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Sri Rajah Bommadevara Venkatarayulu Naidu Bahadur Zamindar Garu Vs. Kopalle Raghunadha Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1940Mad913; (1940)2MLJ611
AppellantSri Rajah Bommadevara Venkatarayulu Naidu Bahadur Zamindar Garu
RespondentKopalle Raghunadha Rao and ors.
Cases ReferredDoe v. Harlow
Excerpt:
- - and if a liability arises only by reason of the abetment of a tort or the taking part in a tort it must be established by some kind of evidence just like any other fact and there is no presumption which can be availed of in this case by the plaintiffs-respondents......defendant. the evidence is absolutely silent as to any part taken by the third defendant in the dispossession of the plaintiffs. all that is said therein is that the third defendant granted a patta in respect of the properties in favour of defendants 1 and 2. now can the mere grant of a patta by the third defendant to defendants 1 and 2 taken along with the subsequent actual dispossession by defendants 1 and 2 be regarded as a sufficient basis for coming to the conclusion that the dispossession of the plaintiffs was dispossession by the third defendant acting jointly with defendants 1 and 2; or to put it in other words could it be said that the third defendant took an active part in the dispossession of the plaintiffs? no doubt ordinarily a liability to pay mesne profits goes with the.....
Judgment:

Pandrang Row, J.

1. This appeal has been preferred under rather peculiar circumstances. There was a suit instituted in 1930 (O.S. No. 9 of 1930) on the file of the District Court of Kistna which was subsequently transferred to the Subordinate Judge's Court of Masulipatam for disposal in which the plaintiffs four in number sued for a declaration of their right to certain property as against the defendants five in number and also for recovery of possession thereof from defendants 1, 2, 4 and 5 in case the Court found that the plaintiffs were not in possession and also for mesne profits as against all the five defendants. The third defendant was the zamindar under whom the plaintiffs claimed to hold the properties as part of their holding. Defendants 1 and 2 obtained a patta from the third defendant in respect of the plaint property and they were found to have been in possession of the property along with their sub-tenants defendants 4 and 5. The suit was not resisted by the third defendant who allowed it to proceed ex parte. The judgment in the suit was pronounced on the 22nd November, 1932. The only question that was really decided therein was that the plaintiffs had title to the suit property and that defendants 1 and 2 had none. Then followed the usual direction that there would be a decree as prayed for by the plaintiffs with costs. The decree that was actually drawn up and dated 22nd November, 1932, said nothing as to who should pay the mesne profits to the plaintiff though a direction was given for an enquiry being held as to the amount of mesne profits during a certain period mentioned therein. Though in the earlier part of the decree it was only defendants 1, 2, 4 and 5 that were directed to put the plaintiffs in possession of the property nevertheless in the later portion of the decree relating to the enquiry about mesne profits there was a reference to the relinquishment of possession by defendants 1 to 5. The inclusion of the third defendant in this part of the decree was objected to by the third defendant in his petition dated 6th November, 1936, that is to say, nearly four years afterwards. He applied that instead of the words defendants 1 to 5 found in this part of the decree the words defendants 1, 2, 4 and 5 should be substituted and this application was allowed by the lower Court in its order dated 26th November, 1936, but at the same time that order made another amendment in the decree which had the result of making the third defendant also liable for the mesne profits along with the other four defendants. In other words for the first time by this amendment made by the Court either suo motu or at the instance of the plaintiffs in the suit a liability in respect of mesne profits was fixed upon the third defendant, and it is from this amended decree making him liable for mesne profits that the present appeal has been preferred. A Civil Revision Petition has also been filed apparently in accordance with the usual practice of observing abundant caution. The question for determination in this appeal seems to be comparatively simple, namely, whether there is any basis for making the third defendant liable for mesne profits. No doubt he allowed the suit to proceed ex parte but that does hot absolve the plaintiffs from the necessity of adducing some, prima facie evidence which would be sufficient in law to establish a liability in respect of mesne profits on the third defendant. The evidence is absolutely silent as to any part taken by the third defendant in the dispossession of the plaintiffs. All that is said therein is that the third defendant granted a patta in respect of the properties in favour of defendants 1 and 2. Now can the mere grant of a patta by the third defendant to defendants 1 and 2 taken along with the subsequent actual dispossession by defendants 1 and 2 be regarded as a sufficient basis for coming to the conclusion that the dispossession of the plaintiffs was dispossession by the third defendant acting jointly with defendants 1 and 2; or to put it in other words could it be said that the third defendant took an active part in the dispossession of the plaintiffs? No doubt ordinarily a liability to pay mesne profits goes with the actual possession of the land or in other words it is the person in wrongful possession who is generally sought to be made liable for mesne profits, but it does not follow that one who is not in actual wrongful possession cannot be made liable, for, if the dispossession of the plaintiffs which is the basis of their claim for mesne profits is one in which a person who did not actually take possession or continue in possession participated, or in other words if the dispossession can be regarded as a joint act of several persons every person who takes part in. such dispossession would be liable for mesne profits even though the actual profits were received only by some of the persons who took part in the dispossession. They would in such circumstances be regarded as joint tort-feasors. But we are not aware of its having been decided in any case that the mere grant of a patta or a lease by itself is sufficient to constitute the grantor of the patta a joint tort-feasor in respect of any tort that the lessee or the pattadar may think of committing later on. Such a contention is in our opinion opposed to all principles and really finds no support in any of the decisions that have been quoted to us on behalf of the plaintiffs-respondents. The case which gives them the most assistance is the one reported in Mudun Mohun Singh v. Ram Doss Chuckerbutty (1880) 6 Cal. L.R. 357. But even in that case there was an actual finding that all the persons who were sought to be made liable for mesne profits had joined together in keeping the plaintiffs out of possession, and because these were the facts reliance was placed on the decision in Doe v. Harlow (1838) 12 Ad. & E. 40 : 113 E.R. 724. Their Lordships of the Privy Council who had to express an opinion as regards Doe v. Harlow (1838) 12 Ad. & E. 40 : 113 E.R. 724 in L.P.E. Pugh v. Ashutosh Sen (1928) 56 M.L.J. 517 : L.R. 56 IndAp 93 : I.L.R. 8 Pat. 516 after stating the facts of that case, namely Doe v. Harlow (1838) 12 Ad. & E. 40 : 113 E.R. 724 pointed out that that case settled no principle at all as the Court merely held in that case that there was evidence on which a jury might properly find that Warren had made himself a party to the tort. It follows therefore that there is no basis in the evidence to support any finding that the third defendant is also liable for mesne profits in this case. As mentioned already the evidence connecting the third defendant with the trespass is really nil. It is not stated in the evidence that either he himself or his servants took part in the trespass. All that is elicited in the evidence is that he had granted a patta. That does not mean that he even encouraged the pattadars defendants 1 and 2 to take possession wrongfully or forcibly. There is no presumption in law of the commission of any wrong, and a tort cannot be presumed. The abetment of a tort being itself a tort it cannot be presumed; and if a liability arises only by reason of the abetment of a tort or the taking part in a tort it must be established by some kind of evidence just like any other fact and there is no presumption which can be availed of in this case by the plaintiffs-respondents. It follows from this that our finding on the only point for determination in this appeal must be in favour of the appellant, namely, that he is not liable for mesne profits.

2. The appeal is therefore allowed and the decree of the lower Court modified by deleting the third defendant from the defendants who are made liable for mesne profits. The appellant will be entitled to his costs of this appeal from the plaintiffs-respondents.


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