P. Janaki Amma, J.
1. The decree-holder in O. S. No. 3.35 of 19SO of the Munsiff's Court. Chengannur sought recovery of possession of a half share in the plaint schedule property in the suit with mesne profits. The suit was filed by her, alleging that the plaint schedule property belonged to her father and on his death devolved upon her and her mother who was the 30th defendant in the suit. Defendants 1 to 9 who are the children of her father's brother were in possession of the property. The decree allowed her a half share in the property with a direction that she would be entitled to such mesne profits as would be decided in the final decree. In the final decree, mesne profits were fixed at Rs. 1,039.22, but no mention was made as to the persona liable. The decree-holder filed execution petition claiming mesne profits against all the defendants. Thereupon defendants 8 and 20 filed objection. They contended among other things that the plaintiff could be allowed to realise only proportionate amounts from each of the defendants or their legal representatives as the case may be. The executing Court held that the decree was binding on all the defendants and that it could not be spelt out that each defendant was liable only to this proportionate share of profits of the property. An appeal was filed by the 31st defendant challenging the above order. The Additional District Judge. Mavelikkara, allowed the appeal. Since there was no sufficient evidence as to the portion of the property which was in the possession of the appellant or the income thereof, the Court remanded the case for fresh disposal after allowing the appellant to let in evidence regarding the income of the property in his possession. The Second Appeal is preferred against the above order.
2. The only point involved in this appeal is whether it is open to the judgment-debtors against whom a decree has been passed for mesne profits to contend in execution that they would be liable only to proportionate amount falling to the shares of the property in their respective possession.
3. The Additional District Judge, Mavelikkara, in coming to the conclusion referred to above relied on the decision reported in Gurudas v. Kumar Hemendra, AIR 1929 PC 300. That was a case where three persons A, B and C were co-owners of certain property. This property disappeared under the Ganges but reappeared after considerable period of years. When it reappeared the Government took possession and gave the property to tenants. After some time when B moved for possession of the property, it was released to him; but he allowed the tenants to be in possession. A and C brought a suit for declaration of title and recovery of possession of the property and mesne profits. The claim was decreed with costs and mesne profits. The question involved in the case was the terminus a quo, in regard to mesne profits and also whether B was liable to the actual profits that he would have obtained had he been in possession or only the rent from the land left It was held that A and C were entitled to mesne profits up to their re-admission to tbe land and that mesne profits were to be calculated on what B actually received as rent from the land let as he could not with ordinary diligence have received more. There was no question involved as to how a joint decree for mesne profits should be construed.
4. Tbe Question as to how a decree for mesne profits should be passed when there are more than one trespasser came up for consideration in the decision retorted in Sasbi Kantha v. Promode Chandra, AIR 1932 Cal 600, and a Division Bench of the Calcutta High Court held as follows:--
'A decree for mesne profits may be passed jointly and severally against all the trespassers who may have jointly kept the plaintiffs out of possession for any particular period, leaving them to have their respective rights adjusted in a separate suit for contribution. Or the respective liabilities of such trespassers may be ascertained in the plaintiffs' suit against them, and a decree on the basis of such several liabilities may be passed as against the respective trespassers in plaintiffs' favour.'
The decision in AIR 1929 PC 300 was referred to and distinguished. This case was followed in Kalidas v. Satyesh Chandra, AIR 1933 Cal 554, and in Kalidas Rakshit v. Saraswathi Dasi. AIR 1943 Cal 1. In the latter case, the Calcutta High Court explained the scope of the decision in AIR 1929 PC 300 = (56 Ind App 2901 as follows:--
'We hold that the exact scope of the decision in 56 Ind App 290 is that in ordinary cases, that is, where there is no wrongful combination or conspiracy, amongst the defendants who dispossessed or wrongfully kept the plaintiff out, each defendant or each set of defendants as the case may be, is liable for what he received or could by ordinary diligence have received from the defendant or set of defendants immediately below his, where the defendants or the different sets of defendants had set up different grades of interest in the land in suit, and the professed subinfeudation between them is either admitted or proved. For instance, where there was no wrongful combination amongst the wrong doers, if the lands were being possessed by a zamindar through tenure-holders, under tenure-holders, and ryots, and the whole set were made defendants and the possession of all of them was found wrongful, the zamindar would be liable by way of mesne profits for what he had or by ordinary diligence could have received as rent from the tenure-holders of the first degree and the tenure-holders of the first, second and third degrees, etc., would have to be assessed on the same basis, the actual cultivator or ryot being liable on produce basis. This view of ours is confirmed by the observations of the Judicial Committee in 57 Ind App 105 at p. 108 = (AIR 1930 PC 82 at p. 83).'
5. In Secy, of State v. Hiru Mondal, AIR 1935 Cal 752, a number of persons actuated by design or as a result of conspiracy combined together and dispossessed the respondent. It was held that the respondent was entitled to look upon all of them jointly for recovery of mesne profits. The court observed as follows: --
'When a combination of this character exists, the plaintiff is justly entitled to say that it is not for him to find out what exactly is the amount which each of the trespassers has received from the property but that he would make them all jointly liable for the entire amount of profits which they had received or which they might with ordinary diligence have realised from the property'.
In the instant case the decree reads-
'After partition the plaintiff will recover the share with mesne profits from defendants 1 to 9. The quantum of the mesne profits should be decided later.
The parties are to suffer their respective costs in the circumstances of this case.'
It is in pursuance of the above direction that the quantum of mesne profits was ascertained in the final decree and a final decree was passed- It is not open to them to contend in the executing court that they are not liable for mesne profits in respect of the whole property and that they are liable only to the property in their respective possession. Defendants 1 to 9 had no case, during the pendency of the suit, that they would be liable to mesne profits only with regard to the income of the portion of the property in their actual possession. Having omitted to put forward a claim like the above, it is not open to them to put forward such a claim in execution.
6. Reference in this connection may be made to the decision reported in Sudarsan Prasad v. Jadunandan. AIR 1947 Pat 42, where a similar claim was made by some of the judgment-debtors in execution of a decree for possession of the property with mesne profits. The decree was a joint and several one. Mesne profits were ascertained under Order 20 Rule 12. No attempt was made to get the liability fixed severally against the judgment-debtors. The Patna High Court observed that the ascertainment of the mesne profits in respect of each portion would necessitate a further enquiry which under the Civil Procedure Code could not be done by the executing court. In Lokenath v. Dondapani, AIR 1958 Ori 109, the plaintiffs brought a suit for possession of the property with mesne profits against several trespassers. In pursuance of a preliminary decree for possession and mesne profits a final decree was passed to the effect that all the defendants were liable to pay the amount; it was held that it was no longer open to the judgment-debtors to raise the plea that some only of the judgment-debtors were in actual possession and they were alone liable io pay the mesne profits. It is the identical point that is involved in this case.
For the foregoing reasons I allow the Second Appeal. The order of the lower appellate court directing remand of the case would stand set aside and that the decision of the trial court is restored. The appellant is entitled to her costs from the contesting respondent.