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Maharaja Vizianagram Vs. Alam Shah Khan and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in16Ind.Cas.126
AppellantMaharaja Vizianagram
RespondentAlam Shah Khan and ors.
Excerpt:
mesne profits - principle for assessment. - .....in the present case is that there was no possession of the plaintiff when the defendant's trespass began, the land in. question being alluvial land, newly thrown tip by the action of the river karamnasa. the courts below have found that the plaintiff's possession, but for the defendant's trespass, would have been actual cultivatory possession. i do not think this finding can now be disturbed, and i hold that it puts the plaintiff practically in the same position as he would have occupied if it had been proved that he was in cultivatory possession when the defendant's trespass began. the finding is that the profits which the plaintiff decree-holder would have made out of this land, but for the defendant's trespass, would have been the value of the crops less the expenses of.....
Judgment:

Piggott, J.

1. This is a judgment-debtor's appeal in an execution case, the matter in issue being the amount which has been awarded to the decree holder as mesne profits. There is a plea in the memorandum of appeal regarding the extent of the area in respect of which mesne profits have been calculated. This has not been pressed and seems to be precluded by the findings of fact of the Courts below. There remains the question of the principle on which mesne profits have been calculated. The Courts below have assessed the damages on the value of the Crops less a reasonable allowance for expenses of cultivation. It is admitted that the determining factor in a question of this sort is ordinarily the nature of the plaintiff's possession before he was dispossessed, or the unlawful possession of the defendant began. The use which the defendant while in possession as a trespasser actually made of the land is not a determining factor in the case. The question is what would the plaintiff have made out of it but for the defendant's unlawful trespass. None of the rulings to which I have been referred to argument contain anything inconsistent with these principles; on the contrary they affirm them. The peculiarity in the present case is that there was no possession of the plaintiff when the defendant's trespass began, the land in. question being alluvial land, newly thrown tip by the action of the river Karamnasa. The Courts below have found that the plaintiff's possession, but for the defendant's trespass, would have been actual cultivatory possession. I do not think this finding can now be disturbed, and I hold that it puts the plaintiff practically in the same position as he would have occupied if it had been proved that he was in cultivatory possession when the defendant's trespass began. The finding is that the profits which the plaintiff decree-holder would have made out of this land, but for the defendant's trespass, would have been the value of the crops less the expenses of cultivation. Accepting that finding, dismiss this appeal with costs.


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