1. In this case there is an appeal by the decree-holders, and a cross-appeal by the judgment-debtors, against an order of the Subordinate Judge of Dacca, passed in certain execution-proceedings, and dealing with the assessment of mesne profits, which, under the terms of the original decree, were left to be settled by the subsequent proceedings in execution. Several grounds have been taken in the petition of appeal; but the learned Counsel for the appellants has only pressed one of these grounds upon us; and that is the first ground, which is, that the lower Court has erred in not giving the decree-holders interest on the yearly amounts of wasilat from the end of the years for which such amounts were allowed respectively up to the date on which such wasilat was ascertained. The question whether interest upon the sums allowed as mesne profits for each year, such interest to be calculated from the close of the years in respect of which such sums have been allowed respectively up to the date of instituting the suit in which they were decreed, can be recovered as damages, has been raised in several cases which have, from time to time, come before this Court on appeal. In the case of Protap Chunder Borooah v. Ranee Surnomoyee 14 W.R.151 the law is laid down by Couch, C.J. and the result of the decisions appears to be that such interest may be given by way of damages; in other words, that interest calculated upon yearly rests of rent may be given as an essential portion of the damages, which are recoverable by a person wrongfully kept out of the possession of immoveable property. We think there can be no doubt that this principle has been well settled by a number of cases which have been decided by the Courts in this Presidency; but at the same time it is to be observed that, in the majority of these cases, interest has been treated in the plaint and afterwards in the proceedings, not as an essential portion of the damages, but as interest; and in point of principle no distinction has been drawn between interest before the date of institution and interest after the date of institution. If the subject had been more accurately treated in all cases, the interest allowed upon yearly rests of rent before the institution of the suit or before the making of the decree would have been dealt with as damages, while the interest allowed after institution or after decree would be that interest which is ordinarily given upon an unliquidated claim reduced to a liquidated form, for the time between decree and recovery.
2. The principle which was recognized in the case of Protap Chunder Borooah v. Ranee Surnomoyee 14 W.R. 151 has been recognized and acted upon in America also. We find in Mr. Sedgwick's work on Damages, that interest is commonly allowed in that country by way of punishment, for any illegal conversion or use of another person's property (see p. 470 of the sixth edition). In another passage Mr. Sedgwick says: 'There is considerable conflict and contradiction between the English and American cases; but as a general thing, it may be said that while the tribunals of the former country restrict themselves generally to those cases where an agreement to pay interest can be proved or inferred, the Courts of the United States, on the other hand, have shown themselves more liberally disposed, making the allowance of interest more nearly to depend on the equity of the case, and not requiring either an express or implied promise to sustain the claim' (p. 473). And further on (p. 476) he shows from the decisions that the rule of allowing interest by way of damages in actions of trespass brought for the recovery of property has been adopted almost generally by the tribunals in the States. Even in England there are many cases in which interest, though not recoverable as such, may be recovered as damages for the detention of money; see Mr. Mayne's work on Damages, third edition, pp. 135, 136, 178, and 179. In this country it may well be held to be in accordance with justice, equity, and good conscience to allow interest upon the yearly rents or profits which the person wrongly kept out of the possession of real property would have received at the close of each year, as part of the damages which such person is entitled to recover from the wrong-doer who has prevented him from enjoying those profits from year to year. The principle being then settled and admitted, we have to apply it to the facts of this case now before us. We were at first pressed with the case of Hurro Durga Chowdhrani v. Surut Sundari Debi I.L.R. 4 Cal. 674; S.C. in App. to P.C. ante p. 332. There is, however, an essential difference between that case and the case of Protap Chunder Borooah v. Ranee Surnomoyee 14 W.R. 151. The latter case was a case of regular appeal against an original decree, while the case of Hurro Durga Chowdhrani v. Surut Sundari Debi I.L.R. 4 Cal. 674; S.C. in App. to P.C. ante p. 332 was a case arising out of the execution of a decree. The case now before us is, like the case last mentioned, a case of execution; but in that case no question appears to have been raised or argued as to whether interest before institution was claimed in the original plaint: and this, we think, makes an important difference between that case and the case with which we have to deal. The decree adopting the language of the plaint leaves the 'mesne profits' to be ascertained in the execution-proceedings. If it can be successfully contended that the term 'mesne profits,' unrestricted or unlimited by anything in the context, includes interest on the yearly rents and profits, there is no room for this argument where the context excludes the supposition that the plaintiff intended to claim such interest as part of the damages to which he is entitled. The learned Counsel for the appellants has drawn a distinction in his argument to-day between interest on the mesne profits before the institution of this suit on the 1st of July 1858, and interest on the mesne profits subsequent to the institution of the suit and up to the date on which possession was given in execution of the decree. As to interest on the mesne profits antecedent to the institution of the suit, we were prepared to decide that even if it can be successfully contended that the decree-holders are entitled to have interest on yearly rests of rent as part of the mesne profits, still, because in their original plaint they introduced a figured statement of the amount which they claimed as mesne profits, such figured statement not including interest upon yearly rests, they have precluded themselves from obtaining such interest upon the ordinary principle that a plaintiff cannot obtain by the decree of Court more than he asked in his original plaint. As to the interest on mesne profits after the institution of the suit and up to the date of obtaining possession, we think that, upon the construction of the original decree, the question really must come to this, whether the term 'mesne profits' can be construed to mean and include interest upon yearly rests of rent by way of damages. It is not necessary for us now to express our own opinion upon this question, because it has been concluded by the judgment of the Privy Council of the 8th November 1881, in the case of Hurro Durga Chowdhrani v. Surrut Sundari Debi; ante p. 332 where their Lordships reversed the decision of the learned Judges of this Court I.L.R., 4 Cal., 674, substantially holding that the term 'mesne profits' does not include interest year by year: upon those profits, the loss of which interest, if claimed, might be damages fairly recoverable in the action. The decree-holders' appeal must, therefore, fail.
3. We now turn to the cross-appeal. Four points have been pressed upon us. The first is concerned with the mesne profits in respect of taluk Ram Narain Ghose, No. 360, for seven and-a-half years, being the period from 1253 to 1260 (1846-1853) inclusive. The judgment-debtors produced in respect of these years certain books of account, which have been disbelieved and rejected by the Subordinate Judge. Against the Subordinate Judge's rejection of these account-books no appeal has been preferred. Now, there can be no doubt that, as the judgment-debtors were, as wrong-doers, in possession of this property, it lay upon them to show what were the sums realized by them as rent during the time of their possession. They have produced certain account-books which have been rejected as fabricated, and the Subordinate Judge, in assessing the damages for these seven and-a-half years, has taken the highest amount of the annual stheet for a single year as shown in their accounts; and upon this basis of calculation has allowed mesne profits for the whole seven years and-a-half. It may be observed that, in respect of the period subsequent to these seven and-a-half years, certain account-books produced by one Nurbux, who was the proprietor of the remaining ten-anna share of the same taluk, have been accepted without challenge as the basis of calculation. For the disputed seven and-a-half years Nurbux did produce certain account-books, but as those accounts referred to a period antecedent to that which was within his own knowledge, they have been rejected by the Subordinate Judge. It is contended before us on appeal, that if the Subordinate Judge was prepared to take any portion of the accounts filed by the judgment-debtors and base his calculation of mesne profits thereupon, he was bound to treat these books on the principle applicable to admissions, and take the whole of them together. No doubt, according to the usual rule, a Court is bound to take the whole of an admission together, but a Court is not bound to give equal weight to all portions of it; and we think we cannot say that the Subordinate Judge was in error in the present case in adopting the stheet for a single year as the basis of his calculation, and refusing to accept the stheet shown in the same accounts for the other six years and-a-half. In coming to this decision we are influenced by the peculiar circumstances of the case. A reasonably strong presumption may fairly be made against a person who, having been in the possession of property, and being therefore presumably able to produce the accounts of the collections made by him, has produced accounts wilfully falsified for the purpose of misleading the Court. Having regard to those circumstances, we think that the Subordinate Judge's decision may be supported, and that there is no ground for interfering with the principle upon which he has calculated the mesne profits of the seven and-a-half years--1253 to 1260--in respect of taluk Ram Narain Ghose.
4. The next point which was argued by the learned Counsel for the cross-appellants is in respect of Rs. 486, which have been added by the Subordinate Judge to the Amin's calculation of mesne profits in respect of Manikartak. Now, it is admitted that there is an arithmetical error in the calculation of the Subordinate Judge in respect of this item, and that the true amount ought to be Rs. 424 and not Rs. 486, being the amount of mesne profits for twenty-six-and-a-half years at Rs. 16 per annum. This error must, of course, be corrected. In respect of this item, the Subordinate Judge says: 'The judgment-debtors say that as they were never in possession of the said kismats, they cannot be held liable for the wasilat thereof. It, however, appears from their own talab baki of 1262, that they were in possession of Kismat Manikartak, which was charged with a jama of Rs. 16 per year. Under such a circumstance, I am clearly of opinion., that the decree-holders are entitled to the wasilat of this kismat for the period of dispossession at the rate of Rs. 16 per annum, minus the amount of collection charges, that is Rs. 486.' It has been contended before us, that it lay upon the judgment-creditors to show that the judgment-debtors have, as a matter of fact, collected this sum of Rs. 16 annually. We are unable to accede to this argument. It is shown that a jama of Rs. 16 was payable in respect of this property; and we think that upon the principle to which we have already referred, it lay upon the judgment-debtors to give some explanation or offer some evidence to show that, as a matter of fact, and. for causes over which they had no control, this sum had not been realized by them. They have given them no explanation, have produced no evidence, and we think that, upon the usual presumption to be made against a wrong-doer, the Subordinate Judge was correct in adding this amount.
5. The third point is connected with the mesne profits of taluk Chunder Narain Ghose. It is objected that the Subordinate Judge was wrong in allowing the decree-holders credit for a sum of Rs. 411, which the Civil Court Amin had deducted as being the amount of khasta, or loss, said to have been sustained by the debtors for the years 1253 to 1263. Here also we think that the same principle applies. There is nothing to show that the land was not let to tenants, or that the judgment-debtors were, for reasons over which they had no control, unable to realize the rents; and we think that, as soon as the ordinarily realizable rents were shown to amount to a certain amount, it was for the judgment-debtors to offer some explanation as to the reason why they were unable to collect this amount. No such explanation has been offered, and we think, therefore, that, in respect of this item also, the decree of the Subordinate Judge is correct.
6. The fourth and last point is concerned with the mesne profits of the sowkar or grass mehal in a village called Kamalpur. The argument which has been addressed to us on this point is that there is really no evidence upon which the mesne profits of this mehal for the years 1256 to 1269 inclusive can be calculated. It is said that the deposition of Kasinath is the only evidence as to the mesne profits of this mehal: and that, although Kasinath was able to speak from his personal knowledge as to the years subsequent to 1269 (in respect of the mesne profits of which years the order of the Subordinate Judge is not challenged), yet, as to the years 1256 to 1269, this witness speaks from hearsay merely, and that therefore there is no legal evidence upon which the mesne profits of these years can be calculated. It has, on the other side, been argued that the judgment-creditors having proved that the rent payable in respect of this grass mehal was a certain amount in a certain year, it may reasonably be presumed, under the particular circumstances of this case, and with advertence to the principles already referred to, that the same rent had been realized for the antecedent years. Upon the ordinary presumption of continuance, if the years in dispute were years subsequent to the year in respect of which the evidence has been offered, we might reasonably presume, in the absence of evidence to the contrary, that the same annual rent continued to be paid; but we should have some difficulty in carrying back this presumption to an anterior period. Having, however, heard the whole of the deposition of the witness Kasinath, we think that it can scarcely be said that he speaks from hearsay merely as to the period antecedent to 1270. He says that he saw his father pay a rent of Rs. 215, and the passage in his cross-examination upon which the learned Counsel for the cross-appeal has relied, is to this effect, that he heard from his father that the annual jama was this amount. We think that when the witness said that he had heard that the annual jama was Rs. 215, this may well be taken in connection with his statement that he saw his father pay a rent of Rs. 215; nay, in other words, be taken as explaining an act which he himself saw done. If the hearsay statement stood alone, it certainly could not be treated as proving the antecedent rent; but taking it with the further statement of the witness that he had seen a particular amount paid, we are of opinion that although exceedingly weak, it still is some evidence of the fact that this amount of annual rent was paid before the year 1270; and having regard to the principle to which we have already so often alluded, as the judgment-debtors have not produced their accounts, or rather have produced accounts which have been found to be false and manufactured, we think that we ought not to say that upon this evidence, weak as it is, the Subordinate Judge was not justified in finding as he did in respect of the mesne profits of this mehal. The result is, that the appeal will be dismissed and the cross-appeal also will be dismissed, and each party will bear his own costs.