1. This appeal has arisen out of a suit which was instituted by the plaintiffs for recovery of possession of a patni taluq on a, declaration of the plaintiff's title thereto and after annulment of the encumbrances, if any, claimed by the defendants, and also for mesne profits. A decree having been passed in plaintiff's favour defendant 2 has preferred this appeal.
2. The facts, according to the plaintiffs, are the following: Touzi No. 148 of the Birbhum Collectorate which comprises lot Gomai was sold for arrears of revenue on 27th March 1924, and was purchased by defendant 17 in the benami of defendant 16. On 7th December 1924, defendant 16 took possession of the mehal through the Collectorate. Thereafter, on 5th January 1925, defendant 16 executed a deed of release in favour of the defendant 17. On 30th January 1925 (=17th Magh 1331) defendant 17 settled the mehal in patni with the plaintiff's with power to annul incumbrances, if any. The zamindari originally belonged to the deity Radharaman Jieu Thakur and there was a patni under it of which the holder at the time of the sale was defendant 1. Defendants 2 to 12 are darpatnidars of several interests under defendant 1. Of these defendant 2, who is the appellant, has 13 as odd darpatni interest in five of the villages, and eight annas darpatni interest in the sixth one-lot Gomai consisting of six villages in all. Defendants 13 to 15 are mortgagees from some of the darpatnidars. The contesting defendants were defendants 1 and 2, who took various defences. Of these such as are of any importance now will be referred to hereafter. The suit was instituted on 27th January 1926. During the pendency of the suit the patni of the plaintiffs defaulted in the payment of its rents and in consequence thereof it was sold under the Patni Regulation on 1st Jaistha 1335 and purchased by defendant 17.
3. The Subordinate Judge declared the plaintiff's title to the patni up to 1st Jaistha 1335, the date on which it was sold as aforesaid, and annulled the incumbrances of defendants 2 to 12. He held that defendant 1 is only a benamidar for defendant 3. He held further that the plaintiffs were not entitled to get possession as they had no subsisting interest at the date of the decision, the patni having been sold up as aforesaid on 1st Jaistha 1335. He held however that the plaintiffs were entitled to mesne profits from defendant 3, in respect of the period of one year from 30th January 1925 (=17th Magh 1331, date of the creation of the plaintiff's patni) up to 27th January 1926 (date of this suit), such mesne profits to be the amount which defendant 3 as patnidar had to pay to the zamindar; and that for a period of two years and three months, i.e., from the date of suit up to 1st Jaistha 1335 (date of the sale of the plaintiff's patni) the plaintiffs would get mesne profits against defendants 2 to 12, jointly, on the footing of their being trespassers, such mesne profits being what the defendants themselves could have realized from the tenants of the mehal.
4. The appellant's first contention is that the purchase which defendant 16 made was not on behalf of defendant 17, but was a purchase made for the benefit of the defaulting proprietors. It appears, that the appeals which defendant 1 and defendant 2 respectively filed before the Commissioner for setting aside the revenue-sale, defendant 1 alleged that the sale had been brought about by the proprietors in collusion with the darpatnidars, and on the other hand the allegation made by defendant 2 was that the patnidar who according to the terms of his lease was liable to pay the Government revenue wilfully defaulted and managed to bring about the sale in collusion with the proprietors (vide Ex. Z). It appears that about the time of the default defendant 2 himself was in heavy arrears, not having paid the rents of the darpatni for the years 1326 to 1329 B.S. and a suit for the said rents amounting to over Rs. 5,000 was pending against him (vide Ex. M). It also appears that defendant 1, about the said time, had not paid the patni rent for the three quarters ending with December 1923 or January 1924 (vide Ex. 6). There is no indication of any collusion between the proprietors either with the patnidar or with the darpatnidars in the matter of the bringing about of the sale, and the sale does not appear to be anything else than an ordinary incident brought about by the failure on the part of the patnidar, who had undertaken the liability to put in the revenue and omitted to do so, and such omission again having been due to the heavy arrears for which some of the darpatnidars, including defendant 2 himself, were responsible and for which a decree was subsequently passed against him. The oral evidence which the contesting defendants have adduced for the purpose of establishing that defendant 16 was the benamidar of the proprietors and not o defendant 17 consists of the testimony of the son of defendant 2.
5. Defendant 2 has not examined himself, though he was present in Court at the time of the trial. His son, who is a pleader, has said that defendant 16 was bidding at the sale at the dictation of the proprietors, Dharanidhar Banerji and others and that Dharani paid the consideration money to his Ammukhtear Sarat Chandra Mookerji who put it in. He also deposed that defendant 16 was the Head Master of a School which belonged to the said proprietors, and of which Dharani was the Secretary. We have examined the evidence of this witness with care, but we regret we cannot come to any other conclusion as regards his evidence than what the Subordinate Judge has done. The learned Judge has given very good reasons for his view that this evidence is not reliable.
6. An attempt has also been made on behalf of the contesting defendants to establish that it was with the money belonging to the proprietors that the purchase was made by defendant 16, by showing that on 27th March 1924, the date of the sale, the proprietors borrowed a sum of Rs. 6,001, from the father of defendant 17 upon a hand note (Ex. 1), it being said that from out of this money the consideration money as well as the revenue for the next instalment that had already fallen due were subsequently paid. This circumstance has also been sought to be reinforced by the fact that in 1927 the father of defendant 17 instituted a suit (Ex. D) upon this hand-note but eventually allowed the plaint to be rejected for default of payment of deficit court-fees. What inference the appellant exactly desires to draw from this last mentioned fact is not very clear, so long as it is not the case that the loan was fictitious. But it is said that this fact shows that some sort of an arrangement must have been come to between the parties, because it is not reasonable to suppose that a lender of such a large sum of money would allow the plaint to be rejected, unless he received satisfaction in some way or other. Now, on an examination of the materials on the record it seems to us clear that there has been no real attempt made by the appellant to establish that the money was borrowed by the proprietors for the purpose of purchasing this property at the sale or that any part of the money went for that purpose. The proprietors appear to have borrowed large sums of money from the father of defendant 17 on other bonds and hand-notes and stood indebted to him for those loans: vide para. 7 of the plaint Ex. D. The fact that defendant 16 is a teacher in the school belonging to the proprietors does not go very far. Nor is anything improbable in the explanation that Sarat Chandra Mookerjee who happens to be Ammukhtear of the proprietors was engaged by defendant 16 to do the work of putting in the money on his behalf. Defendant 17 examined himself as a witness and very clearly stated in his evidence that he was the real purchaser and that defendant 16 was his benamidar. The time for making all these suggestions was when he was in the witness box, but it is noteworthy that not one of these facts and circumstances was put to him in his cross-examination. The conclusion we have formed is that the appellant was apprehensive that the facts and circumstances upon which he now relies would have been satisfactorily explained if they were put straight to defendant 17 and so he did not venture to ask him anything about them. The brother of defendant 16, who is joint with the latter, was also examined as a witness on behalf of defendant 17. He has said that he and defendant 16 are debtors of defendant 17, a fact which would make it probable that defendant 16 would be used by defendant 17 as a benamidar. To him also nothing was suggested in cross-examination. The subsequent conduct of the respective parties to which the Subordinate Judge has referred in detail, namely, the taking of possession by defendant 16, the execution of the deed of release by him in favour of defendant 17, the registration of the name of defendant 17, and the payment of revenue by defendant 17 since then without any attempt being made by the proprietors for getting possession of the property or for payment of revenue, also support the conclusion that defendant 16 was the benamidar for defendant 17 and not for the proprietors.
7. The next contention urged on behalf of the appellant is that the towzi which was sole, though it bore a separate number and a separate amount of Government revenue, was not an entire estate within the meaning of Section 37, Act 11 of 1859. It has been urged that the portion of an estate for which a separate account is opened under Sections 10 and 11 Act 11 of 1859 and the portion from which it is separated are equally 'shares' within the meaning of Section 10 of the Act and are both liable to all the incidents of a 'share' and neither can be considered an entire estate: Monohur Mukerji v. Huro Mohun Mukerji (1864) 1 WR 26. By reference to the documents bearing on the point (Ex. U and Ex. L series) the previous history of the lands has been placed before us, and from certain other documentary evidence (Ex. J series, Ex. S series and Ex. Q) and also oral evidence it has been shown that there has been no partition of the lands under the Estates Partition Act. And upon this it has been argued that unless there has been a partition of the lands themselves under the provisions of that Act, and so long as, the lands themselves remain joint, the creation of separate towzis with separate revenues does not make the towzis entire estates but only shares of estate. As authority for this contention reference has been made to the case of Koowar Singh v. Gour Sundar (1897) 24 Cal 887. The case referred to, in our opinion, lays down no such proposition; it only states what the effect of a partition by the Collector made under that Act is. The Estates Partition Act came into existence in 1876, while the estate now represented by towzi No. 148 originated so far back as in 1799. It has been held that when an estate sold for arrears of revenue is recorded in a separate number in the Collector's rent-roll with a separate revenue assessed upon it, and the specification in the sale-certificate granted under Section 28, Act 11 of 1859 in the form prescribed by the Act shows that the estate sold was an entire estate the mere fact of a portion of the lands of the estate being joint with those of certain other estates cannot stand in the way of its being an entire estate within the meaning of Section 37 of the Act: Kamal Kumari v. Kiran Chandra (1898) 2 CWN 229 and Preo Nath Mitter v. Kiran Chandra Roy (1900) 27 Cal 290. The sale certificate (Ex. C) in this case and the Register Ex. 2 (2) sufficiently show that the towzi is an entire estate. It also appears that the Collector treated the estate as an entire estate and sold it as such: vide Robukari: Ex. Y.
8. It was next argued on the authority of the decision of the Judicial Committee in the case of Mt. Saraswati v. Surja Narain that the sale held was without jurisdiction. The contention, in our opinion, is not tenable, for the simple reason that in this case it is abundantly clear that 12th January 1924, failure to put in the arrears by the sunset of which date brought about the sale, was the date specified in Section 3 and not Section 2 of the Act. This decision of the Judicial Committee has been explained by a later decision of their Lordships in Krishna Chandra v. Pabna Dhanabandar Co. and also by the decision of this Court in the case of Radha Gobinda Deb v. Girija Prasanna Mookerji : AIR1932Cal153 .
9. The next contention of the appellant relates to the question of the plaintiffs' right to annul the under-tenure. We think the words of the plaintiffs' patni lease leave no room for this contention. It is quite true that by reason of the fact that the plaintiffs' patni was sold up subsequently to the institution of the suit, the plaintiffs at the date of the decision of the Court below were not entitled to obtain khas possession. But defendant 17 has not said anything against the plaintiff's right to annul the under-tenures and such right was exercised by the plaintiffs at a time when they were fully competent to do so.
10. The last contention relates to the question of mesne profits. As regards this matter, it has been argued in the first instance that a decree for mesne profits can only follow a decree for possession, and that when the plaintiffs have failed to obtain a decree for possession their claim for mesne profits should not have been allowed. The proposition, which the appellant has thus propounded and which under ordinary circumstances is perfectly sound, cannot be regarded to be applicable to the present case in its special circumstances. It is only because of the sale that took place during the pendency of the suit that the plaintiffs are precluded from obtaining khas possession. This cannot deprive the plaintiffs of their right to mesne profits up to the date up to which they were entitled to possession. So far as the principles as regards calculation of mesne profits are concerned, it seems to us that the learned Judge was right in making defendant 3 alone liable for the period up to the date of suit on the footing of his being the patnidar. As regards the period subsequent to the institution of the suit he has made defendants 2 to 12 liable jointly on the footing that they were trespassers since that date. As has been pointed out in the case of Basanta Kumar v. Ram Sundar : AIR1932Cal600 in the case of a claim for mesne profits two courses are left open to the Court. A decree for mesne profits may be passed jointly and severally against all the trespassers who may have jointly kept the plaintiffs out of possession for 'any particular period, leaving them to have their respective rights adjusted in a separate suit for contribution; or, the respective liabilities of such trespassers may be ascertained i,n the plaintiff's suit against them, and a decree on the basis of such several liabilities may be passed against the respective trespassers in plaintiff's favour.
11. This, in our opinion, was a ease in which the latter course should, if possible, have been adopted. It appears however that the appellant never asked the Court below to proceed on such lines, and indeed furnished no materials nor adduced any evidence to enable the learned Judge to apportion the mesne profits amongst defendants 2 to 12 inter se. The learned Judge seems to have been perfectly willing to help the appellant in that way, as would appear from the following observations of his in his judgment:
The liability of the other-defendants cannot be apportioned in this suit as the defendants did not adduce any evidence to show what sum each of them realized after institution of the suit till 1st Jaistha 13(SIC)5 B.S.
12. On 19th April 1927 defendant 1 instituted a suit, being R.S. No. 11 of 1927, for the rants of the derputni for the years 1330 to 1333 against defendant 2, that is to say the appellant, and his co-sharer. The suit was decreed on 24th July 1928, and it appears that the decretal dues were realised on 1st August 1929. The result of this realisation has been that defendant 1 has received from the appellant and his cosharer a portion of the amount for which defendants 2 to 12 stand liable on account of mesne profits under the decree which the Subordinate Judge has made in this case, namely mesne profits for the period commencing from the date of institution of this suit, (i.e. 27th January 1926) up to the end of Chaitra 1333. We appreciate that there is some amount of hardship on the appellant for what has happened, but for this we do not see that he is entitled to any relief as against the plaintiffs. It was for the appellant, if he wanted to have any relief, to take suitable steps in the present suit by applying for apportionment and placing proper materials before the Court for that purpose.
13. The result is that, in our judgment, this appeal fails and should be dismissed with costs to the plaintiff-respondents hearing-fee being assessed at 10 gold mohurs.