(1) This appeal is filed by defendants 2 to 4 in O. S. 29 or 1948 on the file of the Subordinate Judge's Court of Guntur. It relates only to costs and mesne profits.
(2) The suit was instituted against the Provincial Government of Madras, represented by the District Collector, and the tenants defendants 2 to 4 for possession of suit propoerties for mesne profits, past and future. the basis of the suit was that the suit properties of an extent of about 12 acres,belonged to the plaintiffs. They are lanka lands, which were submerged under the Krishna river several years back but reappeared in or about the year 1943. They adjoin the lands belonging to the 1st defendant. Under a mistakenimpression that these and some other lanka lands were part of the Government lankas, the 1st defendant included them in a lease granted by him to defendants 2 to 4 on 7-9-1944, for a period of three years. Subsequently, the plaintiffs, with a view to have the title to the suit properties ascertained, requested the Government to have a survey of these lands ordered. This request was complied with and the survey disclosed that the suit lands before immersion were the properties of the plaintiffs. Therefore, by his proceedings, dated 25-2-1947, the Collector, Guntur, directed that these lands should not be included in the lease for the next period.
In pursuance of this communication the plaintiffs tried to obtain peaceful possession of these lands from defendants 2 to 4 but failed even after the expiry of the lease, owing to the obstructive attitude of defendants 2 to 4. This obliged the plaintiffs to file the suit for the reliefs mentioned above. The 1st defendant's plea was that the suit lands belonged to the plaintiffs, that he had no objection to their taking possession of the same, that the lessees, though liable to vacate it by 30-6-1947 the date of the expiry of the lease, wilfully and unauthorisedly occupied the same in contravention of terms of the lease, and that, therefore, the 1st defendant was not responsible for the consequences of the unauthorised occupation of defendants 2 to 4 and that in those circumstances no liability could be fastened on him either with regard to mesne profits (except as to actual proportionate rental received by him on the suit lands) or costs.
The real contesting defendants to the suit were defendants 2 to 4. They resisted the suit denying the right of the plaintiffs to the lands in question. They also disputed their liability to pay mesne profits on the ground that the lands were leased out to them and 'they were tenants holding over with the bona fide belief that fresh leases would be granted to them for a further period of three years.'
(3) The trial Court decreed the suit in toto with costs against all the defendants. Mesne profits were awarded at the rate of Rs.50/- per acre as claimed by the plaintiffs, masking all the defendants joinly and severally liable in respect thereof. Defendants 2 to 4 have preferred this appeal confiming it to mesne profits and costs as already mentioned, and impleading the State of Madras as one of the respondents.
(4) The first question that falls for decisions in this appeal is whether the plaintiffs are entitled to mesne profits against one or the other of the defendants and if so, for what period and at what rate. It may be remarked at the outset that the learned Judge had not considered the question of the liability of the defendants to pay mesne profits. Nor is the discussion relating to the quantum of damages satisfactory. He failked to consider the evidence for the defendants and the admissions of the plaintiffs' witnesses in that behalf. However, it is unnecessary to devote any discussion to this aspect of the matter in the view I have taken of the liability to pay mesne profits.
(5) The right of the plaintiffs to claim mesne proits depends upon whether the possession of he defendants was wrongful from its inception, that is, from the date of the lease. So far as the 1st defendant is concerned, he can be regarded as being in wrongful possession in the sense that he was taking the rent from the other defendants though he was not entitled to do so. the 1st defendant cannot, therefore, retain the rent, which is not legitimately his, and has to disgorge himself of it. In fact, the 1st defendant offered to pay the plaintiffs the prportionate rent received.
(6) But there is no basis for holding the 1st defendant a trespasser and make him liable jontly along with the other defendants for profits on the calculation of what the defendants 2 to 4 got out of the land. There is authority for this propposition in -- 'Gurudas Kundu v. Humendra Kumar Roy', AIR 1929 PC 300 (A). Even the definitioin of 'mesne profits' contained in S. 2, Cl. (12) cannot lend any support to the view taken by the lower Court so far as the Government (lessor) is concerned. The measure of damages in this respect can only be profits received by the 1st defendant or which might have been received by it with due diligence. there is no evidence in this case that with the exercise of due diligence, more rent could have been received.
There are a number of rulings of the Courts in India which have taken the view that the basis of calculation of mesne profits payable by a landlord or lessor is the rent actually received by him unless it could be established that with due diligence he could have obtained a higher rent. See -- 'Kiran Chandra v. Erfan Karikar', AIR 1934 Cal 503 (B) and --'Bhupendra Narain Sinha v. Rajeswar Prosad', AIr 1931 Cal 802 (C). This is also the opinion expressed by the Madras High Court in -- 'Venkatarayulu Naidu v. Raghunadha Rao', AIR 1940 Mad 913 (D). It follows that assuming the tenants are liable to pay mesne profits on the basis of what they got out of the land or could have obtained with due diligence, the measure of damages so far as the landlord is concerned (in this case the first defendant) is only the rent which he has actually received or would have got with the exercise of due diligence. The result is that the decree for mesne profits against this defendant will be registricted to a sum of Rs.60 per year being the rent actually received in respect of the suit lands.
(7) Now coming to the case of defendants 2 to 4 the claim for mesne profits has to be dsiallowed. It looks to me that it is difficult to look upon them as trespassers. They were inducted into possession by the 1st defendant as lessees in the year 1944, just a year after the reformation of the lankas. Before going to the citations, it is useful to refer tothe recitals in the plaint which form the basis of the suit.
In paragraph 3(b) of the plaint, it is alleged as follows:
'Under a mistaken impression that the suit land and some other lanka lands nearby belonged to the Government, the latter leased out the same on 7-9-1944 to the second defendant-Society for a period of three years. By its communication dated 25-6-1946 the 1st defendant informed the plaintiffs and others tht no patta lands were included in the lanka lease granted to the second defendant-Society. the said communication was made in the honest belief that really no portion of the plaintiffs' land was wrongfully leased out by the 1st defendant to the second defendant. But as plaintiffs pointed out to the first defendant the mistake under which the parties were acting, the first defendant directed a check-up to be made by the survey authorities. the said check-up resulted in the first defendant realising that an extent of 19 acres 10 cents of S. No. 1/6-B and some other lands in the vicinity was wrongly included in the lease in favour of the second defendant.'
(8) The grievance of the plaintiffs, as disclosed in the next paragraph, is tht in spite of the orders of the authorities concerned and their effort to obtain peaceful possession of the suit lands, defendants 2 to 4 would not allow them to do so. On these averments it looks tome that it is difficult to lay a foundation for the claim of mesne profits at Rs.50/-. That apart, there does not seem to be any legal basis for regarding the defendants 2 to 4 as trespassers and their possession as wrongful.
In this context, it cannot be overlooked that the suit lankas having been submerged several years back, reappeared only in the year 1943. At the time of the lease the title of the plaintiffs to these lands was not established. It is pointed outto me that the survey of 1931 did not disclose the right of the plaintiffs to these lands. It was urged that even in the petitions submitted by the plaintiffs in the year 1945 and 1946 there were only requests to the Government to undertake a survey so as to decide the title to these suit lands, and it is only the later survey that led to the recognition of the plaintiff's title to these lands. At the time of the lease it was thought by all the parties concerned that the legal title to the lands existed in the Government.
(9) Mr. Ramachandra Rao, Counsel for the respondents, maintained that this last factor is immaterial. According to him the possession of defendants 2 to 4 is wrongful from the inception on the theory of 'relation back'. The foundation for this argument is a passage in the 'Law of Torts' by S. Ramaswamy Iyer (4th Edn.) at p. 100:
'The doctrine of trespas by 'relation back' carries this presumption to its farthest limit. Where an owner who had been kept out of possession enters upon his land, his possession relatesback to the date at which his legal right to enter first accrued and he can maintain trrespass and recover damages or 'mesne profits' as from that date.'
Again at page 105, the Author says:
'The plaintiff need not prove tht it was wilful or negligent, much less that it was attended with any force, violence or damages.'
(10) Reliance is placed on a simialr passage in Clerk and Lindsell on 'Torts' (10th Edn.) at page 507:
'Trespass being an invasion of a legal right is independent of intention or negligence. It is no defnce that the trespass was unintentional, provided the physical act of entry was voluntary; as where a person strays off a foot-path in the dark, or where, the boundary between the plaintiff's and the defendant's land being illdefined, the defendant in moving his own grass by mistake moves some of the plaintiff's but if the act be involuntary it is otherwise.'
Regarding the doctrine of 'relation back' the following passage occurs at page 514 of the same book:
'In the early periods of history of our law, might seems to some extent to have been confounded with right and actual possession to have been more highly favoured than property or the legal right to possession. Where at the time of the commission of any trespass upon land the owner happened to be out of possession, either by reason of his having been wrongfully ousted or by reason of his having neglected toenter into possession upon the accrual of his title, he seems to have been without remedy for such respass. In the course of time, however, the injustice of not extending to the right of possession the remedies which were allowed to bare possession came to be recognised, and a legal fiction was introduced whereby the party having the right to possession was, upon entry, deemed to have been in possession from the date when his right of entry accrued.'
(11) These doctrines can have no applications to a case like the present where the title of the plaintiffs was not recognised on the date of the lease. On the other hand it was thought by all the parties concered having regard to the jux-taposition of the suit lands to the property of the Government when they reappeared in the Krishna river the legal title thereto vested in the 1st defendant. That apart even in England, Courts did not give effect to this doctrine as appears from the passage in Clerk and Lindsell on 'Torts' at page 515:
'The Courts, however, did not go to the whole length of treating the right to possession as per se equivalent to possession; they still required that a plaintiff who seeks to recover damages for a trespass committed while he was out of possession should, before action brought go through the form of entry, or which is equivalent, of making a formal claim.'
(12) On the basis of this passage, the plaintiff before they could succeed in their claim for mesne profits should prove that they made a formal claim. In this case what transpires from the plaint is that the plaintiffs called upon the defendants to surrender possession of the suit lands only after a communication was received from the District Collector in February 1947.
(13) Support is derived for the view that defendants 2 to 4 should not be treated as trespassers from the pronouncement of the Privy Council in -- 'Gurudas Kundu Chaudhari v.Hemandra Kumar Roy (A)' already referred to. There, in an appeal against the judgment of the High Court of Calcutta, the Judicial Committee had to decide whether the plaintiffs were entitled to mesne profits up to the date of the delivery of possession of land to them and whether the lesors were liable jointly and severally with the lessee, who was in actual possession of the land, for mesne profits based on the produce value of the land, or were merely liable in respect of the rent they had received from the patnidar. That case also related to a dispute regarding the properties that once disappeared in the Ganges and reappeared after several years. Those land adjoined those of the Government and the latter assumed them to be an accretion to their property and put some tenants upon it. After some time one of the three familites to whom originally these proeprties belonged namely the Kundu family applied to the Collector for recognition of his title to the property and this claim was recognised by the Government. They continued the lessee who was already inducted into possession by the Government.
After a while the other two familites, whohad title to these properties, raised an action for possession of their share in those lands and for mesne profits, impleading members of the Kundu family, hwich was originally recognised by the Government as the owner of the whole property, the tenant etc. the suit was decreed with mesne profits against the defendants, the amount of mesne profits to be ascertained in execution. In execution of the decree the two questions mentioned above were raised. The Calcutta High Court found both the issues in favour of the plaintiffs. On appeal, by thelessor, the Kundu family, the Privy Council reversed the decision of the High Court on the question of joint liability in the view that the decreefor mesne profits could not be regarded as a proper joint and several decree and that it should be construed 'applicando singula singulis'.
In dealing with the argument of Mr. Upjohn, that:
'the judgment was against them, and it was against them upon the theory that these people were all trespassers; not only were the Kundu defendants trespassers but Srish (being a tenant) was a trespasser. He was put in by the Kundus; the Kundus had no real right, and therefore, he had not a right. Accordingly, as the decree was for joint and several liability, you may take the mesne profits upon the calcualtion of what Srish got out of the land, and get decree against all the others for that amount',
their Lordships remarked that they ad a great difficulty in looking upon Srish as a trespasser, or for that matter, in one sense, even the Kundus as trespassers, beause they were in possession of the land and on theonly legal title to it which existed, namely, the lease from the Government.
They further observed tht the Kundus were in wrongful possession only in the sense that they were taking the whole profits while they were entitled to a portion thereof. It is clear from these observations that the position fo a tenant who was let into possession by a person whose title to the property was recognised, though ultimately it turned out not to be well founded, could not be regarded as that of a trespasser for purposes of mesne profits.
(14) Mr. Ramachandra Rao urged tha these observations should not be taken too literally, for two reasons, first that the question of measure of damages payable by the tenant was not before their Lordships, and secondly, that an Privy council had recognised the principle that an alience from a widow was liable to pay mesne profits from the date of the death of the widowand not from the time when the alienation came to be adjudicated to benot binding on the reversion. A regards to the first part of the argument, suffice it to say tht the remarks were quite relevant as a contention was put forward that as both the tenant as well as the landlord were trespassers and as there was a joint and several liability, mesne profits had to be calculated on the basis of what the tenant fot out of the land. Coming to the decisions which have laid down that in a suit by a reversioner to recover possession of properties from an alienee from a widow on the ground that the alienation is not binding on the reversioner, the reversioner is entitled to mesne profits from the timeof the death of the widow, they are not quite appropriate in this context. That principle hasnot been extended to an alienation by a father or the guardian of a minor.
Dealing with the latter kind of cases, the Judicial Committee observed in -- 'Banwari Lal v. Mahesh', AIR 1918 PC 118 (E), that the defendatns were to be deemed to be lawfully in possession until the sales were set aside and they were not accountable for mesne profits. The analogy between those cases and cases like the present one is more appropriate. It is unnecessary for me to puruse this point any further, in the light of the observations of the Privy Cuncil in -- 'Gurudas Kundu Chaudhari v. Hemendra Kumar Roy (A)' extracted above, My conclusion is that defendants 2 to 4 could not be viewed as trespassers from the time of their lease. It is only after the title of the plaintiffs to the suit lands has been accepted, that their possession should beregarded as wrongful, that is, after 25-5-1947, and they will be liable to pay mesne profits from that date. This was at the fag-end of the fasli and there is no evidence to show that any profits were derived by these defendants after that period from the land.
Further, it does not appear that the appellants had any notice of the recognition of the title of the plaintiffs. So far as the record goes it is only after the suit notice was issued that these appellants came to know about it. Thus the appellants arenot liable to pay any mesne profits to the plaintiffs as they have already paid to thefirst defendant. The plaintiffs will get from the 1st defendant the rent which he received from the defendants 2 to 4 . Te decree will be modified accordingly.
(15) The second point for decision in this appeal is whether the decree for costs against the appellants, as well as as the 1st defendant is correct. In this appeal it is argued by Mr. Rathnam for the appellants that they are not liable for costs because they were let int possession as lessees by the 1st defendant. There is no substance in this contention. It is true that they were the lessees under the 1st defendant, but in spite of the fist defendant having recognised the title of the plaintiffs, the appellants, would not allow the plaintiffs to take peaceful possession of suit lands. It is recited in paragraph 4 of the plaint that the efforts to obtain peacefull possession of the said extent of land from second defendant failed even after the expiry of lease on 30-6-1947. This statement is not contradicted in the written statements. On the other hand the appellants disputed the right and title of the plaintiffs to the lands in question. They also asserted their right to continue in possession of the lands.
Thus the appellants did not admit the claim of the plaintiffs to the suit lands even after the filing of the suit. On their written statement, issues had to be raised, namely,
'whether the plaintiffs are entitled to the suit property and whether they have been in possession of the same within 12 years prior to the suit', and 'whether the defendants are entitled tobe in possession of the land'.
(16) Thus the suit was contested by defendants 2 to 4 even on the question of title of the plaintiffs to the suit lands. they also set up their right to continuein possession of this property. It is the attitude of the defendants 2 to 4, that was responsible for the plaintiffs filing the suit for recovery of possession of the suit property and alos for mesne profits, and they had to prove their case even in respect of their title to the suit properties. The appellants are, therefore, liable to pay costs to the plaintiffs in respect of the relief for possession of the properties. No doubt, they are not liable to pay costs of the suit lands as regards the mesne profits. As I have alredy stated, they cannot be called upon to pay mesne profits. So they are liable to pay proportionate costs in the trial Court. The decree will be modified to that extent so far as the appellants are concerned.
(17) As regards the first defendant, there can be no decree for costs as against him for this reason: In February 1947 itself a communication was sent to the plaintiffs recognising their title to the suit property. In the written statement the 1st defendant admitted the right and title of the plaintiffs to the properties and said that he had no objection to possession being given to them. As already remarked, it was only the attitude of the defendants 2 to 4 that resulted in the filing of the suit for recovery of possession. The 1st defendant is, therefore, not liable to pay any costs with regard to the claim for possession. The decree for costs against this defendant is set aside and the costs payable to the plaintiffs will be paid only by the appellants. In this Court each party will bear his or their own costs as they have succeeded in part and failed in part.
(18) Order accordingly.