Krishnaswami Nayudu, J.
1. This appeal arises out or proceedings instituted for enquiring into the mesne profits in pursuance of a decree for possessiongranted in favour of the plaintiffs against defendants 1 to 3. The title to the suit property was in dispute between the plaintiff and defendants 1 to 3; and the suit property was leased to tile fourth defendant under Ex. B. 1 dated 26-2-1944. Subsequently on 19-7-1949 the plaintiff was declared entitled to the suit property.
The title in favour of the plaintiff having bee n upheld a decree for possession was passed against defendants l to 3; but the person who was in actual possession was the fourth defendant, the present appellant. In the application for ascertaining the mesne profits the plaintiff claimed mesne profits from all the defendants, viz., defendants 1 to 4.
The fourth defendant's contention is that in so far as he is concerned he was put in possession by defendants 1 to 3, that he has paid the rents to them, that he is not liable and that the right of the plaintiffs to recover could therefore be only against defendants 1 to 3. The Courts below, however, rejected that contention, and held that all the defendants are liable.
It is urged that this view is wrong especially in view of the decision of the Privy Council in Gurudas Kundu v. Hemendra Kumar Roy, ILR 57 Cal 1 : AIR 1939 PC 300 where a person in the position of the fourth defendant was held not to be a trespasser and not liable for mesne profits of the property, the persons who are liable being those, who put him in possession and whose title was eventually found against.
The Privy Council case is referred to in the judgment of Chandra Reddy J. in Roman Catholic Mission Depressed Tenants Cooperative Society v. Nayudu Kotayya : AIR1955AP36 . The liability of a person in the position of the fourth defendant could not therefore be as a trespasser, he having paid the rents to the persons who put him in possession; and even the persons, who put him in possession and who held the property until their title was found against and in favour of the present plaintiffs, could not be treated as trespassers.
2. There is no dispute, however, as regards the quantum of profits actually paid by the fourth defendant; and there cannot be any liability on the part of the fourth defendant, if it is shown that he has paid the rents to defendants 1 to 3 in pursuance and as per the terms of Ex. B. 1.
The lower appellate Court found that except the filing of Ex. B.2 there is no evidence to show that the fourth defendant had discharged his liability under the lease deed Ex. B-1 and that the recital in Ex. B.2 cannot be taken in support of the fourth defendant's contention that the rents have been paid to defendants 1 to 3. Ex. B.2 is a deed of surrender, which the fourth defendant executed in favour of defendants 1 to 3 on 6-3-1950 and which conclusively proves that the outstanding questions as to rents and deposit have been settled and that the fourth defendant was repaid as per the particulars in Ex. B.2, the sum of Rs. 3000 received as deposit.
There is no need for further evidence as the payment is not contested by defendants 1 to 3. So long as defendants 1 to 3 do not deny the statement of the fourth defendant that he has paid rents and surrendered the property, the truth or otherwise of the fourth defendant's statement cannot be questioned, and if there is any doubt as to the payment by the fourth defendant, Ex. B.2 sets at rest the same. I am satisfied that there can be no liability on the part of the fourth defendant in the circumstances. The appeal is allowed with costs. No leave.