R.C. Mitter, J.
1. Touzi No. 162 of the Khulna Collectorate comprises among other villages, Mouza Ghona Madardanga and Mouza Rangpore. Plaintiffs 1 to 23, the Mozumdars, hold the said two Mouzas as patnidars and darpatnidars under the proprietors of the said estate. In this appeal we are concerned only with Mouza Ghona Madardanga. The Syedpore Trust estate represented by the Collector of Khulna is the proprietor of Touzi No. 188 of the Khulna Collectorate. Defendant 85, Sarat Chandra Rakshit, whose legal representative is the appellant before us in Appeal No. 27, is the Gantidar of the adjoining Mouza, Mouza Bilpabla, under, the proprietors of the said Touzi No. 188 of the Khulna Collectorate, and Jadu Nath Kaviraj defendant 67 the appellant in Appeal No. 117, is the Dargantidar of a portion of the said Mouza. In 1917 the Mozumdars granted to Saraswati Dassi, the principal respondent in both the appeals, a permanent lease of the larids of Mouza Ghona Madardanga. On 16th April 1919 the Mozumdars instituted the suit to recover possession of two plots of land, the first as part of Mouza Ghona Madardanga and the second as part of Mouza Rangpur. Saraswati Dassi was made pro forma defendant 87, but later on she was transposed and became plaintiff 24. The Collector of Khulna who is the agent of the Syedpore Trust estate was made pro forma defendant 86 and the other principal defendants to the suit were the tenants in occupation either of plot No. 1 or plot No. 2 in suit. In that suit there was an allegation that the principal defendants had dispossessed the plaintiffs in Jaistha 1325 B.S. (June 1918) and a claim for mesne profits against the principal defendants was also made. The learned Additional Subordinate Judge by his judgment and decree dated 20th May 1925 holding that parts of both the plots in suit appertained to the patni and darpatni of the Mozumdars gave the plaintiffs a decree for possession and mesne profits. He assessed mesne profits at Rs. 576 from the date of the dispossession till the institution of the suit and directed the principal defendants to pay the same to the plaintiffs. He declared that the plaintiffs were also entitled to get mesne profits from the date of the institution of the suit till recovery of possession but he did not give an express direction in terms of Order 20, Rule 12, Sub-rule (1), Clause (c), Civil P.C. This decree of the learned Additional Subordinate Judge was affirmed in appeal by this Court by a judgment dated 3rd December 1928. Thereafter, the plaintiffs took possession of the two decretal lands between 30th March and 8th April 1931. Although, it was stated in the plaint that plot No. 1 in suit comprised an area of 731 bighas, it was found at the time of the delivery of possession that area decreed in favour of the plaintiffs in Mouza Ghona Madardanga was only 581 bighas.
2. On 20th July 1931, plaintiff 24 made an application to assess mesne profits of the said area of 581 bighas from the date of the institution of the suit (16th April 1919) till the delivery of possession (8th April 1981) and prayed for a joint decree against defendants 85, 67 and the tenants who held the said area immediately under defendant 67 and mediately under defendant 85. A commissioner was appointed to ascertain the amount. He assessed the mesne profits on produce basis and reported that the amount ought to be Rs. 82,780-8-0. On an objection by the defendants the learned Subordinate Judge reduced the amount to Rs. 70,114-0-0 and by decree dated 29th November 1935 directed all the principal defendants, save and except Nos. 15 to 18, 60, 61 and 86 (who were not concerned with the lands of Mouza Ghona Madardanga) to pay the same in instalments. The decree, as it stands, is a joint and several decree against the said defendants for the whole sum. Against the said decree the two appeals before us are directed, one by defendant 85, the legal representative of Sarat Rakshit, and the other by defendant 67, Jadu Nath Kabiraj. The points raised by the two appellants are as follows : (i) the present application for assessing mesne profits is not maintainable, (ii) that there can in law be no decree for mesne profits against them inasmuch as the plaintiffs have released the agent of the Syedpore Trust from liability to pay mesne profits, (iii) that mesne profits ought to be decreed against defendants 85 and 67 not on produce basis but on the basis of the rent that they had respectively received from their tenants, (iv) that no profits earned by reason of the improvements made by those defendants can be taken into account in assessing mesne profits, (v) that the reclaimed are has been taken at a larger figure than the evidence justifies, (vi) that the quantity and price of the produce has been assessed at a high figure, (vii) no account should have been taken of weeds such as Nal, Hogul and Malia and (viii) interest has been allowed at a high rate.
3. Saraswati Dassi has filed a memorandum of cross objections in which she challenges the correctness of the calculation of interest. We proceed to deal with the points raised in the appeals in the order formulated above : The sole basis of the argument on the maintainability of the application for mesne profits is that no express direction in terms of Order 20, Rule 12, Sub-rule (1) Clause (c), Civil P.C., has been given in the preliminary decree dated 20th May 1925 as affirmed by this Court. The contention of the learned advocates for the appellants has been advanced on broad and general terms, namely that in the absence of such express direction mesne profits cannot be assessed in the suit, but if the successful plaintiff desires to have mesne profits for that period he must institute a new suit and get a decree if his claim is not then barred by time. If this contention be upheld, in this case plaintiff 24 would get very little, for, if she had instituted a new suit for mesne profits even on the day when she filed her application for assessment of mesne profits a good portion of her claim would have been successfully met by the plea of limitation. On the facts of this case, it is not necessary to determine the question in the broad form in which it has been debated but at the same time it is necessary to clarify the position to some extent.
4. Although the cause of action for a suit for recovery of possession is quite distinct from the cause of action for mesne profits it is permissible to combine the two causes of action in the same suit (Order 2, Rule 4). It is also permissible in such a composite suit to pray for recovery of mesne profits not only up to the date of the institution of the suit but for mesne profits that would accrue due during the pendency of the suit and there, after till possession is restored by or recovered from the wrong-doer or till three years of the decree, whichever is earlier. Under the Civil Procedure Code of 1882, assessment for mesne profits for this subsequent period had to be made in a different proceeding, namely in the execution proceedings, and therefore by a Court different from the Court that had tried the suit, namely by the execution Court. The position under the Civil Procedure Code of 1908 is different. The same Court that tried the composite suit for possession and mesne profits assesses the mesne profits for this subsequent period at a later stage of the suit itself. This is a matter of fundamental importance. Under the older procedure if no express direction for assessment of future mesne profits had been given in the decree itself, the successful plaintiff was in a helpless position, for, as the assessment of such mesne profits had to be made in execution proceedings, the execution Court was bound to follow the decree and could not in law supply any omission in the decree, obvious or accidental. The position is different under the procedure introduced by the Civil Procedure Code of 1908, for the Cotirt assessing the mesne profits being the same Court which had passed the decree can remedy under the powers given by Section 152, Civil P.C., accidental slips and omissions in the decree and under Section 151 make such orders as may be necessary for the furtherance of justice. In the light of these principles, the facts of the case before us have to be examined.
5. In the plaint the plaintiffs claimed in express terms mesne profits from the date of dispossession till recovery of possession, that is, (1) mesne profits anterior to the suit, (2) mesne profits pendente lite and (3) mesne profits thereafter till recovery of possession. The learned Additional Subordinate Judge decreed the claim for possession by his judgment dated 20th May 1925. In that judgment he observed thus:
As the principal defendants, other than defendants 15 to 18, 60 and 61 kept the plaintiffs out of possession of the disputed lands wrongfully, the plainf tiffs are entitled to get mesne profits from them for the period of dispossession, that is Jaistha 1325 to the date of recovery of possession. But at present there will be a decree for mesne profits to the date of the institution of the suit.
6. The decree which was drawn up was exactly in the same terms with the addition that the amount of mesne profits up to the date of the institution which was determined in accordance with the measure indicated in that judgment was fixed at Rs. 576. There was no express direction in the decree in terms of Order 20, Rule 12, Sub-rule (1) Clause (c). Defendants 15 to 18, 60 and 61 had no concern with plot 1 of the suit. This judgment and decree of the learned Additional Subordinate Judge was confirmed on appeal. It is quite clear from this judgment and decree that the plaintiffs' claim for mesne profits pendente lite and thereafter as made in the plaint was not rejected. On the other hand, their right to the same was expressly declared. The Court exercised its discretion under Order 20 Rule 12 Sub-rule (1) Clause (b) and instead of leaving the matter of assessment of mesne profits up to the date of the institution of the suit to a later proceeding in the suit, assessed the same at that time. That it reserved the power to assess mesne profits pendente lite and thereafter till restoration of possession to the plaintiffs at a later stage is made manifest by the use of the phrase 'at present' both in the judgment and the decree. The omission of an express direction in terms of Order 20 Rule 12 Sub-rule (1) Clause (c) in that decree was therefore an accidental one, and could be supplied at any time by the Court. The learned Additional Subordinate Judge by his order dated 22nd June 1932 passed in the suit has in effect supplied the said omission by appointing at the instance of plaintiff 24 a commissioner and directing the commissioner to ascertain mesne profits pendente lite till 8th April 1931, when possession was taken by the plaintiffs in execution of the decree for possession. This order was passed after this Court had on appeal confirmed his decree. No doubt an application under Section 152, Civil P.C., to supply the said omission should have been made to this Court, for on the confirmation of the decree of the learned Additional Subordinate Judge by this Court the only decree in existence in the eye of law was the decree of this Court, but this technical defect is of no moment for we can supply an omission which as we have pointed out is an obvious one. This is one special aspect of the case which we have before us.
7. The other special aspect is that the said decree of the learned Additional Subordinate Judge as confirmed by this Court was a composite decree. It was a final decree in respect of the relief for possession. It was a final decree in respect of mesne profits up to the date of the institution of the suit, but it was a preliminary decree for mesne profits for the period commencing from the date of the institution of the suit till recovery of possession. The last part of the decree conforms to the terms of a preliminary decree, for the right of the plaintiffs is declared but the assessment of the actual amount for that period is left over to a later stage of the suit. In these circumstances we do not see why the final decree for mesne profits for that period which has now been passed would be a bad one - one without jurisdiction. The omission in the decree dated 20th May 1925 to give in express terms a direction for assessment of mesne profits, in our judgment, is at most a mere irregularity. In view of these two special aspects of this case, it is not necessary for us to consider the correctness of the decision in Gulusam Bibi v. Ahmadsa Rowther ('19) 6 A.I.R. 1919 Mad. 998 but we may state that we are not prepared, as at present advised, to follow the same. The first point urged by the appellant is accordingly overruled.
8. The second contention urged by the learned advocates for the appellants proceeds upon a misconception of fact. The Collector of Khulna representing the Syedpore Trust was made a pro forma defendant. No relief was claimed against him by the plaintiffs. He no doubt supported the principal defendants in the suit. But still the plaintiffs did not amend their plaint and make him a principal defendant. The decree dated 20th May 1925 as confirmed in appeal declaring the plaintiffs right to mesne profits pendente lite and thereafter was against a group of principal defendants. There was thus no decree against the Collector. Hence no question of the plaintiffs releasing him from his liability to pay mesne profits for that period arises. The second point urged by the appellants is also overruled.
9. The third point urged by the appellants raises a substantial question. The facts bearing on the point which are admitted by the parties are these. The proprietors of Bilpabla are the trustees of the Syedpore Trust Estate represented in the suit by the Collector of Khulna. Defendant 85 Sarat Rakshit was, and his son the appellant Kalidas is, the Gantidar (permanent tenure holder) of the said village under the said trustees. Defendant 67 Jadu Kabiraj is the dargantidar (tenure holder of the second degree) of a portion of that mouza under Sarat Rakshit. Principal defendants 1 to 14, 19 to 59, 62 to 66 and 68 to 84 are the persons who were in actual occupation of portions of plot 1 in suit holding as tenants mediately under Sarat Rakshit and immediately under Jadu Kabiraj. That Jadu Kabiraj had dispossessed the plaintiffs with the help of his men, his tenant i.e., the defendants we have mentioned above, admits of no doubt but the controversy between the parties is whether Sarat Rakshit combined with Jadu and his men, that is whether there was combination between them, or as has been put, a conspiracy between them as a result of which the plaintiffs were dispossessed and kept out of possession. We would first take up this controversial point.
10. Plot No. 1 was mostly waste even in the year 1917. But a good area on its eastern and southern parts was fit for cultivation and had been parceled out in comparatively small blocks and was being cultivated by raiyats from long before 1917. The case of the plaintiffs is, and has all along been, that those portions were being cultivated by the raiyats holding under one Presh Joardar to whom the predecessors of plaintiffs, 1 to 23 had granted settlement of the whole of plot - No. 1, on the footing that it appertained to Mouza Ghona Madardanga. Paresh was let into possession by them in 1893 and that fact is evidenced by an Amalnama granted to him in that year. He reclaimed portions of the said plot through his tenants. On 12th February 1897 a formal lease was executed in favour of Paresh. Paresh fell iyto arrears with the result that a decree for rent was obtained against him and in execution thereof the plaintiffs 1 to 23 purchased Paresh's tenure on 25th February 1916. Thereafter they settled the said land again with plaintiff 24 in tenure right on 20th February 1917. These facts have been proved by documentary evidence. Their further case is that plaintiff 24 was in possession all along till she was dispossessed by the contesting defendants in June 1918. The case of Sarat Rakshit and Jadu Kabiraj as stated in paras. 26 and 8 of their respective written statements is that ever since 1865 the lands were being possessed by different persons holding interest in Bilpabla. This case they unsuccessfully attempted to substantiate in the suit. Keeping in view the pleadingte the following facts are material. In 1915, Sarat Rakshit purchased the ganti interest of Bilpabla from the Mitters. Jadu Kabiraj held a portion of that mouza in darganti interest from before. The learned Additional Subordinate Judge has found that though Sarat was the gantidar and Jadu the dargantidar of Bilpabla the land which is the subject of these appeals never appertained to Bilpabla and the case of the defendants regarding its possession is false and that Sarat, Jadu and their tenants first came upon it in June 1918 as alleged by the plaintiffs.
11. In 1917 Sarat started a boundary dispute case under the Survey Act (5 of 1875) and he conducted the case. He led documentary evidence to support his case that he was in actual possession through Jadu and his tenants of the cultivated portion. These documents were found unreliable by the Assistant Superintendent of Survey. He, however, put forward a map said to have been prepared by a Deputy Collector, Mr. Brahma Nath Sen, which showed the disputed plot as appertaining to Bilpabla. On the basis of this map he induced the Assistant Superintendent of Survey to find that the lands in suit were in Bilpabla. That officer could not in law decide question of title and could only demarcate the boundary on the basis of possession. He recognized that fact but as he could not rely on the evidence of actual possession produced by the parties he presumed possession in favour of Sarat from his title. He accordingly demarcated the boundary according to Sarat's contention. That order dated 28th June 1918, (Ex. 16) had the effect of a decree till set aside in proper time and by a proper Court. Immediately thereafter Jadu with his men appeared on the scene and forcibly dispossessed the persons who were then cultivating the lands as tenants under plaintiff 24.
12. In this suit a previous deposition of Mr. Brahma Nath Sen who was dead at the time was exhibited. In that deposition he repudiated the map which was fathered on him in the demarcation proceedings, and which was the basis of the order passed therein. These facts in our judgment unmistakably point to the fact that in the matter of dispossession of the plaintiffs there was a concerted plan and in pursuance thereto Sarat did his part, namely binding the hands of the plaintiffs by initiating the boundary dispute case and getting an order in his favour by exhibiting documents which have been found by the Additional Subordinate Judge to be spurious ones and Jadu did the rest. The oral evidence on the point is conflicting but we give preference to that adduced by the plaintiffs and find that Sarat, Jadu and the tenants of Jadu had acted in concert and had wrongfully combined in dispossessing the plaintiffs and in keeping them out. On this footing the contention of Kalidas Rakshit that the proper measure of mesne profits against him is the amount of rent he had received for the land from Jadu and the contention of Jadu that he is liable only for the rents that he had received from his tenants has to be considered. The respective advocates of the contesting parties have taken up extreme positions.
13. The learned advocate for the appellant Kalidas, and Jadu's advocate supports him, has contended that in the case of trespassers setting up different grades of interest in the disputed land each would be liable only to the extent of the rent or profit he had received from the trespasser holding under him as tenant, and that this is the rule in every case of dispossession, whether there was conspiracy or combination among them or not.
14. The learned advocate for plaintiff 24 contends on the other hand that even when there is no such conspiracy or combination amongst those classes of trespassers, each one of them would be jointly and severally liable for the whole amount that may be assessed as mesne profits. For supporting his position the learned advocate for the appellant relies principally upon Gurudas Kundu v. Hemendra Kumar Roy ('29) 16 A.I.R. 1929 P.C. 300 and H.K. Gray v. Bhagu Mian . He contends that the observations made by Mookerjee and Teunon JJ. in Ramratan Kapali v. Aswini Kumar Dutt ('10) 37 Cal. 559 to the effect that where tenure-holders of different degrees had wrongfully combined to keep the rightful owner out of possession they would be jointly and severally liable for mesne profits is not good law in view of the decision in Gurudas Kundu v. Hemendra Kumar Roy ('29) 16 A.I.R. 1929 P.C. 300. He further contends that Gurudas Kundu v. Hemendra Kumar Roy ('29) 16 A.I.R. 1929 P.C. 300 has been wrongly interpreted by the Division Bench in Secretary of State v. Hiru Mondal : AIR1935Cal752 and that decision, which made all the defendants having different grades of interest jointly and severally liable for mesne profits, because they had wrongfully combined in keeping out the rightful owner, is wrong. The contention of the learned advocate for the respondent is that the uniform course of decisions of this Court and of other High Courts which had applied the principle of joint and several liability of joint tort-feaaors to eases of mesne profits had not been affected by the decision in Gurudas Kundu v. Hemendra Kumar Roy ('29) 16 A.I.R. 1929 P.C. 300, that case being decided on the special facts of that ease. His explanation is that in that case the tenure-holder under the Kundus, namely Srish Chandra Sannyal, was found by the Judicial Committee to have been in lawful possession and so the Kundu defendants were made liable for mesne profits only to the extent of the amount of rent that they had received from Srish during the period of dispossession and not for what Srish and his tenants had received as profits from the land as the Kundu defendants were regarded as the only wrong-doers on the land.
15. In view of these contentions of the learned advocates and in view of the fact that Gurudas Kundu V. Hemendra Kumar Roy ('29) 16 A.I.R. 1929 P.C. 3 has been explained differently at different times by this Court for instance in Secretary of State v. Hiru Mondal : AIR1935Cal752 and Basanta Kumar Basu v. Ramshankar Ray : AIR1932Cal600 - it is necessary to examine Gurudas Kundu v. Hemendra Kumar Roy ('29) 16 A.I.R. 1929 P.C. 300 in some detail. We called for the printed record of that case and are setting out the facts which appear from the reports of that case as made in Basanta Kumar Roy v. Secretary of State ('17) 4 A.I.R. 1917 P.C. 18, Promode Nath Roy v. Secretary of State : AIR1927Cal182 and Gurudas Kundu v. Hemendra Kumar Roy ('29) 16 A.I.R. 1929 P.C. 300 as also from the printed record which we have examined with care. The facts were as follows:
A char appeared in the river Hughly. The Government as the proprietor of an adjoining char, char Raninugger, took possession through the Collector and settled the same in patni taluk with one Srish Chandra Sanyal, who in turn let it out in parcels to a large body of cultivators. The Kundus and the Roys of Dighapatia were proprietors of permanently settled estates which included three villages, called Durlavpore, Jirat and Hatikanda. In the said villages the Kundus had 6 annas share and the Roys 10 annas. Both those sets of proprietors made separate applications to the Collector for release of the said char, their ground being that the char was a reformation in situ of those three villages. The Kundus persisted but the Roys dropped off, with the result that the Collector admitted the claim of the former and put them in possession. They accepted Srish as their tenant. Thereafter the Roys filed their suit for possession and mesne profits. To that suit the Secretary of State, the Kundus, Srish and all the cultivators that Srish had brought on the land were made principal defendants. The suit had a chequered history. The learned Subordinate Judge, decreed the suit. On appeal this Court dismissed it as being barred by time. On appeal the Judicial Committee of the Privy Council restored the decree of the learned Subordinate Judge, Basanta Kumar Roy v. Secretary of State ('17) 4 A.I.R. 1917 P.C. 18.
16. The Roys then started proceedings for ascertainment of mesne profits. The learned Subordinate Judge held that mesne profits only up to the date of the institution of the suit could be awarded to the Roys. He refused mesne profits pendente lite and thereafter till the restoration of possession. For the period allowed by him he assessed mesne profits on rent basis. He made the Secretary of State liable only up to the date of release by the Collector to the Kundus. For the subsequent period and up to the date of the suit he passed a joint decree against the Kundus and the other defendants. There is a slight inaccuracy when Cuming J. stated in his judgment that the liability for mesne profits was apportioned among different defendants. Only the liability of the Secretary of State was separated from the liability of the other defendants. The Roys preferred an appeal to this Court in which they claimed mesne profits for the period disallowed, and also contended that the amount ought to be assessed on produce basis. Srish and his tenants took no part in the proceedings in this Court. The Secretary of State and the Kundus filed cross-objections but abandoned them at the hearing. This Court allowed the claim for mesne profits up to the date of recovery of possession and directed assessment on produce basis and passed a joint decree against the Kundus, Srish and his tenants. Only the Kundus preferred appeals to His Majesty in Council. The Judicial Committee affirmed those portions of the decree of this Court which had decreed mesne profits pendente lite and up to the recovery of possession and which had directed assessment on produce basis.
17. This Court had however held that all the defendants were jointly and severally liable for the mesne profits assessed on that basis as they were joint wrong-doers and only this part of the decree was modified by the Judicial Committee. We have examined the order of His Majesty in Council. There only the liability of the Kundus was separated, they being made liable only for the rent they had received from Srish and the joint decree against Srish and his tenants for the balance was maintained. In the course of the judgment, Lord Dunedin made the following observations which for convenience we have numbered adding within paranthesis what is implied by the context.
(i) Their Lordships have great difficulty in looking upon Srish as a trespasser, or for that matter, in one sense, even the Kundus as trespassers, because they were in possession of the land and on the only legal title to it which existed, namely, the lease (? release) for the Government. It is quite true in one sense they were in wrongful possession, because they were taking the whole profits whereas they were only entitled to 6 annas of the profits (as cosharers of the Boys).
(ii) Be that however as it may, their Lordships cannot accept this argument (that the Kundus were liable, jointly with Srish and the other defendants for the amount that Srish had got out of the land).
18. Then his Lordship, after repelling Mr. Upjohn's argument that the preliminary decree for mesne profits as passed by the learned Subordinate Judge which had been affirmed by the Judicial Committee in Basanta Kumar Roy v. Secretary of State ('17) 4 A.I.R. 1917 P.C. 18 was a joint decree against all the defendants and that decree had concluded the question raised by the Kundus, finally observed thus:
(iii) Therefore their Lordships think that the basis of the judgment of the High Court here fails: and that dealing with these Kundu defendants and with them alone their liability is just exactly what it is to be by Section 211, Civil P.C. (of 1882), namely, that which they themselves received - no case having been made that they by ordinary diligence could have got any more.
19. Reading these observations with the facts of the case and the Order in Council it seems to us that Lord Dunedin's decision did not proceed on the basis that Srish was not a trespasser. If that had been so, the decree for mesne profits against Srish and those defendants who held under him would not have been maintained, as has been done in the Order in Council. He simply pointed out the position of Srish. The phrase 'be that how ever as it may' does not in our judgment refer to what had been said before with regard to the Kundus only but also with regard to Srish. We cannot accordingly accept the respondents argument that the Judicial Committee considered the Kundus only to be trespassers and none of the other defendants, namely, Srish and his under tenants, to be so. For the same reason we cannot agree with the explanation of Gurudas Kundu v. Hemendra Kumar Roy ('29) 16 A.I.R. 1929 P.C. 300 as given in Secretary of State v. Hiru Mondal : AIR1935Cal752 . Probably that explanation, namely, that Lord Dunedin's decision had for its sole foundation the fact that Srish was not a trespasser would not have been given, if the learned Judges had before them the Order in Council. Nor can we accept the explanation as given in Basanta Kumar Basu v. Ramshankar Ray : AIR1932Cal600 that the Kundu defendants were made liable only for what they had received as rent from Srish only because the preliminary decree for mesne profits had separated their liability from the liability of Srish and his under tenants. If that was the only basis there would have been no necessity for what we have designated as the third observation of Lord Dunedin which in our opinion is the very foundation of that decision.
20. It is to be further noted that neither in Gurudas Kundu v. Hemendra Kumar Roy ('29) 16 A.I.R. 1929 P.C. 300 nor in Bhupendra Narain Sinha v. Rajeswar Prosad : AIR1931Cal802 there was any wrongful combination amongst the defendants who had dispossessed and kept the successful plaintiff out of possession. The facts of the former case negative the case of wrongful combination between the Kundus and Srish. Srish was already in possession through the act of the Collector and when the Kundus came on the scene as a result of the release by the Collector, they found Srish there and instead of turning him out pursued the prudent course of accepting rent from him. Gurudas Kundu v. Hemendra Kumar Roy ('29) 16 A.I.R. 1929 P.C. 300 has not therefore touched the relevant observations of Mookerjee and Teunon JJ. in Ramratan Kapali v. Aswini Kumar Dutt ('10) 37 Cal. 559. We hold that the exact scope of the decision in Gurudas Kundu v. Hemendra Kumar Roy ('29) 16 A.I.R. 1929 P.C. 300 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 him, where the defendants or the different sets of defendants had set up different grades of interest in the land in suit, and the professed sub-infeudation 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 zemindar 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 oonfirmed by the observations of the Judicial Committee in H.K. Gray v. Bhagu Mian .
21. The observation of Sir George Lowndes that Gray would have been bound to pay mesne profits on rent basis only if he had let the land to others is not a barren one made on a hypothetical state of facts, but was made to repel a relevant argument of his counsel. It may be an obiter dictum, but a dictum of the Judicial Committee enunciating a principle is as much binding on us as an actual decision, by that august body : Mata Prasad v. Nageshar Sahai and Nagarbashi Banik v. Meghnath Maishan : AIR1931Cal171 . In the case where there is a wrongful combination amongst the defendants the position is different. They would all be liable jointly and severally for mesne profits. In such a case they are to be regarded, in our judgment, as forming one body and the liability for their unlawful act when they so act in concert cannot and ought not to be separated or apportioned between them. It would be encouraging violence and unlawful acts if the rule regarding the measure of civil liability be in such a case laid down otherwise. It is on this principle that we agree with the actual decision in Secretary of State v. Hiru Mondal : AIR1935Cal752 , though, as we have said before, we do not agree with the observations made therein in regard to Gurudas Kundu v. Hemendra Kumar Roy ('29) 16 A.I.R. 1929 P.C. 300. We accordingly hold that the appellants Kalidas Kakshit and Jadu Kabiraj are jointly and severally liable among them and with the other principal defendants mentioned by us in respect of the whole amount that may be assessed as mesne profits.
22. In this view of the matter it is unnecessary to consider the further point raised by the respondent's advocate that the joint decree for Rs. 576 made at the earlier stage of the suit for mesne profits up to the institution of the suit precludes the appellants from raising this point in these appeals. We may however say that we are inclined to the view propounded by the respondent's advocate. When the appellants appealed against the judgment and decree of the learned Additional Subordinate Judge dated 20th May 1925 which had decreed that sum against all, the appellants could and should have raised the point that they were liable only for a fraction of that sum of Rs. 576 on the ground that as that sum of money was assessed on the basis of the produce they had not received the whole of that amount but a good portion thereof had been intercepted by Jadu and his sub-tenants, the other defendants who were occupying plot No. 1 of the suit.
23. The fourth argument urged by the appellant raises a new point not urged in the lower Court. The claim was not pleaded in the objection filed by Sarat and Jadu. All they stated therein is that they should be allowed credit for the expenses incurred for making improvements for putting embankments and for the cost of reclamation (Part I p. 76, paras. 6 and 8). They claimed Rs. 800 for it and that sum has been allowed by way of deductions. In these circumstances it would not have been right to allow them to raise the point for the first time in appeal. Moreover, there is no evidence to show how much of the profit is attributable to improvements made by them. For these reasons we overrule this contention.
24. The fifth and the sixth points urged by the appellants appear to us to be substantial. Both the area of culturable land and the price of crops have been assessed at high figures. Plot No. 1 as claimed in the plaint comprised an area of 731 bighas odd. The plaintiff's claim to the whole area was not decreed. It was only at the time when the plaintiffs obtained delivery of possession in the execution proceedings that the decretal land was demarcated and its area was found to be 581 bighas odd. The learned Subordinate Judge in arriving at the conclusion that at the material period of time, that is, from 16th April 1919 to 8th April 1931, two-thirds of 581 bighas was under cultivation has relied upon the previous depositions of Gour Mohan Dhali and Durga Charan Pramanik and the Commissioner's observations as embodied in his report. Both those persons were examined as witnesses by the defendants. The former was a mere witness but the latter is a defendant to the suit (defendant 32). Gour Mohan Dhali is a son of Ramgati Dhali (defendant 27). His father was interested only in plot No. 2 of the plaint. When he was speaking that half the plot was waste and half was fit for cultivation and was being cultivated in 1925, he was referring to plot No. 2 and not plot No. 1 in suit.
25. His evidence is therefore not material and even if it had been material it would not have been admissible in evidence in these proceedings in view of the provisions of Section 33, Evidence Act, there being no proof that he is either dead or cannot be found or that his evidence is not procurable except at unreasonable cost or delay. The previous deposition of Durga Charan however stands on a different footing. He was interested in a portion of plot No. 1 as claimed in the plaint and was speaking about it. His statement is not hit by Section 38, Evidence Act, for he being a party to the suit, the statement is admissible as an admission under Sections 18 and 21, Evidence Act. His statement was that half of plot No. 1 as claimed in the suit was waste and the other half was being cultivated twenty eight or twenty nine years before he deposed, i.e., in 1896-1897. That is an obviously incorrect statement. At the time of the boundary dispute in 1917-1918 nearly the whole was waste except a fringe on the east and south of plot No. 1. In respect of a substantial part of the southern portion the plaintiffs' suit has been dismissed.
26. The learned Subordinate Judge found that only 100 bighas was fit for cultivation and was being cultivated at the date of the institution of the suit. The statement in the deposition of Keshavlal Mazumdar, one of the plaintiffs, as made in 1925 was that only 100 to 125 bighas was cultivable in 1917. It is admitted that the lands of plot No. 1 are being progressively reclaimed. Gopal Bairagi, plaintiff's witness No. 11, said in his previous deposition that 14 annas of plot No. 1 was waste (patit) in 1925. He is dead and his evidence is accordingly admissible in evidence. The commissioner went to the locality twice, once on 6th May 1933 and again on 6th May 1934. He found with his own eyes that two thirds of the land of plot No. 1 as decreed was under cultivation then and the signs were that that was not recent cultivation. The plaintiffs took delivery of possession in April 1931. Plaintiffs witness No. 14 Harinath Das (1-130) who is husband of plaintiff No. 24, has admitted that after taking delivery of possession he constructed protective works which would naturally increase the area of reclamation. There is no reason to distrust the commissioner's personal observation, but tillage began in 1931 or so would not appear to a man making personal observation in the year 1934 to be of recent origin. On this state of the evidence, the position established is that 100 bighas was producing crops in 1918-1919. The area of tillage increased to 125 bighas in 1925 and there was gradual extension of cultivation and the area became 387 bighas (2/3 of 581) in or about 1931, when possession was delivered. Taking the average of these figures we think that mesne profits on the basis of paddy crop has to be calculated on an area of 112 bighas from 1920 up to the year 1925 and on an area of 256 bighas from 1926 till 1931.
27. Regarding the yield of paddy per bigha the learned Subordinate Judge has found that a bigha produces 3 salas pi paddy. The learned Additional Subordinate Judge who had decided the suit in 1925 accepted the figure of 2 salas per bigha. There would, however, be gradual increase in the productive powers of the lands after the first reclamation. We therefore accept the finding that 3 salas of paddy would be the yield per bigha. We accept the evidence that one sala is equivalent to three maunds. The witnesses for the plaintiffs depose in a parrot-like manner that in the relevant years the price of one sala was Rs. 10 or so. The defendants witnesses minimised the price. The commissioner whose estimate the Court accepted could not rely on such oral testimony. He proceeded on a better basis but he committed a sad and unpardonable error. He rightly relied upon the price of finished rice as published by the Bengal Government. He has detailed the price of a maund of finished rice in the different years at p. 201 of his report. We supply a figure from the Government publication and that is that in 1918 the price of a maund of finished rice was Rs. 7. The evidence is that a maund of paddy yields 20 seers of finished rice and the commissioner took that proportion in arriving at the price of paddy. To take an illustration - He found that in 1920 the price of a maund of finished rice to be Rs. 7-8-0 a maund and half of rice, which would be produced from three maunds of paddy (1 sala), was therefore Rs. 10-12-0. He therefore took the price of paddy to be Rs. 10-8-0 a sala in that year the difference being of 4 as only. The fallacy of the commissioner's calculations is that he did not take into account the costs of carrying paddy from the market to the husking mill, the costs of husking and converting paddy to rice, the cost of carrying the finished rice to the market again and the profits of the man producing rice from paddy. The total of these items would be considerable. When in 1918 rice was selling at Rs. 7 a maund the learned Additional Subordinate Judge assessed the price of a sala of paddy at Rs. 5 in his judgment dated 20th May 1925. On the commissioner's calculation it ought to have been assessed at about Rs. 10. Seeing that the price of rice gradually fell from 1921, except in 1925, 1926 and 1927, the average price would work out at about Rs. 4 a sala. We think that the justice of the case would be met if we direct a round figure namely Rs. 4-8-0 to be the average price per sala for the period under assessment. The learned Subordinate Judge is right in allowing half the yield as the cost of cultivation.
28. The learned Subordinate Judge was not right in holding that nal, hogla and malia had any market there. The commissioner disallowed the plaintiff's claim on these heads. They were weeds that naturally grow and in abundance on marshy land and are used by the poor for making mats and like articles. They exist in abundance in the locality and even the plaintiffs' witnesses admit in crosss examination that nobody pays anything for them. One of the plaintiff's' Keshavlal Mozumdar admitted in his previous deposition that Keni Hogla is not saleable. The plaintiffs' witness Bhadra Mandal has admitted in his cross examination that Keni Hogla is of no value and he took Nal, Hogla and Malia from the disputed land but no one demanded any price from him nor did be pay any. To the same effect is the evidence of plaintiffs' witness Sashi Bhusan Mandal as given in his cross-objection. We accordingly hold that the so called price of Nal, Hogla and Malia cannot be allowed to the plaintiff respondent 24. We do not see why the plaintiff should not get interest. Interest is a part of mesne profits. We do not also see why the rate should be less than 6 per cent, per annum. In Kedarnath Goenka v. Bageshwari Prasad Singh the Judicial Committee observed that if here be no special circumstance simple interest at 6 per cent, per annum is a fair rate and ought to be allowed. There are no special circumstances in the case before us. Plaintiff 24 will be entitled to simple interest at the rate of 6 per cent, per annum. In calculating the interest the Subordinate Judge has committed a mistake. To that extent the cross-objections are allowed.
29. The result of our findings is that all the principal defendants except defendants 15 to 18 and 60 and 61 will be bound to pay jointly and severally the amount of mesne profits that would result from our findings. The amount of mesne profits (excluding interest) would be Rs. 812 for each of the years 1920 to 1925 and Rs. 1856 (excluding interest) for each of the years 1926 to 1931. Let a self-contained decree be prepared calculating simple interest at the rate of 6 per cent, per year. From the total amount the sum of Rs. 800 is to be deducted and the balance would be the joint and several liability of the defendants mentioned above. The total amount would carry simple interest at 6 per cent, per annum till realization and is to be paid in two equal annual instalments payable on 2nd July of every year the first of such instalment would be payable on 2nd July 1942. In default of payment of any one instalment the whole would become recover, able. The property of the appellant Kalidas Bakshit which is under attachment will remain under attachment till the whole of the decretal amount is paid or realized. As the success of the appellants in both the appeals is substantial they would have half the costs of the appeals from plaintiff-respondent 24, Saraswati Dassi. This costs together with what they have paid under the terms of previous orders of this Court they, the appellants, would be entitled to set off against the instalments as they fall due. The order for costs as made in the lower Court would stand.
30. In Appeal No. 27, the appellant is defendant 85, the legal representative of Sarat Chandra Rakshit who was the gantidar of Mouza Bilpabla. In Appeal No. 117 the appellant is Jadu Nath Kaviraj who was the dargantidar under Sarat Chandra Bakshit of a portion of the property and figured as defendant 67 in the original suit for recovery of possession and mesne profits. The principal respondent in both appeals is Saraswati Dassi, who eventually became plaintiff 24 in that suit. I do not feel I can usefully add anything to the statement of facts set out by my learned brother or to the findings of fact in which I concur, but I would like to say a few words about two points of law, argued before us. The first point, as I apprehend it, is that when the Subordinate Judge passed the decree of 1925 in the original suit, he failed to make an order for the assessment of future mesne profits in terms of Order 20, Rule 12, Sub-rule (1) Clause (c), Civil P.C., and that the omission to do so has vitiated all subsequent proceedings for the ascertainment of mesne profits for the period from 16th April 1919, when the suit was instituted, up till the date of recovery of possession. Order 20, Rule 12, Sub-rule (1) is in these terms:
Where a suit is for the recovery of possession of immoveable property and for rent or mesne profits, the Court may pass a decree - (a) for the possession of the property; (b) for the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an inquiry as to such rent or mesne profits; (c) directing an enquiry as to rent or mesne profits from the institution of the suit until (i) the delivery of possession to the decree-holder (ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or (iii) the expiration of three years from the date of the decree, whichever event first occurs.
31. Under the Code of 1882, proceedings for ascertainment of mesne profits for the period commencing with the date of the institution of the suit were proceedings in execution in which the Court passing the decree had no part. The Code of 1908 altered the law, and made, these proceedings the function of the Court which tried the suit. The importance of this, for the purposes of the present argument, is that the Court which hears the suit and passes the decree is the Court in which the Legislature has vested the jurisdiction to entertain proceedings for the ascertainment of mesne profits accruing subsequent to the institution of the suit. Can it be said that the failure of the Court to record in express terms an order 'directing an inquiry as to rents or mesne profits from the institution of the suit' takes away that jurisdiction? An order directing such an inquiry is designed to express the intention of the Court that mesne profits from the date of the institution of the suit are to be ascertained. When such an intention is apparent, it cannot, in my opinion, be said that mere omission to frame it in an express verbal direction, can defeat that intention or deprive the Court of jurisdiction to hold an enquiry at a future date. In the present case the following circumstances are of essential importance to a right consideration of the argument. Firstly the plaint contained a claim for mesne profits for the entire period till recovery of possession, Secondly there was an application by plaintiff 24 in July 1931, for ascertainment of mesne profits from the institution of the suit up to the recovery of possession. Thirdly both the judgment and the decree of the learned Subordinate Judge stated that the plaintiffs were entitled to mesne profits up to the date of recovery of possession. The fact that the judgment of the learned Subordinate Judge contained the words 'but at present there will be a decree for mesne profits to the date of the suit,' makes it reasonably clear that he intended passing in future a final decree for mesne profits from, the date of the suit to recovery of possession. In the light of these circumstances, the objection reduces itself to a technicality, to give effect to which would be to delay if not to defeat justice.
32. The other point has reference to the measure of mesne profits and may be stated thus : Are the appellants jointly and severally liable on a produce basis, that is 'for the value of the crops actually extracted from the land by cultivation, or are each of the appellants separately liable for the rent which he himself received or could by ordinary diligence have received from the tenant or tenants immediately below him? Our finding of fact is that the two appellants combined with the cultivators, who were the tenants of the appellant Jadu Nath Kaviraj, in dispossessing the plaintiffs. Elaborate arguments have been advanced before us in the course of which we have been invited to draw general but conflicting propositions from a number of cases. In Gurudas Kundu v. Hemendra Kumar Roy ('29) 16 A.I.R. 1929 P.C. 300 there was no combination in tort between the Kundus and Srish, who was their immediate tenant, as the judgment of Lord Dunedin clearly shows. No doubt the land was in the possession of tenants of different grades : khas possession was with cultivators whose landlord was Srish, and his landlords were the Kundus. But it was not the mere fact of this sub-infeudation which determined the decision, and limited the liability of the Kundus for mesne profits to the rent which they had received from Srish. The governing consideration was that the Kundus themselves came into possession in a legal manner, and did no more than to continue Srish in the tenancy which he was already enjoying. It was the position of the Kundus which really distinguishes that case, as the concluding portion of the judgment quoted by my learned brother shows. Their Lordships said, that dealing with the Kundu defendants, and with them alone, their liability was just exactly what it is said to be by Section 211, Civil P.C.
33. The special circumstances of the case make it distinguishable for another reason, although the distinction may be somewhat obscured by the fact that the decree in the original suit was for mesne profits, and by the fact that the plaintiff's claim as against Srish and his tenants was rightly a claim for mesne profits proper. Vis-a-vis the Kundu defendants, however, the plaintiff's position was different. They were cosharers of the Kundus, and the latter were liable to them only for a portion of the rent - that portion to which the plaintiffs were entitled according to their share. In H.K. Gray v. Bhagu Mian there was no sub-infeudation at all. The proposition laid down in that case was that where, the person charged had let the land out to others, the measure of the profits for which he would be liable would be the rent that he received if there was no evidence that a higher rent could with ordinary diligence have been obtained; but where the wrongdoers cultivated the land themselves the cultivation profits are the primary consideration. In Secretary of State v. Hiru Mondal : AIR1935Cal752 the relevant facts were that one of the defendants a kanungo of the Government had dispossessed the plaintiffs, and had placed the other defendants in possession. It was found that there had been a combination among the several defendants which resulted in the dispossession of the plaintiffs. It was held that all the defendants were jointly and severally liable for mesne profits. The case is an authority for the proposition that even where there are different grades of interest between the defendants, they are jointly and severally liable if there was combination between them to dispossess the plaintiff. In view of what we have said regarding the decision of the Judicial Committee of the Privy Council in Gurudas Kundu v. Hemendra Kumar Roy ('29) 16 A.I.R. 1929 P.C. 300, we cannot see how this case can be said to be in conflict with any principle there laid down. In Ramratan Kapali v. Aswini Kumar Dutt ('10) 37 Cal. 559 the defendants were tenure holders of different grades, but there was nothing to indicate that they had combined to keep the plaintiffs out of possession. The following passages in the judgment embody the rule which was enunciated in that case : (At p. 568 of the report):
No doubt the liability of wrong-doers in tort is, as a general rule, joint and several, but it cannot be laid down as an inflexible rule, that in every case of tort the Court is to pass a joint decree against the wrongdoers, making each jointly and severally liable for the whole amount decreed.
(At page 570 of the report):
The plaintiffs are purchasers of an estate at a sale for arrears of revenue; the defendants are tenure holders of different grades who held possession of the properties under the defaulting proprietors; till the plaintiffs had made their election and indicated to the defendants that they did not want any portion of the rents payable by the actual cultivators to be interrupted by the under-tenure-holders, the defendants were entitled to remain in occupation and to exercise their rights over the property.... A decree for ejectment was consequently made against him, but there is no foundation for any suggestion that the defendants had combined or conspired to keep the plaintiffs out of possession. Consequently, they cannot, in justice, be made jointly and severally liable for the mesne profits, which must be apportioned according to the liability of the various defendants. The question, therefore, arises, what is the principle upon which such apportionment should be made? The obvious answer is that the liability should be apportioned according to the share of the profits intercepted by each defendant.
34. Bhupendra Narain Sinha v. Rajeswar Prosad : AIR1931Cal802 was again a case in which the element of combination between the tort-feasors did not exist. Government had transferred chakran lands to zemindars who settled them with tenants. Certain persons who had darputni rights in the land were thereby dispossessed, but the dispossession was not the result of any concert between the zemindars and the tenants to whom they gave settlement. In awarding mesne profits to the darputnidars this Court limited the liability of the zemindars to the rent which they had received and made the tenants liable on a produce basis. In view of our finding that the appellants before us combined to deprive the plaintiffs of possession, and having regard to the cases above considered, I have no doubt that the appellants should be held jointly and severally liable for mesne profits on the basis of the value of the produce actually taken from the land.