G.N. Das, J.
1. This rule was obtained by defendant 3 against an order of the learned Subordinate Judge dated 15th March 1949 in which he gave certain directions in the matter of the ascertainment of mesne profits, to a Commissioner appointed for this purpose. In 1944 a suit for declaration of the plaintiff's title and for recovery of possession was instituted against several defendants. Defendants 1, 2 and 6 were the trustees to the estate of one Sm. Sekheswari. Defendants 3, 4 and 6 were in possession of distinct plots under the trustees. On 20th March 1948 the suit was decreed, the plaintiff's title was declared and a decree for recovery of possession and for mesne profits was passed in favour of the plaintiff. Against the decree defendant 3 preferred an appeal to this Court and obtained Civil Rule No. 872 (F) of 1948 for a stay of the decree for delivery of possession and for ascertainment of mesne profits. This rule was heard on 23rd August 1948. An order was made by this Court directing stay of delivery of possession on certain conditions. The order directed that the Subordinate Judge should make a rough estimate of the mesne profits in respect of the property which was in the possession of defendant 3 from the date of suit, that is, 18th September 1944 till August 1950. If the security was furnished in respect of this sum the decree for delivery of possession would be stayed. There was a further order made in the rule to the effect that thereafter the Subordinate Judge would proceed to an ascertainment of the mesne profits for the entire period from 13th September 1944 till August 1950 and after such ascertainment the order requiring security to be furnished would be liable to be varied. After the matter went down to the Court below the plaintiff filed a petition stating that the mesne profits should be calculated on the basis that the profits of a cotta of laud was Rs. 10 per month. On this footing the plaintiff stated that the probable mesne profits would come up to Rs. 4,08,000. To this petition defendant 3 filed a petition of objection wherein he mentioned the profits received by him, and that the profits so received by him were largely due to the improvements made by him and which cost him a sum of about Rs. 2,00,000. After making deductions for interest on such cost the defendant stated that the nett profits would be about Rs. 500 per annum. In the alternative the defendant stated that the probable rent of the disputed land would be Rs. 6 per cottah per annum. By an order dated 15th February 1949 the learned Subordinate Judge made a rough estimate. He took the view that the land in the possession of defendant 3 would be about 6 bighas, the probable letting value would be Rs. 12 per cottah per annum and on that footing he calculated the probable mesne profits for the entire period, roughly six years, at the total sum of Rs. 8640. Thereafter the Court proceeded with the work of ascertaining the mesne profits of the land. A commissioner was appointed to ascertain the same. The commissioner in the course of his enquiry prayed for directions as regards the question as to the per-son on whom the onus lay to prove the amount of mesne profits. The learned Subordinate Judge dealt with this matter by order No. 109 dated 16th March 1949. In the course of his order the learned Subordinate Judge stated that the defendant judgment-debtor who was in possession was to lead evidence first to enable the commissioner to arrive at a conclusion as regards the amount of mesne profits. In case defendant 3, the judgment-debtor, did not lead such evidence the commissioner was to take further directions from the Court. On behalf of defendant 3, the judgment-debtor, a prayer was made that in case he was called upon to lead evidence first he might be allowed the opportunity of adducing rebutting evidence. The learned Judge did not pass any final orders on this petition but held it over for further direction in case the question arose at a later stage. It is the propriety of this order which is called in question in this Rule on behalf of the petitioner.
2. Mr. Sen appearing on behalf of the petitioner has contended that the learned Subordinate Judge adopted a wrong procedure by calling upon defendant 3 to lead evidence first. His contention is that in a case like the present the burden of proof is initially on the plaintiff and it is the plaintiff who is to lead evidence first. He has referred us to some cases bearing on this question.
3. Mr. Apurba Charan Mukherji appearing for the decree, holders has raised two contentions. In the first place he contends that the learned Subordinate Judge was right in holding that the burden of proof lay on the defendant judgment-debtor who was in wrongful possession. He has referred us to a decision of this Court in the case of Brojendra Coomar Roy v. Madhub Chunder Ghose, 8 Cal. 343. He has also contended that even assuming that the learned Subordinate Judge was wrong in holding that the burden of proof lay on the defendant, that is at best an error of law and this Court is powerless to interfere with the order passed by the Court below in revision.
4. We shall first deal with the first question, viz., whether in a case like the present it was for the plaintiff to adduce evidence first on the ground that the burden of proof lies on him. The word mesne profits is defined in Section 2, Clause (12), Civil P. C., which runs thus:
' 'Mesne profits' of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession.'
A plain reading of the clause shows that the plaintiff is entitled to receive from the person in wrongful possession either the profits received by such a person or the profits which such a person might have derived by the exercise of ordinary diligence. The burden of proof would depend on the nature of the claim made by the plaintiff. If the plaintiff limits his claim to the actual profits which the defendant is said to have received, obviously, in such a case, as the defendant is the person who had special knowledge of the actual receipt of profits received by him, the burden would lie on him to prove the actual receipts made by him. If, on the other hand, the plaintiff wants to make the defendant liable for the profits which the defendant ought to have received by the use of ordinary diligence in the event it cannot be said that that is a matter within the special knowledge of the defendant and the burden of proof would rest on the plaintiff to prove the probable receipts in respect of the disputed property. Under Section 101, Evidence Act the burden lies on the person who would fail if no evidence is given on either side. This is subject to a qualification to be found in Section 106, Evidence Act. The observation of Field J. in the case of Brojendra Coomar Roy v. Madhub Chander Ghose, (8 Cal. 343) quoted above is to the effect that as the defendants were in possession as wrong-doers it lay upon them to show what profits were realised by them. This observation has got to be read in the light of the facts of that case. In that case a claim was made in regard to mesne profits in respect of a certain taluk of which the defendant was in wrongful possession. The defendant produced certain account papers and wanted to prove to the Court the actual receipts which came into his hands. The account papers were found to be unreliable. It is under these circumstances that Field J. made the above observation. It cannot be said that this observation was intended to lay down a general rule applicable to all cases where the plaintiff claims mesne profits from the defendant. Brojendra Coomar Roy's case, (8 Cal. 343) was considered in the case of Ramakka v. Negasam : AIR1925Mad145 . That was a case which arose out of proceedings by way of restitution, the defendant claiming mesne profits from the plaintiff in respect of the property which was taken possession of by the plaintiff in course of execution. In that case a question arose as to who would begin first. Their Lordships of the Madras High Court after referring to the provisions of Order 18, Rule 1, Civil P. C., proceeded to state that in the enquiry held by the commissioner the defendant was to lead his evidence in the first instance and thereafter the plaintiff would lead his evidence. It may be pointed out that in that case the defendant was the person who was claiming mesne profits as against the plaintiff who was in wrongful possession. The case therefore is an authority for the proposition that the person claiming mesne profits has to lead evidence first. In the course of their judgment their Lordships draw a distinction between two classes of cases which may arise in the matter of determination of the amount of mesne profits. Their Lordships point out that in case the plaintiff claims the actual receipts made by the defendant as mesne profits, by virtue of the provisions of Section 106, Evidence Act, the burden would lie on the defendant, that is the person in wrongful possession to lead evidence first but where the plaintiff makes a claim in respect of profits that might have been realised by the defendant by the exercise of reasonable care the burden of proof would lie on the plaintiff to show the probable profits which the defendant might have received. We entirely agree with the view taken by the Madras High Court. This view found favour with the Patna High Court in the case of Ram Kishun Lal v. Abu Abdullah, 21 Pat. 735: (A. I. R. (30) 1943 Pat. 69). Mr. Sen also drew our attention to the case of Province of Bengal v. Sm. Purna Sashi Chaudhurani : AIR1943Cal125 . In that case Nasim Ali J. with whom the learned Chief Justice agreed observed that where the plaintiff claims probable profits of the land the burden lies on the plaintiff to prove what those probable profits are.
5. On a consideration of the cases referred to above we hold that in the present case the burden lies primarily on the plaintiff to prove his claim. As such the plaintiff is to begin first. Mr. A. C. Mukherji did not say in answer to a question by the Court that the plaintiff would limit his claim to the actual profits which the defendant received. The first contention raised on behalf of the petitioner must therefore succeed.
6. We have now to consider the second objection raised by Mr. Mukherji. This concerns the powers of this Court to interfere in revision under Section 115, Civil P. C. which runs thus :
'The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears--
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.'
Mr. Sen contends that the present case is covered by the observations of Sir John Beaumont in the case of N. S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras , towards the end of the judgment at p. 461. In order to appreciate the observation to which we shall refer presently it is necessary to state the facts which came up for decision in that case. In that case a question arose as to the construction of a will. This had bearing on the question whether the temple therein in dispute was a private temple or a public temple. The High Court was of opinion that the learned District Judge was under a serious error in construing the terms of the will. On this ground the High Court interfered with the decision of the learned District Judge in revision and proceeded to give a decision on their view of the construction of the will. Before the Judicial Committee a question was raised as to whether the High Court acted with jurisdiction in setting aside the decision of the District Judge under Section 115, Civil P. C. The Judicial Committee was of opinion that the High Court had exceeded their jurisdiction in interfering with the decision of the District Judge on the question of the construction of the will. Their Lordships in the course of their judgment referred first to the following passage in the case of Rajah Amir Hussan Khan v. Sheo Baksh Singh, 11 Cal. 6:11 I. A. 237 (P. C.) viz. :
'Whether they decided rightly or wrongly they had perfect jurisdiction to decide the question which was before them and they did decide it.'
Their Lordships pointed out that if the decision is erroneous in law that fact of itself did not entitle the High Court to interfere in revision because the Court has jurisdiction to decide a point rightly or wrongly. It is to be noted that the point before the Judicial Committee in the case of Rajah Amir Hussan Khan, (11 Cal. 6: 11 I A. 237 P. C.) was a question of res judicata and did not concern the jurisdiction of the Court either in entertaining the suit or in proceeding with it; the Court had jurisdiction to go into the question of res judicata if in exercise of its jurisdiction the Court made a mistake on the point of law, that was not a ground which empowered the High Court to interfere in revision. Their Lordships then proceeded to refer to the observations in the case of Balakrishna Udayar v. Vasudeya Aiyar, 44 I. A. 261 : (A. I. R. (4) 1917 P. C. 71), to the effect that 'Section 115 applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it, the section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved.'
The Judicial Committee there make the following observation in construing Section 115(c) :
'that in exercising jurisdiction the Court has not acted illegally, that is in breach of some provision of law, or with material irregularity, that is by committing some error of procedure in the course of trial which is material so that it may have affected the ultimate decision.'
Mr. Sen contends that the Judicial Committee explained the word illegal in Clause (c) as inclusive of cases where there is a breach of some provision of the law.
7. In our opinion having regard to the context, it cannot be said that their Lordships were inclined to take the view that any error of law which the Court may commit in exercising its jurisdiction would arm this Court with powers to interfere with the decision of the Court below.
8. In the present case the learned Subordinate Judge-adopted a wrong procedure in the matter of the ascertainment of mense profits, as such the case clearly comes within the observations of the Judicial Committee which say that the Court acts with material irregularity in the exercise of its jurisdiction when it adopts a wrong procedure in the course of the trial which materially affects the decision of the case. The present case therefore presents no difficulty whatsoever in the way of our assuming powers under Section 115, Civil P. C. Mr. Sen also referred us to the decision of the Judicial Committee in the case of Joy Chana v. Kamalakshya Chaudhury . In that case on an application under the Bengal Money-lenders Act the decree-holder who was the appellant before the Privy Council raised a contention that the loan was a commercial loan and the case therefore did not fall to be decided under the provisions of the Bengal Money-lenders Act. The Subordinate Judge on a construction of the mortgage bond was of opinion that the loan was a commercial one and he dismissed the application made by the judgment-debtor under the Bengal Money-lenders Act. Against that order a petition in revision under Section 115, Civil P. C., was taken to this Court. This Court disagreed with the decision of the learned Subordinate Judge that the loan was a commercial loan and the order of the Subordinate Judge was varied with regard to some properties. Against the decision of this Court, an appeal was taken to the Judicial Committee. Before the Judicial Committee, Mr. Pringle appearing on behalf of the appellant conceded that no appeal lay from the decision of the Subordinate Judge to this Court. This concession was accepted by the Judicial Committee without expressing any opinion on the point. Mr. Pringle then contended that as no appeal lay to this Court, this Court had no power to interfere in revision with the order of the Subordinate Judge. It was contended on the authority of Raja Amir Hossain Khan's case, (11 Cal. 6: 11 I. A. 237 P. C.) that at most the question whether the loan was a commercial loan or not depended on a question either of law or of fact and this Court in revision had no power to interfere. This contention was repelled by the Judicial Committee.
9. It is to be noted that the Judicial Committee expressly said that the question came under Section 115(b), namely that on an erroneous view of the powers of the Court, the Court had failed to exercise its jurisdiction. The case obviously came within the purview of Section 115(b) because once the Court determined that the loan was not a commercial loan the Court had to proceed to the next step in course of the proceedings, namely, whether relief should be given under the Bengal Money-lenders Act or not. The decision of the question whether the loan was a commercial loan or not, involved the further question namely whether the Court would assume further jurisdiction in the case or not. It had, therefore, direct reference to the jurisdiction of the Court to continue the proceedings before the Court. After stating that the case before their Lordships came under Section 115(b), their Lordships proceeded to observe as follows:
'The cases of Babu Ram v. Munna Lall : AIR1927All358 and Hari Bhikaji, v. Naro Vishvanath, 9 Bom, 432, may be mentioned as cases in which a subordinate Court by its own erroneous decision (erroneous, that is in the view of the High Court) in the one case on a point of limitation and in the other on the question of res judicata invested itself with a jurisdiction which in law it did not possess, and the High Court held, wrongly their Lordships think, that it has no power to interfere in revision to prevent such a result.'
10. It is contended that in this passage their Lordships seem to lay down a general rule that if on a question of res judicata or on a question of limitation a subordinate Court goes wrong, this Court is entitled in revision to interfere with the decision of the subordinate Court. If this were the correct reading of the above sentence, it would be in direct conflict with what was decided by the Judicial Committee in the case of Rajah Amir Hossain Khan: (11 Cal. 6: 11 I. A. 237 P. C.), where the question of res judicata was said to be a pure question of law and an erroneous decision on that question was said to be a matter outside the old Section 622, Civil P. C., 1882. It is obvious that such a result could never have been intended. If we examine the facts in Babu Ram v. Munna Lal : AIR1927All358 , it would appear that in that case an application to set aside an ex parte decree had been made. This was accepted by the trial Court without properly going into the question of limitation. On an application in revision on behalf of the plaintiff, the High Court of Allahabad was of opinion that the application was obviously barred under Article 164, Limitation Act, but the High Court declined to interfere as this was not a matter which came within Section 115, Civil P. C. Reference was made to the case of Balkrishna Udayar v. Vasudeva Aiyar, 44 I. A. 261: (A. I. R. (4) 1917 P. C. 71). In the latest case before the Judicial Committee the case is said to have been wrongly decided by the Allahabad High Court. It is to be observed that in the case under consideration the trial Court had not properly dealt with the question of limitation, the assumption of jurisdiction by the Court which depended on the decision of an initial question whether the application was made at a time beyond the period of limitation, as required by the terms of Section 3, Limitation Act, was irregular. In the case of Hari Bhikaji v. Naro Vishvanath, 9 Bom. 432, the High Court had refused to interfere in revision on the ground that the point raised was a question of res judicata which was a mere question of law. This decision is also considered by the Judicial Committee in the latest case to have been wrongly decided. A reference to the facts of this case would show that the claim for mesne profits had been previously negatived and a second proceeding had been started to ascertain the mesne profits which had been already negatived in a former trial. It may be that here if the question of res judicata had been decided properly, the latter Court would have no power to go into the further question as to the ascertainment of mesne profits. This may be the reason why the Judicial Committee opined that this case was wrongly decided. The actual facts in the case of Raja Amir Hossain Khan do not appear either in 11 Cal. 6, or in 11 I. A. 237. It is difficult for us to gather what the precise facts were. It would seem, however, from the bare summary which is given in the reports that there a previous suit for redemption was dismissed and later on proceedings were again taken under the Oudh Taluk Act for the same relief. It is possible that the question of res judicata arose merely as an issue in the case, namely, whether the claim for redemption was available to the plaintiff in the later proceeding in view of the previous decision. In our opinion, it cannot be said that in the last two decisions, the Judicial Committee have differed from the view which was taken in the early case of Rajah Amir Hossain Khan in 11 I. A. 237: 11 Cal. 6 (P.C.) viz., that a mere error of law which has no reference to the question of jurisdiction is not by itself sufficient to entitle this Court to interfere in revision. In our opinion only in those cases where in the exercise of jurisdiction the Court acts illegally or with material irregularity that this Court can interfere under Section 115(c), Civil P. C., a mere error of law not involving the jurisdiction of the Court is not enough. As we have already observed, in the present case the direction of the learned Subordinate Judge to the commissioner to ask judgment-debtors to lead evidence in the first instance materially affects the determination of the question of mesne profits and the case comes within Section 115(c), Civil P. C. The objection raised by Mr. Mukherjee must, therefore, be overruled.
11. In the result this Rule is made absolute. The order of the learned Subordinate Judge is set aside and this case is remitted to him for directing the commissioner to proceed with the work of mesne profits in the light of the observations made above.
12. The defendant petitioner is entitled to his costs in this Rule from the plaintiff opposite party, the hearing-fee being assessed at two gold mohurs.