1. The defendants were in possession of the mittah of Sundamangalam for the faslis 1293 to 1298 as purchasers in a sale made under the Revenue Recovery Act. It was ultimately held in a suit brought by the plaintiffs that the sale was irregular, and they were reinstated in the mittah as part-proprietors thereof. They now sue for their share of the mesne profits derived while the defendants were in possession.
2. The Subordinate Judge found that they were entitled to recover the same, but, on taking accounts, it was found that defendants had realized no net profits, their expenses having exceeded their receipts, and plaintiffs' claim was therefore dismissed.
3. Plaintiffs appeal on two main grounds. The first is a point of law, that defendants were in the position of trespassers and wrong-doers, and were, therefore, liable to account to plaintiffs for such loss as they sustained by being kept out of possession, and the question was not what amount of profits the defendants had actually realized, but what they might and ought to have realized. The learned Advocate-General, in support of the plaintiffs' contention first referred to Mayne On Damages (page 417) for the authority that an 'action for mesne profits is in origin an action of trespass brought after a; judgment in ejectment to recover damages for the previous occupation of the land.' And he then referred to several decided cases Byjnath Pershad v. Badhoo Singh 10 W.R. 486; Hurruck Lall Shaha v. Sreenibash Karmottar 15 W.R. 428; Ghoogly Sahoo v. Chundee Pershad Misser 21 W.R. 246; Tiluck Chand v. Soudamini Dasi I.L.R. 4 Cal. 566; Brojendro Coomar Roy v. Madhub Chunder Ghose I.L.R. 8 Cal. 343 and Shitab Dei v. Ajudhia Prasad I.L.R. 10 All. 13 where it has been held that the possession of a party who had no right to possession was the possession of a wrong-doer, and that the party entitled to the possession was entitled to recover as mesne profits all loss sustained by him by being kept out of -possession, whether or not the party in possession had himself derived profits. But we are referred, on the other hand, to a late ruling of the Privy Council where a different view of the matter is taken Dakshina Mohun Roy Chowdhry v. Saroda Mohun Roy Chowdhry L.R. 20 Ind. App. 160 In that case it was held that the party in possession was in bond fide possession, because he was in possession under a decree of Court, and, until that decree was reversed, he was in rightful possession. In this case the defendants' possession was, obtained from the Revenue authorities and it was confirmed by a decree of the Salem District Court. They were, therefore, in rightful possession until that decree was reversed, as it was by this Court on appeal, not however on the merits, but on a technical irregularity in the sale. Their Lordships then lay down this rule: 'Of course he is bound to account for mesne profits, for all rents and profits which he has received or which without wilful default he might have received. But if owing to; circumstances beyond his control, and still more if, in consequence of some wrongful conduct on the part of his opponent, he has received less than what he has had to pay for the preservation of the estate, it would seem to be in accordance with justice, equity and good conscience, there being no specific, rule to the contrary, that he should recover the difference on the final adjustment of accounts.' This is a clear exposition of the law applicable to this case, and the question, therefore, is not what damages are plaintiffs entitled to, but whether the defendants have conducted themselves properly in their stewardship. That is the second main ground of the appeal. It is contended that as regards collections the defendants were negligent, and as regards expenses were extravagant. Nothing has been urged to convince us that the Subordinate Judge was wrong in his conclusion that the defendants used all due diligence to collect the rents. His reasons are stated in paragraphs 14 to 16 of his judgment, and we concur in them. The defendants were Chettis who had paid a large sum for the mittah, and it stands to reason that, for their own benefit, they would have done their best to get every penny they could out of the ryots, and if they did not get more it was due to the obstruction caused by the plaintiffs themselves, who, it is said, instigated the tenants by various means to resist the defendants and put difficulties in their way. (Vide the evidence of the second defendant as defence sixth witness and of the defence seventh witness, one of the mittahdars.) Moreover it would appear that the collections made by the plaintiffs since they have been in possession do not on an average nearly come up to those made by the defendants. The defendants admit a sum of Rs. 32,000 odd as their collections for the six years they were in occupation, and the correctness of this sum has not been seriously impugned, but it seems that during the three years the plaintiff's have regained possession only Rs. 8,000 have been collected (see second defendant's evidence), which is on an average only half the amount that was collected by the defendants per annum, and this is a favourable estimate, for plaintiffs' own twelfth witness says the plaintiffs' half share of the collections for the three years has been only Rs. 3,200, making a total collection of only Rs. 6,400 in three years as compared with the defendants' collection of Rs. 32,000 in six years. So that there is no ground whatever for holding that the defendants were remiss in gathering in the rents. As regards the expenses, objection is chiefly taken to the law charges which defendants put down at Rs. 6,208-9-8. The Subordinate Judge, disallowing certain items, reduced the claim by some Rs. 1,500 to Rs. 4,725-15-10. We have no reason to consider the amount allowed to be excessive. The defendants were bound to exchange pattahs and muchilkas with the tenants before they could recover their rents, and it was owing to the contumaciousness of the tenants, instigated in some instances by the plaintiffs, that these expenses in litigation were incurred. Considering that the cases went to three Courts--the Revenue Court, the District Court and the High Court--the amount allowed as proved to have been spent was not unreasonable. Whether they were suits rightly brought or wrongly brought it is now impossible to decide, for in the second appeal to the High Court they were thrown out on the simple ground that the defendants had been held in the other suit not to be the landlords. There is nothing to show that the defendants were not justified in bringing these suits, and it is highly probable that if they had not brought them, they would not have collected as much as they did, and then the plaintiffs would have turned round and charged them, and perhaps rightly charged them, with wilful default. The charges incurred for establishments were also objected to, but they were pretty much the same as had hitherto been incurred, and were found to be reasonable and necessary. We therefore disallow the appeal on the merits also.
4. A plea of bar by limitation to the plaintiffs' suit was overruled by the lower Court, but was again urged in this Court. We agree with the Subordinate Judge that the decision of the point in question, namely the year of age at which first plaintiff was to be considered as having attained his majority, is governed by the case cited, Rudra Prokash Misser v. Bhola Nath Mukherjee I.L.R. 12 Cal. 612 and that there was, therefore, no bar to his suit. The result, however, is that the appeal fails and it is dismissed with costs.