before the Sub-Divisional Officer on June 14, 1944. Mr. Badkas contends that since there were no crops standing in the two fields on June 14, 1944, and since the title of his clients was completed as soon as the sale-deeds were executed on June 14, 1944, and registered on June 15, 1944, his clients became immediately entitled to actual possession, and the mere fact that there were subsequent proceedings taken by the tenants which delayed plaintiffs getting possession would not come in their way from recovering mesne profits from the purchasers. According to Mr. Badkas under the provisions of the Tenancy Act, actual possession is not a condition precedent to the creation of title in the pre-emptor. In my opinion, there is considerable force in the contention of Mr. Badkas.

8. In order to appreciate the point which has been raised in these two appeals it would be necessary to refer to certain relevant provisions of the Tenancy Act. Under Section 2(7), a landlord is defined as the person of whom a tenant holds land, and to whom the tenant is, or but for a contract; would, be, liable to pay rent for such land. Under Section 2(11), a tenant is defined as a person who holds land of another person, and is, or but for a contract would be, liable to pay rent for such land to such other person, and the sub-section then sets out the categories of persons who would not be tenants. Section 4 defines an absolute occupancy tenant and Section 6 sets out the rights of transfer of such absolute occupancy tenant and the cases in which he may transfer his rights without reference to the landlord. Section 6-A refers to the rights of transfer of such a tenant in other cases and the landlord's right of pre-emption. Mr. Badkas has drawn my attention to the fact that, though the marginal, note to Section 6-A refers to the landlord's right of pre-emption, that word has not been definedin the Act itself and is not referred in in the relevant sections of the Tenancy Act. Under Sub-section (8) of Section 6-A, if the tenant makes a transfer of any right in his holding in contravention of the foregoing provisions of the section and if the transferee temporarily or permanently obtains possession of the right, then the landlord shall he entitled at his option, under Clause (b) of Sub-section (8), to purchase the right of the tenant through a Revenue Officer in the manner provided if the transfer is by sale and the consideration for the right transferred cannot be determined from the sale-deed or if the transfer is otherwise than by sale, the purchase of the right being for a sum equal to the value, fixed by the Revenue Officer, of the right transferred, or to receive consent money of a sum equal to the annual rent of the holding or part of the holding, the right in which is transferred.

9. In this case, the lambardar proceeded under Clause (6) of Sub-section (8) of Section 6-A because he felt that as the two fields came to be transferred for a composite consideration of Rs. 5,000 the consideration of the right transferred could not. be determined from the sale-deed itself, and he elected to purchase the right. The is why the proceedings came to be instituted by the lambardar under the first part of Clause (6) of Sub-section (8) of Section 6-A of the Tenancy Act, and there is no dispute about this position. Under sub-,s. (12)(a.) of Section 6-A, if the landlord elect to purchase the right through a Revenue Officer under Sub-section (8) and the value of the right is required to be fixed by the Revenue Officer, it is the landlord who has to apply to the Revenue Officer to fix the value of the right and then that officer will fix the value of the right in respect of which the application is made in accordance with the rules made under Section 109 of the Tenancy Act. There is no dispute that the Naib Tahsildar fixed the price in accordance with this provision and ordered lambardar to deposit the amount. That deposit is to be made under Clause (c) of Sub-section (12) of Section 6-A, and there is no dispute that the presentplaintiffs deposited the amount within the period prescribed under Clause (c) of Sub-section (12). Then the procedure to be followed in the pre-emption proceedings is set out in Clause (d) of Sub-section (12), and as that clause is the clause which has to be construed in these two appeals, it is necessary to set it out.Clause (d) of Sub-section (12) runs thus:-

On such deposit being made, the Revenue Officer shall, subject to rules made under Section 109, call upon the tenant or the transferee, as the case may be, to execute the sale-deed, and if the tenant or the transferee neglects or refuses to execute it, execute it on his behalf, deliver the sale-deed to the landlord and put him in possession of the right and the sum deposited shall, subject to the rights of the mortgagee or the charge-holder under clause (b), be paid to the tenant or the transferee, as the case may be.

As I have already pointed out, there is no dispute that the deposit was made by the lambardar within the time prescribed under Clause (c) of Sub-section (12).

9. Now, Mr. Badkas contends that since the transferee neglected or refused (o execute the sale-deeds in his favour in respect of the two lands, it was the Revenue Officer who executed the sale-deeds on June 14, 1944, and the Maine were duly registered on the next day, that is on June 15, 1944. These were presented for registration by Khushal, the lambardar, and on the same day the registration was complete, the execution having been admitted by the Naib Tahsildar. Mr. Badkas contends that since these sale-deeds were obtained by him, his title to the fields in suit was completed, and the mere fact that actual possession was not delivered to him would not deprive him of his right to mesne profits from the date on which his title was complete. The lower Appellate Court was of the view that the Tenancy Act provided, the manner in which the right of pre-emption, was to be enforced, and until the whole chain, of the procedure was complete, it could not be said that title arose in the pre-emptor. Mr. Badkas disputes this position and he submits that the provisions of Clause (d) of Sub-section (12) of Section 6-A of the Tenancy Act would indicate that as soon as the sale-deeds are executed, he would get a complete title in the suit fields, and the delivery of possession, would be a matter of further procedure which may be delayed for one reason or the other on account of: the attitudeadopted by either the tenant or the transferee.

10. Mr. Chendke, the learned advocate who appears on behalf of the defendants and who has elaborately argued these appeals in support of the view of the lower appellate Court, contends on the other hand that unless the chain of the detailed procedure which has been prescribed by the Tenancy Act is completed, it cannot be said that the title of the plaintiffs is complete. In the first instance he says that the Tenancy Act is a self-contained Code in respect of the right of pre-emption. In this connection he has invited my attention to Section 105 of the Tenancy Act, which says that except as otherwise provided in the Act no civil Court shall entertain any suit instituted, or application made, to obtain a decision or order on any matter which the State Government, a Revenue or Settlement Officer is, by this Act empowered to determine, decide of dispose of; and in particular and without prejudice to the generality of this, provision, no civil Court shall exercise jurisdiction over any of the matter provided for in the clauses of this section. Clause (a) of Section 105 shows this any matter as to the enforcement of the right of pre-emption under Section 6-A for Section 12-A, except under Sub-section (15) of Section 6-A or Sub-section (15) of Section 12-A, would not comewithin the purview of the jurisdiction of a civil Court. Now Sub-section (15) of Section 6-A provides that notwithstanding anything contained in the section, if any right in. the holding is sold by the tenant, the landlord shall, on the grounds that the consideration is fraudulently stated in the sale-deed and does not represent the actual consideration, be entitled to institute a civil suit for purchasing the right for a consideration to be determined by the Civil Court. Mr. Chendke points out that it is only in such a case that the plaintiff would have recourse to filing of a suit, for enforcing his right of pre-emption. The provisions of Sub-section (15) of Section 12-A are similar, but we are not concerned with them in these appeals.

11. There is no dispute that if plaintiffs had filed a suit of enforcing their right of pre-emption under Sub-section (15) of Section 6-A of the Tenancy Act, the provision of 0, XX, Rule 14, of the Code oil Civil Procedure would have applied. Under Rule 14. of Order XX, where the Court decrees a claim to pre-emption in respect of it particular sale of property and the purchase money has not been paid into Court, the decree shall, under Clause (a) specify a day on or beforewhich the purchase money shall be so paid, and under Clause (6) direct that on payment into Court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in Clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs. Under Clause (b) of Rule 14(1) of Order XX of the Code of Civil Procedure, therefore, the title of the plaintiff will be deemed to have accrued from the date of the payment by him into Court of the purchase money. Mr. Chendke points out that plaintiffs admittedly cannot take advantage of the provisions of Order XX, Rule 14, of the Civil Procedure Code, because plaintiffs have chosen to proceed by way of applications under Sub-section (8) of Section 6'A read with Sub-section (12)(a) of the Tenancy Act, and it is contended that unless the sale-deed is executed and the same is delivered to the landlord and he is put in actual possession of the fields, his title cannot be said to be complete. At one stage Mr. Chendke was disposed to contend that in this case even the sale-deeds executed by the Naib Tahsildar were not delivered to the plaintiffs, but that contention seems to be clearly misconceived because the sale-deeds themselves show that they were presented before the Sub-Registrar by thelambardar himself on June 15, 1944, on which date also the Revenue Officer admitted their execution. It cannot, therefore, be said that there was no delivery of the sale-deeds to the landlord. In support of his argument that the title of the landlord cannot be said to be complete till he obtains possession, Mr. Chendke relied on the principle that the right of pre-emption is the right of substitution, so that unless the pre-emptor is fully substituted in place of the vendee, his title cannot be said to be complete. It is well settled that when a pre-emption is allowed what takes place is the substitution of the name of the pre-emptor in the sale-deed in place of that of the vendee. The law of pre-emption is to be strictly construed as it derogates from the general law, and interferes with the right of free, transfer. See Sakharmn v. Dashrath [1953] Nag. 518. The argument is that unless the purchaser is displaced by thelambardar by obtaining: actual possession of the fields, the latter's title cannot be said to be complete, and Mr.Chendke says that Clause (d) of Sub-section (12) of Section 6-A of the Tenancy Act shows that putting the landlord in possession of the right is an essential condition precedent to his obtaining a complete title. In my opinion, that contention is not sound. What is contemplated under Clause (d) is that the Revenue Officerhas to execute the sale-deed on behalf of the transferee if the transferee neglects or refuses to execute it, and after executing the sale-deed the Revenue Officer has to deliver the sale-deed to the landlord. As soon, as the sale-deed is executed, provided the requirements of the law of registration are fulfilled, I see no reason why the title of the landlord should not be complete. It Mr. Chandke's argument was to be accepted, since there is no reference toregistration in the Tennney Act, the sale-deeds executed by the Revenue Officer would, not require registration even though the value of the property is more than Rs. 100. In my opinion, the sale-deeds contemplated to be executed either by the tenant orthe transferee or by the Revenue Officer under Clause (d) of Sub-section (12) of Section 6-A of the Tenancy Act would result in a sale which would be governed by the Provisions ofth6 Transfer of Property Act.

12. Then Mr. Chendke relied on a decision of the Privy Council in Deonandan Prasad Singh v. Hamdhari Chowdhri ILR (1916) 44 Cal. 675 : 19Bom. L.R. 437, in which their Lordships held that where a suit for pre-emption' is brought, it is on payment of the purchase money on the specified date that the plaintiff obtains possession of the property, and, until that time, the original purchaser retains possession and is entitled to the rents and profits. But that case is clearly distinguishable because it is governed by Section 214 of the Code of Civil Procedure of 1882, and as I have already pointed out, the position under the present Civil Procedure Code, under Order XX, Rule 14, is that the title of the plaintiff is to be deemed to have accrued from the date of the payment into Court of the purchase money.

13. Then Mr. Chendke also relied in support of his argument on a ruling of the Nagpur High Court in Radhakisan v. Shridhar [1952] Nag. 636 : (1952) N. L. J. 245 where it was held that for the purpose of claiming pre-emption it was not necessary that there should be a sale as required by Section 54 of the Transfer of Property Act, and that the word 'sale' used in Section 176 of the Berar Land Revenue Code, must not be construed in the narrow sense in which it is used in the Transfer of Property Act. That was a case tinder the provisions of the Berar Land Revenue Code, and what the Court had to consider in that case was whether the right of pre-emption could be defeated by the parties to the sale not executing a sale-deed, and it was held that as soon as the title of the seller ceased, a right of pre-emption arose and a suit for pre-emption was maintainable. That case cannot assist Mr. Chendke's clients. In my opinion, there is nothing in the provisions of the Tenancy Act which would indicate that the sale-deeds contemplated under Clause (d) of Sub-section (12) of Section 6-A to be executed by the tenant or the transferee or the Eevenue Officer would not be governed by the provisions of the Transfer of Property Act and of the Registration Act.

14. Mr. Chendke also contended that assuming the provisions of the Transfer of Property Act were applicable, property would not necessarily pass as soon as the sale-deed is registered, for the true test is the intention of the parties, and. in support of this contention he referred me to the observations of Mulla in his Transfer of Property Act at page 286 (1956, 4th edn.). But that observation has to be read as a whole. Sir Dinshah Mulla has observed in this connection that property in the case of a sale does not pass, or, in other words, ownership is not transferred until registration is effected. But once registration is effected, the title relates back to the date of execution. This is the effect of Section 47 of the Registration Act. It is true that, according to him, it does not follow that property passes as soon as the instrument is registered, for the true test is the intention of the parties. But registration is prima facie proof of an intention to transfer, but it is no proof of an operative transfer if there is a condition precedent which must be strictly proved. In this case, the instruments were executed on behalf of the transferee by the Revenue Officer, the sale-deeds were presented for registration by the pre-emptor on the next day and due execution was admitted before the Sub-Registrar on that very day by the Naib Tahsildar who also admittedly passed an order far delivery of possession. It cannot, therefore, be contended that there was no intention to pass the ownership on 1 hat day by the mere fact that the actual delivery of possession could not be effected because of the stay order received from the appellate authority that, very day.

15. Then Mr. Chendke relied on the provisions of Sub-section (13) of Section 6-A of the Tenancy Act in support of his argument. That sub-section provides that if there are standing crops on the land of which the landlord has to be put in possession, under Clause (b) of Sub-section (II) or Clause (d) of Sub-section (12), he shall be put in possession of the land after such crops have been reaped. In my opinion this sub-section instead of supporting Mr. Chendke's contention really goes against him, because it shows that though Clause (d) provides for delivery of possession to the landlord after the execution of the sale-deeds, the delivery of possession may be delayed in case there are standing crops on the land. That shows that even though the title of the landlord would, be complete a soon as the sale-deeds have been executed in his favour either by the tenant or the transferee or the Revenue Officer, still as he would not be entitled in law to the standing crops on the land on that date, the delivery of possession has to be postponed till the crops have been reaped by the person in prior possesion. Under Section 55(6)(a) of the Transfer of Property Act, the buyer is entitled, where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of, the property, and to the rents and profits thereof. In my opinion, the plaintiffs would be entitled to mesne profits as soon as their title was completed in respect of the suit fields and that title would be complete on June 14, 1944, when the two sale-deeds were executed in favour of the plaintiffs by the Nail) Tahsildar and registered on June 15, 1944.

16. That brings me to the question whether plaintiffs' claim as regards mesne profits is within limitation. Now so far as mesne profits for the year 1945-46 are concerned, there is no dispute that that claim would be within time. That was the view taken by both the Courts and obviously it is correct. There is also no dispute as to the quantum of mesne profits which would be awardable to the plaintiffs in respect of the two fields for the year 1945-46. So far, however, as plaintiffs' claim for mesne profits for 1944-45 is concerned both the Courts have rejected that claim on the ground that it would be time-barred. Mr. Badkas argued that his client's claim in respect of mesne profits for 1944-45 would not be time-barred because his cause of action to recover mesne profits for the year 3944-45 did not arise on June 14, 1944, the reason being that oil that date on the admission of the defendants themselves there were no crops on the fields. Thereafter on November 11, 1.944, the order of the Naib Tahsildar was set aside and that was not restored till November 9, 1945, but if the title of the plaintiffs was completed on June 14, 1944, when the two sale-deeds came to be executed in their favour, then they would be undoubtedly entitled to mesne profits from the land as soon as they were wrongfully received by the defendants. At one stage Mr. Badkas tried to argue that his cause of action was cancelled because of the setting aside of the Naib Tahsildar's order on November 11, 1944, and in support of his argument he relied on a ruling Of the Nagpur High Court in Prabhakar v. Charuirakant (1943) Nag. 422, where it; was held that Section 9 of the limitation Act applied to cases where the cause of action continued to exist and not to those where it was cancelled by subsequent events. In my opinion, that case is distinguishable on the facts, because the Court held there that the cause of action for the mortgagee's claim for a personal decree arose on the date on which the security was finally lost to the mortgagee, and that Was why the mortgagee's claim was held to be in time. Apart from that it appears that their Lordships referred with approval to certain observations of Sadasiva Ayyar J. in Muthu Korahkai Chetty v. Madar Ammal ILR (1919) 43 Mad. 185. But these observations of the learned Judge seem to have been commented upon in a later Full Bench decision of the Madras High Court in Sundaramma v. Abdul Khadar ILR (1932) 56 Mad 490. Mr. Badkas. also contended that during the period between Nov-ember 11, 1944, when the order of the Niab Tahsildar was set aside and November 9, 1945, when the order of the Naib Tahsildar was restored, it would have been open for the defendants to contend that they were lawfully in possession of the property and, therefore, according to his contention, Article 109 of the Limitation Act would not apply. In my opinion, that contention can not be accepted, because as soon as the order of the Naib Tahsildar was restored, the title of the plaintiffs became effective and it would relate back to June 14, 1944 When the two sale-deeds came to be executed in their favour. In my opinion therefore, plaintiffs' claim to mesne profits would be governed by art.109 of the Limitation Act. Under that article, the period of limitation for a suit for recovering mesne profits would begin to run when the profits are received by the defendants. Unfortunately, there is no evidence whatever on the record as to when the defendants received the profits from these lands for the year 1944-45. The cause of action as given in the plaint is may 1, 1945 for profits for the year 1944-45, but that is disputed by the defendants. No issue, however, was framed on this point and there seems to be no evidence m the record which would enable me to give a finding on that point. In my opinion, therefore, the case will have to be remanded to the trial Court with regard tomesne profits for the year 1944-45. As I have held that the plaintiffs are entitled to mesne profits, it is obvious that they would not be entitled to the amount of annual rent which had been awarded to them under the decree of the lower appellate Court.

17. The result is that these two appeals must be allowed. The decrees of the lower appellate Court in both the appeals will be set aside and the order of the trial Court in both the suits, viz. Suit No. 16-B of 1948 and Suit No. 18-B of 1948, will be restored regarding mesne profits for the year 1945-46. As regards mesne profits for the year 1944-45, the proceedings in both the appeals will be sent down to the trial. Court for deciding the issue as to the date when the profits were received by the defendants in respect of both the suit lands. Both the parties will be allowed to lead evidence on that issue and the trial Court will dispose of the claim of the plaintiffs regarding mesne profits for the year 1944-45 in the light of the findings on the issue applying Article 109 of the Limitation Act. I may state that so far as the quantum of mesne profits for the year 1944-45 is concerned there is no dispute between the parties as the same has been determined during the pendency of these suits by the Commissioner, In the circumstances of this case, each party will bear its own costs in this appeal. As regards costs of the lower Courts, the plaintiffs will be entitled to half the cowls of both the lower Courts from the defendants. As regards the costs of the further proceedings in the trial Court, that Court, will decide the matter.


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