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(Rai) Satish Chandra Chaudhuri Vs. (Maharaja) Sasi Kanta Acharjya Chaudhuri and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1930Cal525
Appellant(Rai) Satish Chandra Chaudhuri
Respondent(Maharaja) Sasi Kanta Acharjya Chaudhuri and ors.
Cases ReferredGirish Chunder Lahiri v. Shashi Shikhareswar Roy
Excerpt:
- s.k. ghose, j.1. this appeal arises out of a suit for mesne profits. the plaintiff brought the original title suit in 1913, obtained a final decree in 1920, and delivery of possession in execution thereof in 1921. the suit for mesne profits was brought in 1922 in respect of the years 1326 and 1327 when the appeal was pending in the high court. the defence of the landlord-defendants is that mesne profits should be calculated on rent basis and not on profit basis. the defence of the tenant-defendants is that they were bona fide inducted into the land and that the profits claimed were too high. the plaintiff put his claim at rs. 3,994. the trial court made a calculation of mesne profits on the produce basis and fixed the amount at rs. 616-8-0 which was to be realized from defendants 8 to 12,.....
Judgment:

S.K. Ghose, J.

1. This appeal arises out of a suit for mesne profits. The plaintiff brought the original title suit in 1913, obtained a final decree in 1920, and delivery of possession in execution thereof in 1921. The suit for mesne profits was brought in 1922 in respect of the years 1326 and 1327 when the appeal was pending in the High Court. The defence of the landlord-defendants is that mesne profits should be calculated on rent basis and not on profit basis. The defence of the tenant-defendants is that they were bona fide inducted into the land and that the profits claimed were too high. The plaintiff put his claim at Rs. 3,994. The trial Court made a calculation of mesne profits on the produce basis and fixed the amount at Rs. 616-8-0 which was to be realized from defendants 8 to 12, being the tenants and some of the landlords. Both sides appealed. The landlord-defendants 8, 11, and 12 contended that they were not liable to mesne profits on produce basis. The tenant-defendants contended that the amount should be further reduced. The plaintiff on the other hand contended that the assessment made by the trial Court was too low, that the principle of assessment made by the trial Court was wrong and that further he was entitled to interest.

2. The learned District Judge who heard the appeal dismissed both appeals. The present second, appeal is preferred by the plaintiff. The defendants also preferred a second appeal, but were unable to get it admitted under Order 41, Rule 11, Civil P.C.

3. In this appeal it is contended that the lower appellate Court was in error in following the principle upon which mesne profits should be calculated. This principle has been the subject of recent decision by the Judicial Committee in two cases, namely, Gurudas Kundu v. Hemendra Kumar Roy A.I.R. 1929 P.C. 300 and Harry Kempson Gray v. Bhagu Mian . It is there laid down that the statutory test of mesne profits is not what the plaintiff has lost by his exclusion, but what the defendant has or might reasonably have made by his wrongful possession, It is pointed out that the learned District Judge in his judgment relies on the fact that the plaintiff himself was only a rent receiver and he, therefore, considered that it was not necessary to calculate the profits to a nicety. It is, therefore, contended that the matter should be remanded to the lower appellate Court, for further consideration. It appears, however, that the trial Court did base its decision upon a calculation of profits made upon evidence. It relied principally upon the evidence of the defendants' witness Nidas Mandal. The learned District Judge refers to this and he says that it is not possible for him, not having seen the witnesses, to say that any other witness was more reliable. It is pointed out that Nidas Mandal, although he was a witness cited by the talukdar defendants, deposes to the profits being at a lower rate than what is deposed to by the other defendant witnesses. But in any case it is a matter of evidence, and upon this point the learned District Judge has concurred with the trial Court. To this extent the findings of the trial Court cannot be assailed in second appeal. It is further pointed out on the other side, that it has been found that the talukdar defendants actually received only a money rent and the plaintiff himself was only a rent receiver. No doubt it is also found that the talukdars were acting jointly with the tenant-defendants. But nevertheless the fact that the talukdars and the plaintiff were both rent receivers cannot be overlooked. In the case of Harry Kempson Gray v. Bhagu Mian , it is held that when the person in wrongful possession of land merely let it to others the rental value of the land is the proper criterion for ascertaining mesne profits. In any case it seems to me that though the learned Judge makes reference to the fact that plaintiff was a rent receiver he nevertheless affirms the findings of the trial Court which were based upon a calculation of the profits derived from the produce. I think, therefore, no useful purpose will be served by sending back the case for a fresh hearing.

4. The next point urged in behalf of the appellant is that he is entitled to interest. The trial Court has allowed interest on the total amount at the rate of 6 per cent per annum from the date of the decree till realization. The plaintiff claims interest from the date of the suit. In the case of Girish Chunder Lahiri v. Shashi Shikhareswar Roy [1900] 27 Cal. 951 it was held that the Court had jurisdiction to reduce interest as it chose, because mesne profits are in the nature of damages which the Court might award according to the justice of the case. In that case the decree allowed mesne profits, without making mention of interest, and it was held, having regard to the definition of mesne profits that interest should be allowed. In the present case the Court below gave no reasons for refusing to give interest as claimed by the plaintiff, and I consider no reasons exist.

5. In this view the plaintiff is entitled to interest from the date of the suit. To this extent the decree of the lower appellate Court will be modified. The appeal is allowed in part with costs in proportion to each party's success in all Courts.


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