1. This appeal arises out of a final decree determining mesne profits. The proceedings followed a decree for possession with mesne profits in favour of the plaintiff and against a very large number of defendants who belong to two classes, viz., the landlord-defendants and the tenant-defendants. The. plaintiff has appealed, but some of the defendants of the latter class are not before us, one of them not having been made a party to the appeal and three others having died and an application to substitute their heirs in their places not having been allowed as it was filed out of time. The decisions of the Courts below assessing the amount of mesne profits are concurrent.
2. A preliminary objection has been taken as to the maintainability of the appeal in view of the defect of parties noticed above. This objection will have to be dealt with first.
3. The claim for mesne profits is one to recover damages for the previous occupation of the land and under the present procedure it can be joined with the action for the recovery of the land. In the present case it was so joined and a decree entitling the plaintiff to mesne profits was passed against all the defendants in the suit. In the proceedings relating to the ascertainment of mesne profits, a certain sum was assessed by the trial Court and the decree passed on the basis cf the said assessment has been upheld by the lower appellate Court. The object of the plaintiff in preferring this appeal is to vary the amount so assessed. His ground is that the assessment has been made on a wrong principle.
4. An action for mesne profits is in origin an action of trespass. It is, therefore, regulated by these broad principles which apply to and are now well settled as being applicable to actions for damages against wrong doers. In such actions joint wrong doers may be sued jointly or severally.
5. In Pollock on the Law of Torts, 10th edn. p, 206 the principles are stated thus:
Where more than one person is concerned in the commission of a wrong, the person wronged has his remedy against all or any one or more of them at his choice. Every wrongdoer is liable for the whole damage, and it does not matter, whether they acted, as between themselves, as equals, or one of them as agent or servant of another. There are no degrees of responsibility, nothing answering to the distinction in criminal law between principals sand accessories. But when the plaintiff in such a case has made his choice, he is concluded by it. After recovering judgment against some or one of the joint authors of a wrong, he cannot sue the other or others for the same matter, even if the judgment in the first action remains unsatisfied. By that judgment the cause of action transit in rem judicatium and is no forger available. The reason of the rule is Stated to be that otherwise a vexations multiplicity of actions would be encouraged.
7. As regards joint torts it is said in Addison's Law of Torts, 8th edn. p. 44:
All who aid or counsel, direct or join in the commission of a tort are joint tort-feasors. 'If divers do a trespass it is joint and several at the will of him to whom the wrong is done', that is to say, he can sue any one or more of them at his election, and those who are sued cannot Insist on haying the others joined as defendants.
8. In Thurman v. Waild  11 Ad. & E. 453 and other cases it was settled that an accord and satisfaction by one wrongdoer for the whole injury done discharges all the wrongdoers. A release, therefore, given of the whole cause of action to one discharges the others, the reason being that the cause of action being one and indivisible having been released, all persons otherwise liable thereto are consequently released : Cocke v. Jennor  Hob. 66. But a covenant or agreement not to sue one of them is no defence to an action against the others : Hutton v. Eyre Hob. 66. If therefore while purporting to release one tort-feasor it reserves rights against another, it will be construed as a covenant not to sue and not a release : Duck v. Mayeu  2 Q.B. 511, Rice v. Reed  1 Q.B. 54. The rule for construing such a document was laid down in the case of Price v. Barker  4 E. & B. 760 and is to the effect that the meaning would turn upon the intention to be gathered as to whether the right against a joint debtor was intended to be preserved or not. In King v. Hoare  13 M. & W. 760 Parke, B, authoritatively laid down:
These considerations lead us, quite satisfactorily to our minds, to the conclusion that where judgment has been obtained for a debt, as well as a tort, the right given by the record merges the inferior remedy for the same debt or tort against another party.
9. See also Buckland v. Johnson  23 L.J.C.P. 204, Brinsmead v. Harrison  7 C.P. 547, Kendall v. Hamilton  4 A.C. 504. Brinsmead v. Harrison  7 C.P. 547 settled the point that after recovering judgment against one wrongdoer, a plaintiff cannot sue the other for the same matter, even if the first action remains unsatisfied a proposition which was doubted before them. Though Section 43, Contract Act, is not perhaps quite clear whether a complete adaptation of the English rule is intended, yet King v. Hoare  13 M. & W. 491 has been held to apply in this country both in respect of joint debtors and of joint wrongdoers.
10. If these principles are applied to an action for mesne profits against co-trespassers the position is clear that while it is open to the plaintiff to proceed against one or some or all of several co-trespassers at his own choice, once a decree has been obtained it is the decree in its entirety that may be challenged on appeal and not otherwise; for so long as the decree against some remains a final and operative decree and not subject to an appeal, even though it is not satisfied but is capable of execution, the plaintiff cannot proceed with the suit further and take an appeal as against the others.
11. The question of the maintainability or otherwise of the appeal may be considered from another point of view, namely, as being dependent upon the question whether there is a right of contribution amongst the defendants inter se because if there is such a right, the decree, on the appeal if it varies that from which the appeal has been preferred will affect the rights and liabilities of those parties who are not before the Court and will produce an inconsistency on the record which is not permitted, ay law.
12. No doubt, as a general rule the liability of joint wrongdoers in tort is joint and several, but it is not an inflexible rule which needs no relaxation according to the view that is taken of jointness of the act or acts which constitute the wrong. Mookerjee, J., in an elaborate judgment in the case of Ram Ratan Kapali v. Aswini Kumar Butt  37 Cal. 559, in which he has exhaustively dealt with the question, has observed thus:
It cannot be laid down as an inflexible rule that in every case of tort, the Court is bound to pass a joint decree against the wrongdoers making each jointly and severally liable for the whole amount decreed.... In cases, therefore, in which the controlling general principle, namely, that where acts of several persons by design, or by conduct tantamount to conspiracy, contribute to the commission of a wrong, they are jointly liable, is not applicable, the rule of joint liability also ceases to be applicable.
13. In that case it was held that in respect of mesne profits which accrue during the pendency of a suit for possession, the liability of different tenure-holders of the same degree, and1 of separate trader-tenure-holders of different degrees, should1 b& apportioned according to the share of the profits intercepted by each. Thisdecision has been dissented from by Page, J., in the case of Promode Nath Roy v. Secy. of State : AIR1927Cal182 . With great respect, however, I venture to think that the judgment of Mookerjee, J., carefully ready appears to except from the general rule1 cases in which the tort-feassors are not really joint and are, therefore, persons-to whom the rule does not apply and, in my opinion, therefore, the judgment is unexceptionable. Merryweather v. Nixon  70 L.J.P. 42 was a case in which one S brought an action against two persons for an injury done by them to his reversionary estate in a mill, in which was included a count in trover for the machinery belonging to the mill and having recovered 840, he levied the whole upon one of the said two persons, and one of them then sued the other for a contribution of the moiety, as for so much money paid to his use. The plaintiff was nonsuited. Lord Kenyon, C.J., said
that he had never before heard of such an action having been brought, where the former recovery was for a tort; that the distinction, was dear between this case and that of a joint1 judgment against several defendants in an action of assumpsit; and that this decision, would not affect cases of indemnity where one nun employed another to do acts, not unlawful in themselves, for the purpose of asserting a right.
14. The rule has been modified in collision cases : The Frankland  70 L.J.P. 42, Austin Friars Steamship Co. v. Spiller & Bakers Ltd.  3 K.B. 586. Relying upon Palmer v. Wick Steam Shipping Co.  A.C. 318 it has been said in more decisions than one that the rule will not be extended. The rule has been said by very high authority as having, been too widely laid down and it has been said that it is to be taken with the qualification that it will hold1 if the nature of the case is such that the plaintiff must be presumed to have known that, he was doing an unlawful act : See Pollock on the Law of Torts, 10th edn., p. 207, referring to the dicta of Lord Herschell in Palmer v. Wick Steam Shipping Co.  A.C. 318; Per Bruce, J., in The Englishman and The Australia  P. 212 and Burrows v. Rhodes  1 Q.B. 816 : see also Adamson v. Jarvis  4 Bing. 66.
15. In this country the doctrine has not been applied in cases of contribution regarding mesne profits where the parties were not wilful tortfeasors, Bishuu Charan Roy v. Bipin Chandra Roy  18 C.W.N. 622, and doubt has been entertained whether it applies to this country at all Nihal Singh v. Collector of Bulandshahr  38 All. 237. When wrongdoers have acted under a bona fide claim of right and had reason to suppose that they had a right to do what they did, contribution inter se may be allowed : Sreeputty Roy v. Laharam Roy B.L.R. Sup. Vol. 687; Suput Singh v. Imrit Tewari  5 Cal. 720; Kishna Ram v. Rakmini Sewak Singh  9 All. 221; Mahabir Prasad v. Darbhangi Thakur  4 Pat. L.J. 486. There has been cases in which the liablity of co-trespassers for mesne profits has been apportioned where their shares are capable of being determined, e.g., Makund Singh v. Saraswati Bibi  29 C.L.J. 245.
16. On behalf of the appellant it was contended that in the present case it has already been found that all the defendants acted in concert and consequently Merryweather v. Nixon  8 T.R. 186 should be applied in all its integrity and no question of contribution can possibly arise. In support of this contention reliance has been placed upon certain findings in the judgments declaring the plaintiff's right to khas possession and mesne profits I have carefully examined these findings, but I am unable to hold that they were ever intended to be treated as findings decisive of the question. The question never arose for determination in the suit as lit is obviously a question between the defendants inter se and there was no issue raised for its effective determination.
17. The result then is that the appeal is no longer maintainable. In that view the appellant's contention as to the propriety of the principle on which mesne profits have been calculated need not be considered.
18. The appeal is dismissed with costs.