Nasim Ali, J.
1. On 18th November 1930, the respondents instituted a suit in the Court of the Subordinate Judge of Noakhali against the appellants for recovery of possession of some char lands and for mesne profits. On 6th July 1935, they obtained a decree for possession of a portion of the lands in suit with mesne profits against the appellants. By this decree the appellants were permanently restrained from settling the decretal lands with any one permanently or temporarily or from inducting anyone on these lands. There was a direction in this decree that the amount of mesne profits would be ascertained on the application of the respondents under Order 20, Rule 12, Civil P.C. In March 1937, the respondents obtained possession of the decretal lands. On 20th May 1937, the respondents filed an application under Order 20, Rule 12, Civil P.C., for ascertainment of mesne profits in respect of the decretal lands for nine years four months, i.e., from three years before the date of the institution of the suit up to the date of delivery of possession. A commissioner was appointed by the Subordinate Judge to ascertain these mesne profits. On 21st May 1938 he submitted his report to the Judge. The appellants as well as the respondents filed objections to this report. On 15th August 1939, the learned Judge heard these objections and arrived at the following findings:
(1) that the respondents are entitled to mesne profits from the appellants from the date of the institution of this suit till the time of delivery of possession to them, i.e., for six years and four months;
(2) that it was not possible to ascertain from the commissioner's report the exact amount of the profits actually received from the decretal lands by the appellants during this period;
(3) that the respondents were entitled to recover: (a) Rs. 356-11 as arrears of rent not realised from tenants inducted by them, (b) Rs. 2643-6-0 as profits from the date of the institution of the suit till delivery of possession, i.e., for six years and four months at the rate of Rs. 417-6-0 per year for portions of decretal lands which might have been settled with tenants as culturable but were not so settled, and (c) Rs. 7128-12-0 as profits for five years from 1339 to 1343 B.S. at Rs. 1425-12-0 per year for Pata and Kachia lands which could have been settled with tenants as culturable lands but were not settled.
2. The learned Judge directed the commissioner to ascertain the profits actually received by the appellant from the decretal lands from the date of the institution of this suit till delivery of possession. On 22nd September 1939, the commissioner reported that the appellant actually received Rs. 1882-2-3 from the decretal lands as profits from the date of the institution of the suit till delivery of possession. On 11th October 1939, the Judge accepted this report of the commissioner and finally decreed the suit in these terms:
It is ordered and decreed that the suit be decreed for mesne profits against defendant 1 for (1) Rupees 1882-2-3 pies as the amount actually realised, (2) Rs. 256-11 annas as arrears not realised, (3) Rupees 2643-6 annas, as profits for lands which might have been settled with tenants as culturable but were not so settled and (4) Rs. 7128-12 annas as profits for Pata and Kachia lands which had become culturable and could be settled with tenants but were not settled. The total amount comes up to Rs. 11,910-15-3 pies. The plaintiffs are also entitled to Rs. 3073-6 annas as interest at 6 per cent, per annum on the aforesaid amount and that the sum of Rs. 1762-12-7 pies be paid by defendant 1 to the plaintiffs on account of the costs of this suit, with interest thereon at the rate of 6 per cent, per annum from this date to date of realisation.
3. On 1st April 1940, defendant 1 filed the present appeal. In this appeal we are not concerned with the profits which the appellants actually received from the decretal lands (item 1 of the decree of the trial Judge) but with the profits which the defendants might have with ordinary diligence received from the date of the institution of the suit till the delivery of possession of the decretal lands to the respondents (items 2 to 4 of the decree of the trial Judge). In Secretary of State v. Saroj Kumar , Sir John Wallis said:
On the terms of the definition of mesne profits what the plaintiffs have to shew is that with reasonable diligence more might have been realised than was actually realised by the revenue authorities in the way of profits which term includes both rents and premiums, it any.
4. In Harry Kempson Gray v. Bhagu Mian , Sir George Lowndes said:
The test set by the statutory definition of mesne profits is clearly not what the plaintiff has lost by his exclusion but what the defendant has or might reasonably have made by his wrongful possession. What the plaintiff in such a case might or would have made can only be relevant as evidence of what the defendant might with reasonable diligence have received.
5. As regards item 2 of the decree of the trial Judge, the commissioner reported that the appellant might have realised this amount from the tenants if ordinary diligence were exercised. The commissioner further said that no attempt was made to realise them even by filing certificate cases. Admittedly, the appellants did not make any attempt to realise these arrears by filing certificate cases. The case of the appellants however is that the certificate cases were not instituted against the tenants as there was no chance of these monies being realised from them. They, however, made no attempt to substantiate this case. These amounts were due from the tenants. The appellants could have realised these amounts by certificate proceedings under the Public Demands Recovery Act. I am, therefore, of opinion that the learned Judge was right in decreeing these unrealised arrears as mesne profits against the appellants.
6. As regards item 3, the commissioner in his report stated that the lands to which this amount related became fit for cultivation in 1928 and that they could have been let out to tenants on rent basis at the usual rate of RS. 3-2-0 per acre per year. The appellants did not challenge this finding of the commissioner. Their objection, however, to this item is that no one came forward to take settlement from them of these lands inasmuch as the respondents caused proclamation to be made by beats of drums at hats and bazars forbidding people to take settlement of these lands from the appellants. This proclamation, however, was made in 1928. In spite of this proclamation, admittedly, many tenants took settlement of other portions of the decretal lands which became fit for cultivation in 1928 at usual rent. There is no evidence in this case that the appellant made any attempt to settle this portion of the decretal lands and that they could not y settle them as tenants were not available. :If the respondents had not been kept out of these lands by the appellants, they could have settled these lands with tenants at the! usual rent. I am not, therefore, prepared to accept the appellants' case that these lands could not be settled with tenants as no one came forward to take settlement of them on account of the proclamation issued by the respondents in 1928. It is, however, an admitted fact that on 6th July 1935, the appellants were restrained perpetually by the decree of the trial Judge from letting out the entire decretal land. After this injunction, it was not possible for the appellants to get any profit out of these lands. The respondents are, therefore, entitled to get for those lands mesne profits from the appellants only for the period from the date of the institution of the suit till 6th July 1935 at the rate of Rs. 3-2-0 per acre per year. The amount of mesne profits of this period is accordingly assessed at Rs. 1800.
7. The finding of the commissioner is that the lands to which item 4 of the decree of the trial Judge relates are Patha and Kachya (seeds) lands, that they became fit for being settled as culturable lands from 1339 B.S. (1932-33) and that the appellants might have leased out these lands to tenants at usual rates and selamis if ordinary diligence were applied. The appellants did not object to the finding of the commissioner that these lands are Patha and Kachya lands and that they became fit for cultivation from 1339 B.S. Their case, however, is that no one came forward to take settlement of these lands as litigation was going on in respect of them. The appellants adduced no evidence to substantiate this case but p. w. 3 in his evidence said:
The tenants did not agree to take settlement of Patha and Kachya lands inasmuch as these lands might be comprised within the plaintiffs' lands and inasmuch as heavy costs would be incurred in cultivating these lands.
8. From this evidence it is clear that the tenants did not take settlement of these lands as litigation was going on in respect of them and they did not like to take the risk of being saddled with mesne profits if the suit of the respondents would eventually succeed. On the evidence coming from the respondent's side, I hold that the appellants could not have settled these lands with ordinary diligence and could not have received any profits from these lands. I am of opinion that the decree of the trial Judge awarding Rs. 7128-12-0 as mesne profits for Patha and Kachya lands under item 4 should be set aside. The result, therefore, is that this appeal is allowed in part, and the decree of the trial Judge is modified in the manner indicated above. The parties will bear their own costs throughout in this litigation.
9. I agree.