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Raja Sashikanta Acharyya Vs. Raja Sarat Chandra Rai Chaudhuri - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal699,70Ind.Cas.6
AppellantRaja Sashikanta Acharyya
RespondentRaja Sarat Chandra Rai Chaudhuri
Cases ReferredGreen v. Biddle
Excerpt:
decree, interpretation of - ambiguous decree--judgment, reference to--suit for possession and mesne profits--decree ambiguous as to profits--presumption--mesne profits--trespassers bona fide and mala fide--interest on mesne profits--civil procedure code (act v of 1908), order xx, rule 12--execution--limitation, operation of. - 1. these two appeals are directed against a decree for the ascertainment of mesne profits in continuation of a suit for recovery of possession of land with, mesne profits. neither the judgment-debtor nor the decree-holder has been satisfied with the decision of the subordinate judge; the former considered the amount awarded as excessive, while the latter deemed, the amount inadequate. consequently, both the parties have appealed, and all the points in controversy between them have been elaborately re-argued in this court. upon one material point, however, the parties have, since the close of the arguments, wisely come to an agreement, as will presently, be explained, and the matters which actually require our decision have thereby been substantially reduced to a narrow compass.2. subject.....
Judgment:

1. These two appeals are directed against a decree for the ascertainment of mesne profits in continuation of a suit for recovery of possession of land with, mesne profits. Neither the judgment-debtor nor the decree-holder has been satisfied with the decision of the Subordinate Judge; the former considered the amount awarded as excessive, while the latter deemed, the amount inadequate. Consequently, both the parties have appealed, and all the points in controversy between them have been elaborately re-argued in this Court. Upon one material point, however, the parties have, since the close of the arguments, wisely come to an agreement, as will presently, be explained, and the matters which actually require our decision have thereby been substantially reduced to a narrow compass.

2. subject matter of the litigation was an area of 2720 bighas, approximately, which, the plaintiff claimed as included in Mouza, Shyampur, Paharpur, within his Zemindar Mahal No. 218. The defendant claimed that the lands appertained to and had been permanently settled as Mahals Nos. 219 and 45, of which he was the proprietor. The plaintiff was the purchaser of Mahal No. 218 at a sale for arrears of revenue held on the 14th January 1891 and confirmed on the 15th, March 1891. The plaintiff instituted the present suit for recovery of possession and mesne profits on the 23rd December 19031. The suit was decreed by the Subordinate Judge on the 27th March, 1905. On appeal to this Court the decree of the Subordinate Judge was confirmed on the 22nd May 1908. The defendant, thereupon appealed to His Majesty in Council, with the result that the Judicial Committee held on the 20th July 1914 that the judgment and decree appealed from should stand and that the appeal should be dismissed with costs. The Judgment of the 'Judicial Committee is reported as Surju Kanta v. Sarat Chandra : (1914)16BOMLR925 . The order in Council was made on the 10th August 1914. The decree-holder thereafter made the present application on the 13th December 1915 for assessment of mesne profits in execution of the Order of His Majesty in Council. He prayed that possession of the decretal lands might be delivered to him and that mesne profits might be decreed so as to cover a period of three years before the institution of the suit and the period from the date of the institution of the suit to the date of delivery of possession. After a full enquiry, the Subordinate Judge has assessed mesne profits at Rs. 85,916; of this sum Rs. 41,712 represents the principal amount and Rs. 44,204 the interest thereon. The period for which mesne profits have been allowed extends from the 23rd December 1899, that is, from three years prior to the institution of the suit, to the 1st April 1917, when possession was delivered to the decree-holder. This decree has been assailed before us on six grounds, namely, first, that the decree for mesne profits as made in the suit is vague and incapable of execution; secondly, that the plaintiff is not entitled to mesne profits for any period antecedent to the suit; thirdly, that the plaintiff is not entitled to mesne profits for any period subsequent to three years from the date of the decree made by the Subordinate Judge on the 27th March 1905; fourthly, that, in any event, the plaintiff was not entitled to mesne profits after the 18th. November 1916 when the defendant relinquished possession of the decretal lands ; fifthly, that interest should not have been allowed on the profits at the rate of 12 per cent, per annum, and sixthly, that the mesne profits have been calculated on an erroneous basis and without adequate enquiry.

3. As regards the first ground, we are of opinion that the decree for mesne profits wade in the suit is neither indefinite nor incapable of execution. As pointed out by the Judicial Committee in Kali Krishna Tagora v. Secretary of State for India in Council 15 I.A. 186 : 16 C 173 : 12 Ind. Jur. 413 : 5 Sar. P.C.J. 237 : 8 Ind. Dec. (N.S.) 115 (P.C.) the decree where necessary may be inters preted by reference to the judgment. The decree made by the Subordinate Judge on the 27th March 1905, was in these terms; 'that the claim for mesne profits be decreed, the amount of which will be ascertained in the execution department.' This decree, it will not be overlooked, was made when the Civil Procedure Code of 1882 was in force and was expressed in terms familiarly used at that time. The claim was set out in the decree in the same terms as in the plaint and was formulated, as follows: 'that mesne profits for the disputed lands described in the schedule, for three years previous to the institution of the suit and also for the period after the institution of the suit till date of obtaining possession, may be ascertained, and a decree may be passed for the same, together with interest on the same for each year at the Tate of one per cent, per month.' There is manifestly no indefiniteness about the claim for mesne profits. The decision in Wise v. Rajendur Coomar Roy 11 W.R. 200 which was followed in Ram Manickya Dey v. Juggunnath Gope 5 C. 563 : 2 Ind. Dec. (N.S.) 966 is clearly distinguishable, and no useful purpose would be served by an attempt to test whether the decree for mesne profits made in this suit is indefinite and incapable of execution by reference to observations made with regard to a decree made in another suit and expressed in different terms. The cases mentioned, as also the decisions in Huronath Roy v. Indoo Bhoosun Deb Roy 6 W.R. Mis. 33, Ram Lochun v. Munsoor Ali 11 W.R. 339; Janokee Nath v. Raj Kristo Singh 15 W.R. 292 and Bunsee Singh v. Mirza Nuzuf Ali Beg 22 W.R. 328 merely show that in executing a dec.ee for mesne profits, the terms of the decree as to the period during which mesne profits are to be allowed must be strictly adhered to; substantially to the same effect is the decision in Mon Mohun Sirkar v. Secretary of State for India 17 C. 968 : 8 Ind. Dec. (N.S.) 1191. If there were any ambiguity, the presumption might well be made that the Court intended to allow mesne profits for the period allowed by law; Trailokya Nath Roy Chaudhri v. Jogendra Nath Ray 35 C. 1017; Uttamram v. Kishordas 24 B. 149 : 1 Bom. L.R. 638 : 12 Ind. Dec. (N.S.) 637; Narayan Govind Manik v. Sono Sadashiv 24 B. 345 : 1 Bom. L.R. 846 : 12 Ind. Dec. (N.S.) 764. We hold accordingly that there is no real substance in the first contention of the judgment-debtor-appellant. Indeed, the decree-holder has argued that the decree for mesne profits as made in the suit is so definite and specific, that none of the questions raised by the judgment-debtor (except the question of amount) is really open for discussion. We are not prepared to accept this extreme contention. It is not disputed that the validity of an order made at one stage of a litigation, unless forthwith challenged by an appropriate proceeding in a superior tribunal, must be regarded as conclusive between the parties and cannot be questioned or collaterally attacked at a later stage; see Krishna Behari Roy v. Bunwari Lal Roy 2 I.A. 283 : 1 C. 144 : 25 W.R. 1 : 3 Sar. P.C.J. 559 : 3 Suth. P.C.J. 213 : 1 Ind. Dec. (N.S.) 93 (P.C.); Mungul Perhsad Dichit v. Grija Kant Lahiri 8 I.A. 123 : 8 C. 51 : 11 C.L.R. 113 : 4 Sar. P.C.J. 249 : 4 Ind. Dec. (N.S.) 32 (P.C.); Ram Kirpal v. Rup Kuari 11 1. A. 37 : 6 A. 269 : 4 Sar. P.C.J. 489 : 3 Ind. Dec. (N.S.) 718 (P.C.); Beni Ram v. Nanhu Mal 11 I.A. 181 : 7 A. 102 : 4 Sar. P.C.J. 564 : 4 Ind. Dec. (N.S.) 138 (P.C.); George Henry Hook v. Administrator-General of Bengal : (1921)23BOMLR648 ; Rajeswara Sethupati Avergal v. Velusami Tevar : (1921)23BOMLR701 . On the other hand, reference may legitimately be made to the judgment in the suit to interpret the decree and to ascertain what the Court has really decided; see Kali Krishna Tagore v. Secretary of State for Indian Council 15 I.A. 186 : 16 C 173 : 12 Ind. Jur. 413 : 5 Sar. P.C.J. 237 : 8 Ind. Dec. (N.S.) 115 (P.C.); Jagatjit Singh v. Sarabjit Singh 19 C. 159 : 18 I.A. 165 : 15 Ind. Jur. 749 : 6 Sat P.C.J. 80 : Rafique and Jackson's P.C. No. 125 : 9 Ind. Dec. (N.S.) 552 (P.C.); Bhup Indar Bahadur Singh v. Bijai Bahadur Singh 27 I.A. 209 : 23 A. 152 : 2 Bom. L.R. 278 : 5 C.W.N. 52 (P.C.). That such reference to the judgment, and if need be, to the pleadings is justifiable, is also dear from the decisions in Robinson v. Duleep Singh (1879) 11 Ch. D. 798 : 48 L.J. Ch. 758 : 39 L.T. 313 : 27 W.R. 21 May; In re (1884) 25 Ch. D. 231 at p. 236 : 49 L.T. 770 : 32 W.R. 337 and Houston v. Sligo (Marquis) (1885) 29 Ch. D. 448 : 52 L.T. 96. Now, when we examine the judgment of the Subordinate Judge in the suit it becomes manifest that the only question he determined was the liability of the defendant for mesne profits; He did not consider the annual income, the period of time and the rate of interest,--elements which must be determined before the actual amount of mesne profits can be assessed. Consequently, the decree of the Subordinate Judge, as interpreted by his judgment, leaves no room for controversy that when he directed that 'the claim for mesne profits be decreed, the amount of which will be ascertained in the execution department,' he decided nothing beyond this that the defendant was liable for mesne profits and that the questions of annual income, period of time and rate of interest, which are all essential factors for the ascertainment of the 'amount,' were left open for investigation at a later stage. See Makund Singh v. Saraswati Debt 51 Ind. Cas. 98 : 29 C.L.J. 245. The first objection taken by the judgment-debtor consequently fails.

4. As regains the second ground, the judgment-debtor has contended that he should not be made liable for mesne profits for any period antecedent to the institution of the suit; indeed, it has even been argued that he should not also be made liable for the period of pendency of the suit in the Court of first instance. It has been urged that he was a bona fide trespasser, and in this connection, reference has been made to the decision of this Court, dated the 17th March 1877, in a suit instituted by one Amarchand Lahatta (at that time interested in Mahal No. 218) against the plaintiff in the present litigation (who was then, as now, interested in Mahals Nos. 219 and 45). In that suit, the boundary line between the estates held by the rival claimants was determined. The appellant contends that he was in possession of the disputed lands by virtue of the decision in that suit; but this is not quite accurate, for the evidence in the suit made it abundantly clear that he had overstepped the boundary as demarcated in the earlier litigation. This, however, is not very material. The plaintiff, as purchaser of the estate No. 218 at a sale for arrears of revenue, was not concluded by the decree in the previous litigation, as he ?did not derive his title from the defaulting proprietor but took the estate from the Crown as it stood at the time of its inception as a permanently settled estate. The investigation in the present litigation shows that the delineation of the boundary in the earlier suit was incorrect, and that, in substance, is the basis of the decision of the Judicial Committee. The plaintiff is consequently entitled to recover with mesne profits whatever tract of land has been found to have been included in fact in the estate exposed for sale by the: Revenue Authorities. By no fiction of law can we hold that the appellant was lawfully in possession under the colour of the decree in the previous suit after the revenue sale had actually taken place, which transferred the title to the purchaser with retrospective effect from the date of default whereby the interest of the defaulting proprietor in the estate was in essence determined, as stated by Lord Atkinson in Surja Kanta v. Sarat Chandra : (1914)16BOMLR925 . There is. consequently no analogy between the present case and the litigation which culminated in the decision of the Judicial Committee in Banwari Lal v. Mahesh 49 Ind. Cas. 540 : 45 I.A. 284 : 41 A 63 : 21 O.C. 428 : 23 C.W.N. 577 : 6 O.L.J 168 : (1919) M.W.N. 490 (P.C.). That is an authority for the proposition that where, in a suit by the sons to set aside an, alienation by their father, a conditional decree for possession on payment of portion of the consideration found to be binding on the estate is passed, the sons are not entitled to mesne profits, as the possession of the alienee was not unlawful. To the same effect is the decision of the Madras High Court in Ganesa Aiyar v. Amirthasami 44 Ind. Cas. 605 : (1918) M.W.N. 892 : 23 M.L.T 245; see also Bhirgee Nath v. Narsingh Tewari 35 Ind. Cas. 475 : 39 A. 61 : 14 A.L.J. 1161. Nor can the appellant invoke the aid of the principle that, where the party in possession is not a trespasser at all until his title is made void by entry, as where he holds against the reversioner or remainder-man by virtue of a fine levied by the tenant for life, mesne profits can only be recovered from the date of such entry; Compere v. Hicks (1798) 7 T.R. 727 : 101 E.R. 1221; Hughes v. Thomas (1811) 13 East 474 : 104 E.R. 454. The decision in Peruvian Guano Co. v, Dreyfus (1892) A.C. 166 : 61 L.J. Ch. 749 : 66 L.T. 536 : 7 Asp. M.C. 225, which was applied by the Judicial Committee in Dakhina Mohan Roy v. Saroda Mohan Roy 20 I.A. 160 : 21 C. 142 : 17 Ind. Jur. 576 : 6 Sar P.C.J. 366 : 10 Ind. Dec. (N.S.) 727 (P.C.) also does not advance the contention of the appellant, and the same observation applies to Livingstone v. Rawyards Coal Co. (1880) 5 A.C. 25 at p. 30 : 42 L.T. 334 : 28 W.R. 357 and Palmer v. Wick Steam Shipping Co. (1894) A.C. 318 : 6 R. 245 : 71 L.T. 163 There is further no shadow of an imputation of laches on the part of the plaintiff, as there was in the case of Juggernath Sahoo v. Syud Shah Mahomed Hossein 14 B.L.R. 386 : 23 W.R. 99 : 2 I.A. 48 : 3 Sar P.C.J. 419 (P.C.) where the Judicial Committee disallowed mesne profits antecedent to the suit. It has been ingeniously argued, however that the appellant as an adverse possessor was an encumbrancer, and that till he had notice, by institution of this suit, that the purchaser at the revenue sale desired to annul his incumbrance, his possession was lawful, and he could not be held liable for mesne profits. In support of this position, the appellant has invoked the aid of the decisions in Ram Ratan Kapali v. Aswini Kumar Dutt 6 Ind. Cas. 69 : 37 C. 559 : 11 C.L.J. 503 : 14 C.W.N. 849 and Darsan Singh v. Bhawani Das 19 Ind. Cas. 974 : 17 C.W.N. 984 which, on examination, are found to be clearly distinguishable and of no assistance whatever to his contention. In these cases, the person in possession was an, under-tenure-holder. The purchaser at the revenue sale brought a suit for ejectment and mesne profits. It was ruled that for the period antecedent to the suit for annulment of the incumbrance, the possession of the under-tenure-holder was not wrongful and that the purchaser at the revenue sale was not entitled to claim by way of damages for use and occupation any sum in excess of what actually represented the rent payable by-the under-tenure-holder. This principle clearly cannot be applied to an adverse possessor, who occupies the land without payment of rent to the proprietor, as if he were the holder of a valid rent-free grant. If the contention of the appellant were to prevail, the result would be entirely different from what happened in Ram Ratan Kapali v. Aswini Kumar Dutt 6 Ind. Cas. 69 : 37 C. 559 : 11 C.L.J. 503 : 14 C.W.N. 849 and Darsun Singh v. Bhawani Das 19 Ind. Cas. 974 : 17 C.W.N. 984 In those cases, the under-tenure-holder was made to pay to the purchaser at the revenue sale rent for the lands in his occupation; here the appellant, who was in possession without title, would be in a more advantageous position and would escape all payment to the rightful owner for the period antecedent to the suit. In this view, it is needless to consider whether the appellant was an encumbrancer, as held in numerous decisions which will be found reviewed in Kalikananda v. Biprodas Pal 26 Ind. Cas. 436 : 21 C.L.J. 265 : 19 C.W.N. 18; Ishan Chandra Bakhsh v. Sefatulla Sikdar 68 Ind. Cas. 219 : 35 C.L.J. 36 : 26 C.W.N. 703 letters Patent Appeal No. 49 of 1920 decided by Mookerjee and Panton, JJ. on the 18th August 1921; Prasanna Kumar Dutt v. Janendra Kumar Dutta 31 Ind. Cas. 801 : 43 C. 779 and Debi Saran Singh v. Rajbans Nath Dubey 43 Ind. Cas. 895 : (1918) Pat 134 : 5 P.L.W. 9 : 4 P.L.J. 29 or became a co-proprietor of the defaulting estate, as indicated in Kumar Kalanand Singh v. Syed Sarafat Hossein 12 C.W.N. 528; Rahim-ud-din v. Bhabangana Debya 1 Ind. Cas. 81 : 13 C.W.N. 407; Baikuntha Nath v. Basanat Kumari Dasi 34 Ind. Cas. 916 : 23 C.L.J. 151; Aftar Ali v. Brojendra Kishore Roy 37 Ind. Cas. 252 : 24 C.L.J. 60; Jitendra Kumar Pal v. Mohendra Chandra 37 Ind. Cas. 239 : 24 C.L.J. 62 and Mohim Chandra Deb v. Pyaryi Lal 39 Ind. Cas. 213 : 25 C.L.J. 99 ; 21 C.W.N. 537 : 44 c. 412. In either view, the essential, fact remains that, as occupier without title and without payment of rent, the appellant was bound to surrender possession of the disputed lands to the revenue sale purchaser when the sale was confirmed on the 15th March 1891. From that date onward, he must be deemed to have unlawfully kept the purchaser out of possession. Consequently, he has no shadow of a grievance when he is called upon to pay mesne profits from the 23rd December 1899 which enables him to escape reimbursement of profits for more than eight years, which in justice belonged to the purchaser but which he has managed to appropriate and retain. In our judgment, the second ground cannot be sustained on any conceivable principle either of law or of justice, equity and good conscience, and must consequently be overruled.

5. As regards the third ground, the appellant has argued that the decree-holder can be allowed mesne profits only up to the expiry of three years from the date of the decree made by the Subordinate Judge on the 27th March 1905. Section 211 of the Civil Procedure Code of 1882, which was in force when the decree in this suit was made, was in the following terms: 'When the suit is for the recovery of possession of immoveable property yielding rent or other profit, the Court may provide in the decree for the payment, of rent or mesne profits in respect of such property from the institution of the suit until the delivery of possession to the party in whose favour the decree is made, or until the expiration of three years from the date of the decree (whichever event first occurs) with interest thereupon at such rate as the Court thinks fit.' The respondent contends that the term 'decree' signifies the ultimate decree which alone has operative force and is capable of execution. This argument is supported by the decision of the Patna High Court in Nand Kumar Singh v. Bilas Ram Marwari 43 Ind. Cas. 855 : 3 P.L.J. 116 : (1917) Pat. 377 : 4 P.L.W. 100 which is precisely in point and accords with the decision of this Court in Trailokya Nath Roy Chaudhri v. Jogendra Nath Ray 35 C. 1017. In that case, the decree of the primary Court was made on the 28th November 1905 and allowed recovery of possession with mesne profits from the date of the decree to the date of recovery of possession. This decree was confirmed by the High Court on appeal on the 14th May 1907 and an appeal therefrom to His Majesty in Council was dismissed by the Judicial Committee on the 7th March 1913. It was ruled by the Patna High Court that the only decree capable of execution was the Order in Council and that mesne profits should be allowed up to the expiration of three years from the date of such order. In support of this position, reliance was placed upon the decision of the Judicial Committee in Bhup Indar Bahadur Singh v. Bijai Bahadur Singh 27 I.A. 209 : 23 A. 152 : 2 Bom. L.R. 278 : 5 C.W.N. 52 (P.C.) which shows that, for the purpose of interpreting Section 211 of the Code of 1882 or Order XX, Rule 12 of the Code of 1908, the term 'decree' in such circumstances must be taken to mean the decree made by the Privy Council. We may usefully recall here the lucid exposition given by Mr. Justice Dwarkanath Mitter in Ram Charan v. Lakhi Kant 7 B.L.R.704 at p. 714 : 16 W.R. 1 (F.B.) of the true effect of the disposal of an appeal upon the decree of the primary Court: 'If the decree of the lower Court is reversed by the Appellate Court, it is absolutely dead and gone; if, on the other hand, it is affirmed by the Appellate Court, it is equally dead and gone, though in a different way, namely, by being merged in the decree of the superior Court which takes its place for all intents and purposes. Both the decrees cannot exist simultaneously.' This is in accord with the view expounded by Scotland, C.J., in Arunachella v. Veludayan 5 M.H.C.R. 215 and was subsequently adopted by the majority of the Full Bench in Muhammad Sulaiman v. Muhammad Yar Khan 11 A. 267 (F.B.) : A.W.N. (1889) 55 : 13 Jur. Ind. 427 : 6 Ind. Dec. (N.S.). 598 where the observations of the Judicial Committee in Kristo Kinkur Roy v. Rajah Burrodacaunt Roy 14 M.I.A. 465 : 17 W.R. 292 10 B.L.R. 101 : 2 Suth. P.C.J. 564 : 3 Sar. P.C.J. 62 : 20 E.R. 860 were explained. This principle has been repeatedly approved, and illustrations of its application will be found in Luchmun Persad Singh v. Kishun Persad Singh 8 C. 218 : 4 Shome L.R. 261 : 10 C.L.R. 425 : 4 Ind. Dec. (N.S.) 140 : (F.B.) which was decided by a Full Bench of this Court and followed the decision of the Judicial Committee in Pitts v. LaFontaine (1881) 6 App. Cas. 482 : 50 L.J.P.C. 8 43 L.T. 519; Muhammmd Sulaiman v, Muhammad Yar Khan 11 A. 267 (F.B.) : A.W.N. (1889) 55 : 13 Jur. Ind. 427 : 6 Ind. Dec. (N.S.). 598 and Muhammad Sulaiman Khan v. Fatima 11 A. 314 : A.W.N. (1889) 107 : 6 Ind. Dec. (N.S.) 628 (F.B.) which were decided by two Full Benches of the Allahabad High Court, and Rameswar v. Bhaba Sundari Debi 5 Ind. Cas. 304 : 11 C.L.J. 81; Aghara Kumar v. Mahomed Musa 5 Ind. Cas. 723 : 11 C.L.J. 155, Brija Lal Singh v. Mahadeo Prasad 12 Ind. Cas. 669 : 15 C.L.J. 432 : 17 C.W.N. 133; Gajraj Mati v. Shami Nath 36 Ind. Cas. 307 : 39 A. 13 : 14 A.L.J. 853; Kailash Chandra Basu v. Girija Sundari Debi 14 Ind. Cas. 299 : 39 C. 925 : 16 C.W.N. 658 and Chandra Kanta y. Lakshman Chandra 36 Ind. Cas. 460 : 24 C.L.J. 517 : 21 C.W.N. 430 which review many of the earlier decisions on the subject and show that the doctrine is supported by the judgment of the Judicial Committee in Brij Narain v. Tejbal Bikram 6 Ind. Cas. 669 : 37 I.A. 70 : 32 A 295 : 11 C.L.J. 560 : 14 C.W.N. 667 : 7 A.L.J. 507 : 12 Bom L.R. 444 : 8 M.L.T. 57 : 20 M.L.J. 587 : (1910) M.W.N. 392 (P.C.). The decisions of the Judicial Committee in Batuk Nath v. Munni Dai : (1914)16BOMLR360 and Abdul Majid v. Jawahir Lal : (1914)16BOMLR395 , are clearly distinguishable, as based on a recognition of the principle that dismissal of an appeal for default is not an affirmance of the decree; to the same class belong the decisions in Patloji v. Ganu 15 B. 370 : 8 Ind. Dec. (N.S.) 252; Bhola Nath v. Kanti Chundra 25 C. 311 : 1 C.W.N. 671 : 13 Ind. Dec. (N.S.) 208; Kailash Chandra Basu v. Girija Sundari Debi 14 Ind. Cas. 299 : 39 C. 925 : 16 C.W.N. 658 and Syam Mandal v. Sati Nath 38 Ind. Cas. 493 : 44 C. 954 : C.W.N. 776 : 24 C.L.J. 523. These decisions do not militate against or weaken the effect of the two decisions of the Judicial Committee in Kristo Kinkar Roy v. Rajah Burrodacaunt Roy 14 M.I.A. 465 : 17 W.R. 292 10 B.L.R. 101 : 2 Suth. P.C.J. 564 : 3 Sar. P.C.J. 62 : 20 E.R. 860 and Brij Narain v. Tejbal Bihrarn 6 Ind. Cas. 669 : 37 I.A. 70 : 32 A 295 : 11 C.L.J. 560 : 14 C.W.N. 667 : 7 A.L.J. 507 : 12 Bom L.R. 444 : 8 M.L.T. 57 : 20 M.L.J. 587 : (1910) M.W.N. 392 (P.C.). The decisions in Kartic Chandra v. Nilmani Mondal 32. Ind. Cas. 931 : 20 C.W.N. 686; Hukum Chund (Juscurn Boid) v. Pirthichand Lol : (1919)21BOMLR632 and Bejoy Chand Mahatab v. Tinkari Banerjee 58 Ind. Cas. 741 : 24 C.W.N. 617 do not affect the position, as they are authorities only for the elementary proposition that an appeal does not suspend the operation of a decree: Jayanti Venkayya v. Damisetti Sathiraju 64 Ind. Cas. 470 : 44 M. 714 : 41 M.L.J. 117 : 14 L.W. 180. Nor Can assistance be derived from another class of cases which were pressed upon our attention and which deal with a question of some nicety, namely, when a decree of the primary Court fixes a date for the performance of an act directed thereby, how far the dismissal of an appeal preferred against that decree way be taken to extend by implication, the period prescribed. Upon this matter, there has been some divergence of judicial, opinion. The case of Satvaji Balajirao v. Sakharlal Atmaram 26 Ind. Cas. 754 : 39 B. 175 : 16 Bom. L.R. 778 which followed the decision of the Judicial Committee in. Bhup Indar Bahadur Singh v. Bijai Bahadur Singh 27 I.A. 209 : 23 A. 152 : 2 Bom. L.R. 278 : 5 C.W.N. 52 (P.C.) supports the view that the time prescribed by the decree of the primary Court is extended by implication upon the dismissal of the appeal. To this category belong the cases of Noor Ali v. Koni Medh 13 C. 13 : 6 Ind. Dec. (N.S.) 505; Thamal v. Abhoyessuri Debi 4 Ind. Cas. 12 : 13 C.W.N. 1060; Rup Chand v. Shamsh-ul-Jehan 11 A. 346 : A.W.N. (1889) 127 : 6 Ind. Dec. (N.S.) 648; Daulat v. Bhukandas 11 B. 172 : 11 Ind. Jur. 229 : 6 Ind. Dec. (N.S.) 113; Nanchand v. Vithu 19 B. 258 : 10 Ind. Dec. (N.S.) 175; Sakhalchand Rikhawdas v. Velchand Gujar 18 B. 203 : 9 Ind. Dec. (N.S.) 643. On the other hand the cases, of Ramaswami Kone v. Sundara Kone 31 M. 28 : 17 M.L.J. 495 : 3 M.L.T. 26; Ghanshiam Lal v. Ram Narain 2 Ind. Cas. 364 : 31 A. 379 : 6 A.L.J. 493; Bhola Nath v. Kanti Chundra 25 C. 311 : 1 C.W.N. 671 : 13 Ind. Dec. (N.S.) 208; Gopala Aiyar v. Sannasi 32 Ind. Cas. 401 : 19 M.L.T. 137 : 3 L.W. 29; Faijuddi Sardar v. Asimuddi Biswas 11 C.W.N. 679 and Tara Chand v. Brojo Gopal 18 Ind. Cas. 747 : 17 C.L.J. 120 : 17 C.W.N. 457 maintain the opinion that the period of performance prescribed by the decree of the primary Court remains unaffected by the dismissal of the appeal. The balance of judicial, opinion, as the later authorities stand, is in favour of the view that when time is fixed by the lower Court for payment of money and the decree of the lower Court is confirmed on appeal; the time for payment runs from the date of the decree of the Appellate Court, though the latter decree does not expressly provide that the time for payment should be calculated from the date of the appellate decree. We need: not, for the purpose of the present case, discuss, whether the decisions which take the contrary view may be defended en principle. It has been maintained, however, on behalf, of the appellant that the result of the decision of the Judicial Committee in the case of Grish Chunder Lahiri v. Shoshi Shikhareswar Roy 27 C. 951 : 27 I.A. 110 : 4 C.W.N. 631 : 10 M.L.J. 356 : 2 Bom. L.R. 709 : 7 Sar P.C.J. 687 : 14 Ind. Dec. (N.S.) 622 (P.C.) lends some support to his contention. We have carefully examined the judgment delivered by Lord Hobhouse in the case mentioned, and we are of opinion that there is nothing in the actual decision of the Judicial. Committee which throws light upon the solution of the question raised before us. But our attention has been drawn to the subsequent proceedings reported in Girish Chancier Lahiri v. Sasi Sekhareswar Roy 33 C. 329. It appears that the decree of the Trial Court in the suit was made on the 22nd December 1883 and the decree of the High Court on appeal therefrom was made on the 28th May 1885. A portion of the decretal lands was covered in execution in 1885; the remainder (called Nadiayar) was not recovered till 1891. The Subordinate Judge allowed mesne profits up to the date of recovery of possession. The High Court allowed mesne profits for three years from the date of the decree of the Trial Court. This does not help the contention of appellant in the present case; as possession of some of the properties had been delivered in 1885, it was immaterial whether in respect of those properties, the period of three years was calculated from the decree of the primary Court or the decree of the High Court, because no mesne profits could be allowed after delivery of possession. On the of her hand, in respect of Nadiayar it would be material whether the period of three years should be taken to commence from the decree of the first Court or the decree of the High Court. The point, however, was not argued either before the High Court or before the Judicial Committee in the form now presented to us. Indeed; it was assumed that there were only two possible alternatives, namely, that mesne profits should be allowed for three years from the date of the decree of the First Court, or up to date of actual delivery of possession. The possible bearing of the decree made by the High Court was not considered and there was no judicial pronouncement upon that aspect of the matter. It is manifest that when the question is examined on principle the only solution acceptable is that the period of three years should be calculated from the date of the ultimate decree which is the only decree capable of and brought into execution. Assume that the primary Court dismisses the suit; the High Court confirms this decree; the-Judicial Committee reverses these concurrent decisions and decrees the suit; clearly, the time must run from the date of the decree of the Privy Council. Assume again, that the primary Court decrees the suit the High Court reverses the decision; the Judicial Committee restores the decree of the Trial Court; the time, must plainly run from the date of the decree of the Privy Council, as ruled by the Judicial Committee in Bhup Indar Bahadur Singh v. Bijai Bahadur Singh 27 I.A. 209 : 23 A. 152 : 2 Bom. L.R. 278 : 5 C.W.N. 52 (P.C.). Finally, as sume that the Trial Court decrees the suit; the High, Court affirms that decree and the Judicial Committee affirms the decree of the High Court; it is difficult to appreciate why the time should not; run from the date of the decree, of the Privy Council, as in the two previous instances; The common principle which governs, all the cases is, that the time runs from the date of the ultimate decree, which terminates the litigation and becomes, as soon as it is passed, the only operative decree between the parties. To assign to the term 'decree' in Section 211 of the Code of 1882 or in Order XXI, Rule 12 of the Code of 1908, different significations to suit different combinations of events would be legislation and not interpretation. We do not appreciate how the appellant can, with semblance of justice, make a grievance of the result of this view. He might have, if he had so chosen, accepted the decision of the primary Court and surrendered possession of the disputed lands to the plaintiff; he might have, indeed, so delivered possession to the successful claimant, even if he decided to take the judgment of a superior tribunal on the matters in controversy. Instead of this, he retained possession and continued to enjoy the profits of the lands, while, though defeated at every stage, he fought his opponent strenuously to the highest judicial tribunal in the Empire. He did not, after his defeat in the ultimate Court of Appeal, willingly deliver possession to the successful litigant, for, as will presently appear, even in execution proceedings, he raised an objection as to the identity of the lands, which finally proved unsustainable. No laches can be imputed to the decree-holder. The order in Council was made on the 10th August 1914. The application for delivery of possession and assessment of mesne profits was made on the 13th December 1915. Notwithstanding objection in the execution proceedings, he obtained delivery as to some of the lands on the 1st April 1917, and as to the remainder, on the 21st August 1918. There is no reason why the provisions of the law should, in such circumstances, be strained in favour; of the judgment-debtor so as to enable him to evade restitution of profits which he has appropriated. We hold, accordingly, that the view adopted by this Court in Trailokya Nath Roy Chaudari v. Jogendra Nath Ray 35 C. 1017 by the Patna High Court in Nand Kumar Singh v. Bilas Ram Marwari 43 Ind. Cas. 855 : 3 P.L.J. 116 : (1917) Pat. 377 : 4 P.L.W. 100 is well-founded on principle and places a rational construction upon the provisions of Section 211 of the Civil Procedure Code of 1882 and Order XX, Rule 12 of the Code of 1908. The Subordinate Judge must consequently be taken to have correctly held that the period of three years should be calculated from the date of the Order of His Majesty in Council and not from the date of the decree of the Trial Court; this applies to all the lands, including the area of 21 bighas mentioned later. The conclusion follows that the third ground urged by, the appellant cannot-be sustained and must be overruled.

6. As regards the fourth ground, the appellant has urged that he relinquished possession to the decree-holder on the 18th November, 1916, and should not accordingly be held liable for mesne profits subsequent to that date. It may be conceded that, as ruled in Ibbs v. Richardson (1839) 9 A. &. E. 849 at p. 853 : 1 P. & D. 618 : 8 L.J.Q.B. 126 : 3 Jur 102 : 112 E.R. 1436 : 48 R.R. 725 in no case can the plaintiff claim mesne profits for any period subsequent to an offer by the defendant to restore him possession; see also Ishan Chandra v. Ainuddin Mia 5 C.W.N. 720; Abbas v. Fassih-ud-din 24 C. 413 : 12 Ind. Dec. (N.S.) 943; Malladi Rama Somayajulu v. Brundavanam Pramayya 12 Ind. Cas. 272 : (1911) 2 M.W.N. 258 and Shambhu Nath v. Satish Chandra 66 Ind. Cas. 49 : 25 C.W.N. 369. But the Subordinate Judge has found that there was no genuine offer to restore the plaintiff to possession and no actual withdrawal from occupation by the defendant. The conclusion of the Subordinate Judge is supported by the significant circumstance that after the Amin had been directed, on the 14th February 1916, to deliver possession, the defendant, on the 5th April 1916; raised objection that the boundary had not been correctly ascertained. This objection was overruled by the Subordinate Judge. The judgment-debtor appealed to this Court, and on the 18th July 1916 obtained a reversal of the order of the Subordinate Judge. When the matter went back to the lower Court, the judgment-debtor took exception to the delivery of an area of twenty one bighas. This objection was successful. The decree-holder thereupon appealed to; this Court; on the 21st August 1918 the order of the Subordinate Judge was set aside, and the decree-holder was held entitled to take possession at that area in execution.-In these circumstances, it does not seem probable that there was a genuine surrender on the 18th November 1916. The fourth ground must thus be overruled as untenable; As regards the fifth ground, the appellant has contended that interest, should not have been allowed on mesne profits at the rate of 12 per cent., per-annum. It has not been disputed that under Section 2, Clause (12), Civil Procedure Code, the expression 'mesne profits' means those profits which the person in Wrongful possession actually received or might with ordinary. diligence have received therefrom together with interest on such profits. Consequently, interest should ordinarily be allowed on mesne profits though, as pointed out by the Judicial Committee in Grish Chunder Lahiri v. Shoshi Shikhareswar Roy 27 C. 951 : 27 I.A. 110 : 4 C.W.N. 631 : 10 M.L.J. 356 : 2 Bom. L.R. 709 : 7 Sar P.C.J. 687 : 14 Ind. Dec. (N.S.) 622 (P.C.) inasmuch as the interest forms an integral part of mesne profits, the interest is as much in the discretion of the Court as the mesne profits themselves; Harmanoje Narain Singh v. Ramprosad Singh 6 C.L.J. 472 at p. 472. The cases in the books do not seem to disclose a uniform rule as to the rate of interest allowable on mesne profits. Thus, in the case of Grish Chunder Lahiri v. Shoshi Shikhareswar Roy 27 C. 951 : 27 I.A. 110 : 4 C.W.N. 631 : 10 M.L.J. 356 : 2 Bom. L.R. 709 : 7 Sar P.C.J. 687 : 14 Ind. Dec. (N.S.) 622 (P.C.) interest was allowed at the rate of 6 per cent, as appears from the report of the subsequent proceedings in Girish Chander Lahiri v. Sasi Sekhareswar Roy 33 C. 329. On the other hand, interest appears to have been allowed at the rate of 12 per cent, in the cases of Radharaman v. Surnomoyi Debi 30 C. 566 : 7. C.W.N. 437 and Lachmi Narain v. Mazhar Abbas 35 C. 1000 at p. 1009 : 12 C.W.N. 650. In the present case the plaintiff claimed interest on the mesne profits year by year at the rate of one per cent, per month. In the written statement, the defendant characterised the claim for mesne profits as untenable and exorbitant. The Subordinate Judge has allowed interest at the rate claimed; but he has not assigned any grounds for his award. It cannot be disputed that whatever may be considered as a fair rate of interest on money since the War, during a considerable portion of the period when the mesne profits decreed in the present -case accrued (1899-1917), six per cent, per annum was considered the ordinary rate of interest and was allowed on decrees for money made by Courts; Ijjatulla Bhuiyan v. Chandra Mohan Banerji 34 C. 954 : C.W.N. 1133 : 6 C.L.J. 255 (F.B.). We must further bear in mind the distinction which has been recognised between the respective liabilities of bona fide and mala fide trespassers. Thus, although it has been held that all trespassers, whether bona fide or mala fide, are liable for mesne profits: Byjnath Pershad v. Badhoo Singh 10 W.R. 486 : 3 B.L.R. 16 (S.N.) : 1 Ind. Dec. (N.S.) 102 and Mugun Chunder v. Surbessur Chuckerbutty 8 W.R. 479 the bona fide trespasser may be allowed to deduct collection charges, while no such concession is made in favour of the mala fide trespasser: Altaf Ali v. Lalji Mal I.A. 518 : 2 Ind. Jur. 500 : 1 Ind. Dac. (N.S.) 408; Dakhina Mohan Roy v. Saroda Mohan Roy 20 I.A. 160 : 21 C. 142 : 17 Ind. Jur. 576 : 6 Sar. P.C.J. 366 : 10 Ind. Dec. (N.S.) 727 (P.C.). The same distinction has been recognised in other systems; see Livingstone v. Rawyards Coal Co. (1880) 5 A.C. 25 at p. 30 : 42 L.T. 334 : 28 W.R. 357; Peruvian Guano Co. v. Dreyfus (1892) A.C. 166 : 61 L.J. Ch. 749 : 66 L.T. 536 : 7 Asp. M.C. 225; Glenwood Lumber Co. v. Phlilips (1904) A.C. 405 : 73 L.J.P.C. 62 : 90 L.T. 741 : 20 T.L.R. 531; Green v. Biddle (1823) 8 Wheaton (U.S.) 1 : 5 Law. Ed. 547. In the present case, the appellant held occupation of a considerable tract of the disputed land under a title which was established in a contested litigation; and although he subsequently overstepped to some extent the boundaries determined therein he may well be considered a bona fide and not a mala fide trespasser. We are of opinion that, in all the circumstances of the case, the interest on the mesne profits should be calculated at six per cent. instead of twelve per cent, per annum. The fifth ground is accordingly allowed in part. As regards the sixth ground, numerous objections were vigorously urged by both sides against the method of enquiry adopted by the Commissioner and approved by the Subordinate Judge for ascertainment of the mesne profits. Indeed, it looked probable at one stage bi the arguments that there was no escape from a further enquiry which was likely to be of a protracted character. The parties, however, have come to a settlement on this part of, the case. They have agreed that the assessment should be made on the following basis:

Nature of land Area

Big. Cot. Ch.

Doem .. 3 12 12

Dofasli .. 2353 10 8

Some .. 83 0 0

__________________________

2440 3 4

7. The parties have further agreed that 600 Hgkas out of this area will be assessed at four annas per bigha the remainder will be assessed at twelve annas per bigha. The amount, as determined by the Court below, will be altered accordingly.

8. The result is, that the decree made by the Subordinate Judgement be modified in two respects, namely, first, as to the area and rates, and, secondly, as to. the interest; subject to variation, in there two respects, the decree made by the Subordinate Judge will stand, including the order as to costs of; the proceedings in the lower Court and the interest on the total amount awarded., Each party will pay his own costs in this Court. A single self-contained decree will be drawn up in the two appeals after the amount due under this, judgment shall hay& been calculated.


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