Ghoss and Brett, JJ.
1. This appeal arises out of an application made by the decree-holders, who are the appellants before as, for ascertainment and recovery of mesne profits due to them, the lands in respect of which such mesne profits were claimed having been decreed to them against the defendants, the judgment-debtors.
2. There seems to have been a contest between the parties as to the principle upon which such mesne profits should be ascertained. The decree-holders apparently claimed the value of the produce of the lands which the judgment-debtors, during the period of their unlawful possession, actually received, while, on the other hand, the judgment-debtors contended that all that the decree-holders were entitled to receive was the rent at which they might have been able to let out the lands, if they had continued to be in possession, and had not been disturbed in such possession by the defendants.
3. The Subordinate Judge did not go into the facts upon which any principle could be applied, but following the case of Raghu Nandan Jha v. Jalpa Pattap (1) (1897) 3 C. W. JJ. 748., held that the proper principle was to ascertain what would have been a fair and reasonable rent for the lands, if the same had been let to a tenant during the period of unlawful occupation by the defendants; and he accordingly ruled the point raised between the parties in favour of the judgment-debtors, and directed the ascertainment of mesne profits. The words used in the last portion of his order constitute 'an order for the production of evidence accordingly.' This, however, motels, as we have just indicated, the production of evidence as regards the amount of mesne profits recoverable, in accordance with the view accepted by the Subordinate Judge.
4. Now, looking at the case to which the Subordinate Judge refers in his judgment, it will be found that the decree-holder there before the ouster by the defendant was in constructive possession of the lands by letting them out to tenants; and having regard to that fact, the learned Judges, following oertain rulings quoted in their judgment, held that the proper principle applicable to the case was to ascertain what would be a fair and reasonable rent for the land, if the same had been let out to a tenant during the period of unlawful occupation of the wrong-doer. As we have already mentioned, no facts were gone into by the Subordinate Judge in this case when he laid down the principle enunciated in his judgment. We need hardly say that there is no general principle which could be made applicable to every case of the kind. What the Subordinate Judge ought to have done was to ascertain precisely what the facts were and what the nature of the possession of the plaintiffs was before the ouster, and then to have determined the principle upon which the mesne profits should be ascertained. We need hardly point out to him any of the cases decided by this Court where, having regard to the character of the possession held by the decree holder before ouster, the principle for the ascertainment of mesne profits was laid down. We may, however, refer him to the cases of Sreenath Bose v. Nobin Chunder Bose (1) (1868) 9 W. R. 473., Soudaminee Dabee v. Anund Chunder Haldar (2) (1870) 13 W. B. 37., Nursingh Boy v. Anderson (3) (1871) 16 W. R. 21., and Bookumee Koer v. Ram Tuhul Boy (4) (1872) 17 W. R. 150.
5. We are of opinion that the Subordinate Judge should ascertain the precise facts, and then determine the principle upon which mesne profits in this case should be ascertained.
6. We may here mention that the learned vakil for the respondents raised before us a preliminary objection to the hearing of this appeal, upon the ground that no appeal lay to this Court, because the Subordinate Judge did not determine the amount of mesne profits recoverable by the decree-holders. But having regard to the provisions of Section 244 of the Code of Civil Procedure, it is impossible to say that the question determined by the Subordinate Judge is a question in respect of which a second appeal does not lie to this Court. We accordingly overrule the objection.
7. We make no order as to costs. Let the records be sent to the Court below without delay.