1. These five appeals are by the defendant and are directed against five final decrees for mesne profits passed against him by the Subordinate Judge of Rajshahi. The Commissioner appointed to ascertain mesne profits reported the aggregate amount of mesne profits in the five suits to be Rs. 17,273-8.0, but the learned Subordinate Judge has increased it considerably, his figure after amendment of two of the decrees amounting to Rs. 37,395-7-6. The plaintiffs and the defendant are co-sharers of the revenue paying estates which formed the subject-matter of the five suits (Title Suits Nos. 79 to 83 of 1911), and although their shares were slightly different in the different properties we may take it roughly that the share of the plaintiffs in zamindari and patni right is 9 1/2 annas and the defendant is the owner of the remaining 6 1/2 annas in zamindari right. There were in the past disputes and differences between them as regards the common enjoyment of joint khas lands. These were settled in the year 1899 by the plaintiffs granting settlement in kaimi mokarari right of their share in specific lands to the defendant. Kabuliyats were executed by the defendant in favour of the plaintiffs evidencing these settlements. The lands which are the subject-matter of these leases were then mostly unreclaimed, and the defendant began reclamation work. In 1911 the plaintiffs instituted the five suits mentioned above for recovery of possession of lands which according to them were in excess of the kabuliyat lands and for mesne profits. Their ease was that in 1910 they came to know that the defendant had encroached upon the khas lands of the par. ties under colour of their title under the said kabuliyats of the year 1899. They accordingly prayed for khas possession in their 9 1/2 annas jointly with the defendant of the encroached lands and for mesne profits for the period beginning from the date of dispossession till recovery of possession. These five suits were consolidated and decreed in part by the learned Subordinate Judge on 23rd June 1914. The decrees directed/deli, very of khas possession to the plaintiffs jointly with the defendant and it was further directed in each suit that the plaintiffs
do get a decree for mesne profits from before the institution of the suits and up to recovery of possession under C1s. (b) and (c) of Order 20, Rule 12, Civil P.C. and that the amount of the mesne profits be ascertained at a later stage of the suit.
2. Five appeals were preferred to this Court against the five decrees passed by the learned Subordinate Judge, and in these appeals this Court by its judgment and decrees dated 29th January 1918, confirmed the decrees of the Subordinate Judge subject to some modifications. These modifications related to some plots of lands which the Subordinate Judge had. found to be outside the kabuliyats of 1899, but which this Court found to be included in them. The preliminary decrees for mesne profits as made by the Subordinate Judge were confirmed. The plaintiffs took delivery of possession through Court on 19th December 1920 of the subject- matter of Suit No. 83, on 19th February 1922 of the subject-matter of Suits Nos. 80 and 82, and on 21st February 1922 of the subject-matter of Suits Nos. 79 and 81. Thereafter in 1922 they applied for ascertainment of mesne profits, and a commissioner was appointed to estimate them and to make a report to Court. The Commissioner submitted his report on 9th October 1928. Written objections were filed both by the plaintiffs and the defendant. The said objections were determined after about five years, i.e. in 1933, the judgment of the Subordinate Judge being delivered on 19th August 1933. The subject-matter of Suit No. 83 of 1911 which has given rise to First Appeal No. 26 of 1935 is a jalkar. The main point raised in this appeal being different from those raised in the other four appeals, the said appeal will be dealt with separately. The points raised in the other four appeals are common, except that there are additional points in First Appeal No. 138 of 1934 which is against the decree for mesne profits passed in Title Suit No. 80 of 1911, and in First Appeal No. 139 of 1934 which is directed against the decree passed in Title Suit No. 82 of 1911. The common points urged by the appellant's advocate Mr. Bagchi are the following : (1) that mesne profits ought not to have been assessed on the basis of the value of paddy, but on the basis of forest produce; (2) that no mesne profits ought to have been assessed for any period anterior to the suit, (3) the mesne profits ought to have been assessed up to three years of the date of the High Court's decrees and not up to the date of delivery of possession; (4) that if the price of paddy be taken as the basis for the calculation of mesne profits, the quantity of paddy that the lands were capable of producing ought to be taken as estimated by the Commissioner; (5) the area on which mesne profits are to be assessed must be taken to be much less than the Commissioner's estimate; (6) that 10 per cent. ought to be deducted for collection charges and 5 per cent. more on account of costs of manuring the land and for gin for cutting paddy; (7) that no interest ought to be added to the profits and that at any rate the Court below should not have added interest at the rate of 12 per cent. up to the date of the High Court decree and (8) that the method of calculating interest adopted in the case is wrong.
3. The first point urged before us is an entirely new point. It is moreover inconsistent with the position taken up by the defendant in the lower Court. In the lower Court he all along assumed the position that the assessment of mesne profits ought to be on the basis of the quantity of paddy produced on the land and its value. On these points he examined a large number of witnesses. Mr. Bagchi now says that all the lands in suit were covered with forest and that they have been reclaimed and brought under cultivation through the agency of his client or his adhiars. He refers to the definition of mesne profits in the Code of Civil Procedure and draws our attention to the qualification that mesne profits 'shall not include profits due to improvements made by the person in wrongful possession.' He says that crops of paddy have been produced solely by reason of the improvements made by his client. The evidence in this case adduced by the defendant himself discloses that the cost of reclamation and of making the lands fit for cultivation was as low as Rs. 4 per bigha (D. W. 9, p. 465). This shows that the lands in suit were not covered by dense forests, but were more in the nature of waste lands, i.e. culturable patit. Possibly all that had to be done was to clear the weeds and to level the lands to some extent. It cannot be said therefore that the outturn of paddy crops was due to the improvements of the defendants or his agents. We cannot even say on the evidence that the yield was more because of the alleged improvements made by the defendant. There is no evidence that the defendant raised any embankment or other protective works or made any special arrangement for irrigation, except the slight evidence that in village Hypopather, an attempt was made to erect a bund for preserving water, but the work has been left incomplete. He simply cultivated with paddy through adhiars what in its natural state was culturable, and only ordinary and customary methods of cultivation were adopted by his adhiars. Apart from the fact that the contention raised a point which depending as it does upon investigation into facts, cannot be allowed to be raised for the first time in appeal, we do not, on such scanty materials as we have on the record, see any merit in the contention. We accordingly overrule it.
4. The second and third points urged relate to the period for which mesne profits are payable. With regard to the period ad quem the argument is of a twofold character Firstly, that no period for which mesne profits are to be assessed being definitely fixed by the preliminary decrees, no mesne profits can be awarded for the period anterior to the suit; and secondly, that there is no reliable evidence that the whole of the lands for which mesne profits have been assessed became fit for cultivation before suit. In connexion with this second point, we shall also deal with the fifth point indicated above, namely the extent of the culturable area. The Commissioner and the Court have calculated mesne profits from 10th May 1910, the date on which the plaintiffs came to know of the encroachments. In the plaints the plaintiffs claimed mesne profits from the date of dispossession till delivery of possession, and the decrees gave them mesne profits anterior to the suits. Their case was that the dispossession had been some time before the suit, but they only came to know about it in the year 1910, a year before the institution of the suits. To defeat the plaintiffs' suit on the ground of limitation the defendant pleaded that he had reclaimed the lands in suit more than 12 years before suit, and led evidence in support of his plea. His plea of limitation was negatived by the Court and the decrees were passed. He now turns a somersault. The Commissioner went to the locality and found the process of reclamation to be gradual. On the evidence which was before him he came to the conclusion that the lands in respect of which he assessed mesne profits had been made fit for cultivation and were actually being cultivated at least from 10th May 1910. In each village he found that some areas were still waste and he did not take those into consideration in the assessment. The plaintiffs pressed the objection that the Commissioner had shown more lands as waste than were actually so, but it does not appear that the defendant challenged before the Court the Commissioner's figures. Nothing convincing has been placed before us to show that the Commissioner's or the Court's findings regarding the time when the lands assessed to mesne profits were first cultivated or as to the extent of lands brought under cultivation are wrong. We accordingly affirm those findings.
5. The preliminary decrees gave the plain. tiffs mesne profits before suit. They did not specify the exact date from which mesne profits were to be assessed. These decrees have been drawn up in accordance with the form given as Form No. 23 in Appendix D, Civil P.C. In our judgment the decrees entitle the plaintiffs to mesne profits before suit for such period as the law entitles them to, that is to say, from three years anterior to the suit (Art. 109 Limitation Act), if profits had been received or might have been received by the defendant within that period. The finding is that profits were received by the defendant from the 10th May 1910, and the claim from that period is not barred by limitation. With regard to the period ad quern, the preliminary decrees directed assessment of mesne profits up to the date of delivery of possession. This portion of the decrees was not attacked by the defendant when he appealed to this Court and has accordingly become final. He cannot now raise the point that mesne profits ought to have been assessed up to 20th January 1921, i.e. up to three years from the passing of the High Court decrees. In fact this point was not urged in the lower Court, and we take it, was abandoned in view of the terms of the preliminary decrees. We accordingly overrule the 2nd, 3rd and 5th points urged by the appellant.
6. The next point for consideration is, what quantity of paddy must be taken as the yield per bigha. The evidence is that the lands in suit as also the adjoining lands were cultivated on bhag system. The plain-tiffs have lands in khas possession near the lands in suit which they have been cultivating in bhag for many years.' The remarkable feature of the case is that neither the plaintiffs nor the defendant have produced any documentary evidence in the shape of collection papers to prove what quantity of paddy per bigha was delivered by the adhiars during the years under assessment. They have on the other hand rested their case entirely upon oral evidence much of which is worthless. In this state of the evidence the Commissioner and the lower Court could only proceed upon the basis of assessing what the defendant might with ordinary diligence have received. The culturable lands are of three classes, classified according to their productive powers, e. g. Kandar, Akandar and cultivable Danga. Relying mainly upon the evidence of P. W. 21, the Commissioner came to the conclusion that the average produce per bigha of Kandar, Akandar and Danga lands which had been reclaimed years ago was respectively 5 mds. 4 mds. and 3 mds. the average produce of the three classes of land taken together being & mds. per bigha. The Commissioner also referred to the evidence of P. Ws. 1, 15, 33 and 37. He then states that in recently reclaimed lands the yield would be less, and accordingly estimated the average yield of the three classes of lands in suit to be 3 mds. per bigha, i.e. he took 4 mds. per bigha for Kandar, 3 mds. per bigha for Akandar and 2 mds. per bigha for Danga lands. (Their Lordships then considered some evidence and proceeded further.) In this state of the evidence we are of opinion that the Commissioner's estimate is more correct when he took 4 mds. 3 mds. and 2 mds. as the average yield per bigha of Kandar, Akandar and Danga lands respectively. In calculating the amount of mesne profits these figures of the Commissioner must accordingly be taken. There is now no dispute as to the price of paddy which must be taken at Rs. 2 per maund. The decrees of the lower Court must be modified accordingly.
7. The next question for our consideration is what deductions from the gross profits ought to be allowed in calculating the amount of mesne profits. The lands being let out in bhag system, the adhiar took half the produce as the price of labour. The kabuliyats on record prove that the adhiar supplied the seeds, cultivated the land, reared the crop, reaped them in the presence of the landlords' men and had to carry them free of cost to the landlords' kutchery (Ex. Al-P. 10 Pt. 2 of the supplementary paper book). For all this he was to get half the produce. The remaining half represented the landlords' share, and the point for consideration is what deductions ought to be made from this half for assessing mesne profits. The Commissioner allowed five per cent. on the total produce as reclamation charges. That has also been allowed by the learned Judge, and we do not find any tangible evidence on which we would be justified in increasing the percentage. The Commissioner allowed 20 per cent. of the gross produce for risk of cultivation, collection charges and for the costs of supplying manure, etc. by the landlord. The Judge has only allowed five per cent. on the gross produce for the risk of cultivation. This works out at 10 per cent of the landlords' share. We think this is a fair percentage. The learned Judge did not allow any deduction on account of manuring charges, etc. and on the evidence we think he is justified in rejecting the defendant's claim on this head. He has not allowed any deduction on account of collection changes and has assigned two reasons, namely (1) that the defendant being not a bona fide trespasser, that is, the dispossession by him being high handed, he is not entitled to deduct collection charges, (2) that there is no evidence that the defendant had to incur any expenses for getting the paddy from the adhiars, who according to contract had to reach the landlord's share of the paddy to his kutchery free of cost.
8. We do not consider any of these reasons to be sound. Assuming for the present that the dispossession of the plaintiffs by the defendant was wanton and malicious, the question is whether in calculating the amount of mesne profits collection charges are to be deducted from the gross realizations. The distinction between cases of bona fide trespass and wanton trespass was first drawn by the Allahabad High Court, and it was stated that in the former case, allowance for collection charges is admissible, but not in the latter. The matter was ultimately referred to a Pull Bench of that Court : Altaf Ali v. Lalji Mal (1875-77) 1 All 518 (FB). The Court was divided in the proportion of three to one: Stuart C. J. held that even in the case of malicious and wanton trespass, collection charges are to be deducted in assessing mesne profits. The majority of the Judges held otherwise. The case was decided when the Civil Procedure Code in force had no definition of mesne profits, and the proposition that in the case of wanton trespass the Court may refuse to sanction collection charges was rested on the authority in Wood v. Morewood (1841) 3 QB 440. The next case of the same Court, where the point was discussed in some detail, was decided when the Civil Procedure Code of 1882 was in force, which contained a definition of mesne profits: Dungar Mal v. Jai Ram (1902) 24 All 376. The decision of the majority in the aforesaid Pull Bench case was followed, and the decision in Mao Arthur v. Cornwall (1892) AC 75 was subjected to minute analysis. The head-note of that case was said to be misleading. A decision of Strachey C.J. (Abdul Ghafur v. Raja Ram (1901) 23 All 252) was distinguished, and a passage from Girish Chandra Lahiri v. Shoshi Shikharaswar Boy (1900) 27 Cal 951 divorced from its context was quoted to support the proposition that in cases of wanton trespass, the Court would be right in disallowing collection charges. No reference was made to the statutory definition of mesne profits. In Mao Arthur v. Cornwall (1892) AC 75 collection charges were actually deducted in assessing damages. It may be that the trespass was not an aggravated one, but Lord Hobhouse cannot be taken to have laid down the proposition that in the case of aggravated trespass, collection charges or the costs of management was not an admissible allowance.
9. The distinction so drawn by the Allahabad High Court was introduced without critical examination in this Court in Raja Sasi Kanta v. Raja Sarat Chandra (1921) 8 AIR Cal 699 at p. 430. The point did not arise at all on the fifth ground urged by the appellant in that case, which raised the question of the rate of interest only, and the observation that in the case of mala fide trespass no collection charges should be deducted in assessing mesne profits is an obiter dictum. For this obiter dictum reliance was placed on the decision of the majority in the Full Bench case in Altaf Ali v. Lalji Mal (1875-77) 1 All 518 (FB) referred to above and on the decision of Lord Macnaghten in Dakshina Mohan v. Sarada Mohan (1894) 20 IA 160 which was a case of a different type altogether. In the last mentioned case the plaintiff got a decree for possession in the High Court and took possession in execution of that decree, while an appeal against the High Court decree was pending before the Judicial Committee of the Privy Council which ultimately reversed the High Court decree. While the plaintiff was thus in possession, he was obstructed by the defendant with the result that he could only collect trifling sums from the property and had to pay Government revenue from his own pocket to preserve the property from sale. This amount he sought to recover by suit. His possession was lawful for he obtained it in execution of a decree, till then a good decree, in his favour, and so he could not be called a mala fide trespasser. The High Court dismissed his suit, remarking that though he could use the outgoings for reducing mesne profits, he could not recover them as plaintiff in a suit. The Judicial Committee did not agree with the last part of this proposition. The case did not relate to collection charges and was not a case of mala fide trespass at all. The Judicial Committee had not to consider a case of mala fide trespass, and its decision cannot even by implication be taken as laying down the proposition that a mala fide trespasser is not entitled to claim deductions for costs of management in an assessment of mesne profits against him.
10. It is also pertinent to remark that even in the case of mala fide trespass the majority of the Judges in the Full Bench case in Altaf Ali v. Lalji Mal (1875-77) 1 All 518 (FB) held that revenue and ground rent are admissible deductions. The fundamental point that mesne profits are after all profits which the wrongdoer had intercepted from the lawful owner, profits which he, the wrongdoer, actually realized or might with ordinary diligence have realized, is lost sight of in the above mentioned cases, and the issues clouded by drawing inferences, not necessary inferences, from English and Privy Council decisions. The Allahabad decisions are not binding on us nor is the obiter dictum in Raja Sasi Kanta v. Raja Sarat Chandra (1921) 8 AIR Cal 699, and the proposition laid down in these cases cannot be taken to be good law, being inconsistent with the definition of mesne profits given in the Code, and moreover must be taken to be overruled by the Judicial Committee in Secy. of State v. Saroj Kumar (1985) 22 AIR PC 49 at p. 62. On the facts we also hold, in disagreement with the learned Subordinate Judge that. the dispossessions from the lands were-not wanton and malicious. The plaintiffs granted a lease of waste lands to the defendant. He kept within the boundaries of the grants, but was obliged to restore possession to the plaintiffs on the ground that the area mentioned in the kabuliyats and not the boundaries would prevail.
11. The second ground given by the learned Subordinate Judge also does not appeal to us. The evidence discloses that in the locality a landlord who had let out lands on bhag system on similar terms had to incur costs of collection. The watchman alone in whose presence the paddy was to be cut and divided by the adhiars had to be paid two and half per cent. by the landlord from his share, and there are his other expenses which can be legitimately called collection expenses. Even when there is no evidence as to the actual amount spent for collection, the customary rate in India is 10 per cent: Secy. of State v. Saroj Kumar (1985) 22 AIR PC 49 at page 66. We therefore think that in the present case, the defendant is entitled to a deduction of an additional 10 per cent. of the value of gross produce on account of collection charges. That is, instead of 25 per cent. deductions allowed by the Commissioner and 10 per cent. allowed by the Subordinate Judge, he is to have 20 per cent. deduction. The decrees of the lower Court must also be thus modified.
12. The only other question that remains is the question of interest, and two questions arise under this head, viz. (a) rate of interest and (b) the mode of calculation. Mesne profits now include interest, but it is settled law that the Court may in its discretion either refuse to give interest or give interest at such a rate as it thinks fit. The learned Subordinate Judge has given interest (1) at 12 per cent. per annum from 10th May 1911 to the date of the High Court's decrees (29th January 1918), (2) no interest from that date till the date of application for ascertainment of mesne profits (12th June 1922), (3) six per cent. interest from that date till the Commissioner appointed to ascertain mesne profits submitted his report (9th October 1928) and (4) 3 per cent. from that date till the date of the decree. Then from date of the decree interest is to run at 6 per cent. on the decretal amount. We do not think that the rate of interest should be 12 per cent. for the first period; six per cent. under existing conditions is the usual rate: see Secy. of State v. Saroj Kumar (1985) 22 AIR PC 49 at pages 62-63. We do not find any special circumstances which would either disentitle the plaintiffs to any interest or entitle them to get interest above the usual rate, nor are we satisfied that there are any valid reasons for making any distinction between different periods for calculation of interest: see Kedar Nath Goenka v. Babu Bageshwari Prasad Singh . The learned Subordinate Judge disallowed interest for the second period on the ground that the plaintiffs made delay in applying for possession. They were entitled under the law to wait till the last day of three years from the date of the appellate decrees. There was nothing to prevent the defendant from surrendering possession either, if he so wanted. The aforesaid reason of the learned Subordinate Judge accordingly does not appear to be sound. In reducing the interest to three per cent. for the fourth period, the learned Subordinate Judge has said that the plaintiffs were guilty of laches in not bringing up the Commissioner's report for consideration by the Court earlier. An examination of the order sheet, however, discloses that the plaintiffs were not entirely to blame. They applied for adjournment on some occasions, the defendant also so applied; but the consideration of the report of the Commissioner was delayed mostly on account of an abortive attempt at compromise through the intervention of the Collector of Maldah and also on account of the Court being engaged in other cases. The plaintiffs ought to have, in our judgment, been given by the Court below interest at the rate of 6 per cent. for this period also.
13. This raises the question whether they are entitled to have these modifications in the rate of interest made in their favour in the absence of any memoranda of appeals or of cross- objections by them. One fact is clear that a decision by us in their favour would not increase the total amount of meane profits decreed in their favour by the lower Court. Subject to this, we are of opinion they can attack the judgment relating to their claim for interest without filing memoranda of cross-objections. The principle has been thus formulated by Srinivasa Ayyar J. in Sri Ranga Thathachariar v. Srinivasa Thathachariar (1927) 14 AIR Mad 801 at p. 875. When an item in an account appearing in the decree of the lower Court is reduced by the appeal succeeding, the respondent without filing any memorandum of cross-objection can support the said decree by showing that the lower Court had wrongly decided against him on other items, but it is not open to the respondent to have adjudicated by the Appellate Court rights or causes of action which have been decided against him in the lower Court without filing an appeal or memorandum of cross-objections. As interest is an integral part of mesne profits the plaintiff-respondents are entitled on the said principle to maintain the amount of mesne profits decreed to them by the lower Court by a relative variation of the constituent elements without filing memoranda of cross-objections. They are entitled to urge that if interest be reduced by the Appellate Court, the profits may be assessed at a higher figure, if the evidence supports it, provided that the total does not exceed the amount decreed as mesne profits by the lower Court, and vice versa. This involves no challenge to a different right or a different cause of action adjudicated against them by the lower Court which is not under challenge in the appeal at the instance of the appellant. We accordingly direct that the plaintiffs should have interest on the assessed profits at the rate of 6 per cent. for all the periods mentioned by the Subordinate Judge, subject to the limits indicated.
14. Regarding the mode of calculation of interest, the position stands thus : Simple interest has been allowed to be calculated year by year. This is a sound principle, for when profits are earned or might have been earned by the wrongdoer yearly, interest on those profits must be calculated yearly and year by year. It is however urged by Mr. Bagchi that this is against the decision of the Judicial Committee in Hurro Doorgo Chaudhrani v. Maharani Surnt Soondari Debi (1882) 8 Cal 332. That case does not support Mr. Bagchi's contention. There a decree was passed before the Civil Procedure Code of 1882 came into force. The decree simply stated that the plaintiff was to get mesne profits for a certain period to be ascertained in execution with interest at six per cent. from the date of ascertainment of mesne profits. The executing Court added up the realizations from the tenants for that period and allowed interest at six per cent. on the sum total from the date of the ascertainment till recovery or payment of the sum so ascertained. On appeal the High Court held that the plaintiff must be given compensation for being kept out of his profits and so directed that interest at six per cent. should be added year after year to each year's net realizations. This part of the judgment of the High Court was set aside. The Privy Council pointed out that the executing Court could not add to the decree. It became necessary therefore to consider the meaning of the words 'mesne profits' as used in the decree. The Civil Procedure Code of 1877 did not make interest on profits a part of mesne profits, and their Lordships accordingly held that interest on profits was not a part of mesne profits. The loss of interest year by year upon these profits, they said, was merely damages suffered by the plaintiff. That case is certainly no authority for the proposition that where interest is claimable under a decree for mesne profits, such interest cannot be calculated year by year on the yearly profits. It only laid down in accordance with the law then in force that mesne profits did not include interest on profits, a position which has since been altered by the amendment of the definition of mesne profits in the Civil Procedure Code of 1882. The decision in Hurro Doorgo Chaudhrani v. Maharani Surnt Soondari Debi (1882) 8 Cal 332 was explained by a Division Bench of this Court in Radha Ram Munshi V Surnomoyi Debi (1903) 30 Cal 506 in the manner indicated by us, and as the decree for mesne profits in the last mentioned case was passed after the Code of 1882 had come into force, interest was added year by year to the yearly profits, to arrive at the amount of mesne profits payable by the defendant. We accordingly overrule this point urged by Mr. Bagchi.
15. Three special points have been taken, two in Appeal No. 139 of 1934 which corresponds to Suit No. 82 of 1911, and the third in Appeal No. 138 of 1934 which corresponds to Suit No. 80 of 1911. They are respectively thus: (1) (a) The profits in respect of the lands of the Deulbati garden have been assessed twice, (b) that no mesne profits ought to be assessed in respect of that garden, and (2) no mesne profits ought to be assessed on any portion of the lands of Mouza Dhatore, the lands of the said village being not in suit. Regarding the Deulbati garden, the first submission to us is that in assessing the quantity of paddy that might have been raised. the area of the Deulbati garden was taken into account by the Commissioner, who again assessed the value of the fruits at Rs. 50 per year. The relevant portion of the Commissioner's report is at p. 564. We cannot say that in the cultivated Danga of 233-B 14.C of Deulbati the area of the garden was included. Apparently it was not, for the 233 bighas 14 cottas was paddy land. The next point is that the mangoes of the garden were of a very inferior quality which had no market. The Commissioner saw 19 fruit bearing trees and the positive evidence is that in some years the fruits of these trees were sold and sold for sums between Rs. 50 and Rs. 60. That evidence is at pp. 351, 353 and 369. These points urged by the appellant are accordingly overruled. The next point is whether mesne profits could be assessed on the lands of Dhatore. The Commissioner proceeded upon the footing that 83 bighas odd of Dhatore was included in the decree. He found 50 bighas waste and 33 bighas odd culturable and assessed mesne profits on the latter. The plaintiffs took possession of the said 83 bighas of Dhatore in execution of their decree without any objection from the defendant. The Commissioner for ascertainment of mesne profits measured and classified the said area in the presence of the defendant's agent without any objection. No such ground as is now urged was taken in the written objection to the Commissioner's report filed by the defendant, and it is only at the hearing that he urged the ground that these lands ought to be excluded from calculation on the ground that the plaintiffs had no decree in respect of them.
16. In the plaint of Suit No. 80 as originally filed the plaintiffs stated in paras. 3 and 4 that the defendant had encroached upon the khas lands of Mouza Dhatore. In item 1 of the schedule the quantity of the lands of Mouza Dhatore and the boundaries thereof which according to the plaintiffs had been encroached upon was stated. Sixteen other items described the lands encroached upon in other mouzas. Of these mouzas Kaima and another mouza Raghab-bati adjoined Dhatore. There was a local investigation by an Amin and thereafter a petition for amendment of the plaint 'was put in by the plaintiffs. Paras. 3 and 4 of the plaint were left untouched, but item 1 of the schedule was sought to be replaced by another item which related to some lands of Mouza Dumuria (Pt. I, p. 17 of the Supplementary paper book). This amendment was allowed. Mr. Bagchi's contention is that by this amendment the lands of Dhatore went out of the suit. If we con. fine ourselves only to the schedule of the amended plaint and refuse to look into the body of the plaint and if nothing else had happened thereafter, Mr. Bagchi's contention would seem to have force. But at the hearing other things happened. The defendant claimed the whole of 428 bighas 7 1/2 cottas of land found to be in his possession by the Amin as part of his 100 bigha tenancy of Dhatore on the ground that the boundaries of his kabuliyat of 1899 for the same covered the said area. The Subordinate Judge referred to the kabuliyat and pointed out that no northern boundary was specified in it, the western-boundary being repeated twice. He held that the defendant was entitled to only 100 bighas as appertaining to his tenancy under the plaintiffs, which area was bounded on the south, east and west by the Nitpore Road, Dhala Kandar and Pakua Saran respectively. He directed the Amin to show by a line how far the defendant's said jote would extend to the north so as to include only 100 bighas. The Amin drew the line as directed by the Court on his map and marked it as gagha. The Court found that the defendant was only entitled to lands from the Nitpore Road in the south up to the line ga gha to the north, and for the rest, that is to 328 odd bighas to the north of line ga gha, plaintiffs were entitled to a decree. These 328 odd bighas according to its findings included 83 bighas 18i cottas of Dhatore, and khas lands of Mouzas Kaima and Raghabbati (pp. 92 and 93, part 1, book A). The Amin's map was made a part of the decree. This Court on appeal did not modify this part of the decree. It only dismissed the plaintiffs' claim to another block of land marked as Block B in the Amin's map for which the Subordinate Judge had given the plaintiffs a decree. We accordingly hold that 83 bighas odd of Dhatore was adjudicated to belong to the plaintiffs, and there is no substance in Mr. Bagchi's contention.
17. The result of our findings in Appeals Nos. 137 to 139 of 1934 and 27 of 1935 is that the decrees for mesne profits passed by the learned Subordinate Judge in Title Suits Nos. 79, 80, 81 and 82 should be modified in the following manner only: (i) the gross produce of paddy must be estimated at 4 mds. 3 mda. and 2 mds. per bigha for Kandar, Akandar and cultivated Danga respectively and the price should be calculated at Rs. 2 per maund: (2) from the gross produce 20 per cent. must be deducted as for collection charges, costs of reclamation and risk of cultivation, that is to say, 30 per cent. of the gross produce must be taken to represent the landlords' net share of the produce. Of this the plaintiffs would be entitled to 91 annas share or such other shares as they are entitled to under the decrees passed in the said four suits; (3) to the yearly profits payable by the defendant, to the plaintiffs as calculated in accordance with the above directions, simple interest at the rate of 6 per cent. per year calculated year by year should be added. On the mesne profits so ascertained interest would run at the rate of 6 per cent. from the date of the Subordinate Judge's decree till realization.
Appeal from Original Decree No. 26 of 1935.
18. Turning now to Appeal No. 26 of 1935 corresponding to Suit No. 83/31 we have already stated that this relates to a jalkar, and it is the common case of both sides that mesne profits should be assessed in respect of this jalkar not on the basis of the actual yield of fish from the jalkar, but on the basis of rents realized. In support of the plaintiff's claim the plaintiffs rely on a kabuliyat, which is Ex. 5 in the case, said to have been executed by one Sahabat Mandal in their favour on 18th January 1922, that is to say more than a year after the plaintiffs took delivery of possession of the jalkar in execution of their decree. This kabuliyat which is a registered document was for a period of three years and showed a rental of Rs. 450 per annum. The Commissioner was not satisfied that this represented a genuine transaction at all and declined accordingly to act on it. There being no other evidence on the side of the plaintiffs, the Commissioner proceeded to act on what might be taken to be an admission on the side of the defendant. The defendant gave evidence to show what the total rent was which had been realized from all the beels, belonging to the parties which were let out in ijara for the years 1321-1331, and also proved that since 1331 when possession was taken by the plaintiffs of the beels which were the subject-matter of this suit, this annual rental was reduced to Rs. 185 per year. The Commissioner was of opinion that this remission was due to the fact of the plaintiffs' share in the beels in dispute being separated and taking that as the average gross profits, he allowed the plaintiffs a decree for mesne profits at this rate, after making a deduction of ten per cent. as collection charges. In other words, mesne profits were allowed at the net rate of Rs. 166 per year for the period under assessment, as to which it may be stated, there is no dispute between the parties.
19. The learned Subordinate Judge did not accept the findings of the Commissioner, and in disagreement with him he held that Ex. 5, the kabuliyat, on which the plaintiffs relied was a genuine transaction, and that though it was for a period subsequent to the delivery of possession still the rate mentioned in it was a fair rent which could be taken to represent the average mesne profits for the period in question. In support of his view the learned Subordinate Judge mainly relied upon the evidence of Sahabat Mandal, the executant of the kabuliyat. We have been taken through that evidence and we cannot say that we are at all impressed by it. In the first place, it is admitted by this witness that this was the first time that he was taking a lease of a fishery. He had no idea of fisheries before or of the profits which could be expected from leases of fishery. The document is no doubt a registered one, but that is all that can be said in support of its genuineness. It is rather extraordinary that a person in the position of this witness should take upon himself a liability to the extent of Rs. 450 per year without previously acquainting himself with the nature of the business or with reasonable expectations of profits from this kind of business. Secondly, this witness admits in his cross-examination that he held the receipts for payments of rent alleged to have been made by him under this document, but none of these receipts was produced by him. It was certainly incumbent upon the plaintiffs, if they relied upon this kabuliyat as the only evidence in support of their claim, to have produced these rent receipts and other satisfactory evidence of actual payments of rent to show that the kabuliyat was acted upon. That however was not done. Then we have the further admission from this witness that he took this leave because jalkars were increasing in value. As a matter of fact, he states that he took a renewal of the lease on the expiry of the first term of three years at an enhanced rental of Rs. 500; in other words, that in the course of three years rent of the jalkar increased by Rs. 50 per year. It is quite evident that on this evidence, accepting that as true which we do not, it is impossible to take Rs. 450 as the fair net rental of the jalkar for the period under assessment. On behalf of the plaintiffs it was urged that this lease was taken by this witness as a result of a bidding held by the plaintiffs and that it was admitted by one of defendant's own witnesses that there was such a bidding. It is true that one of the witnesses on behalf of the defendant, D. W. 3 at p. 315 of the paper book, says that he was present at the auction, but he is unable to say what was the highest bid offered or accepted. It may quite be that there was some sort of auction held by the plaintiffs, but it does not follow that the rent recorded in the kabuliyat represented the highest bid or that it was the actual rent which it was intended to realize from the tenant. In the absence of any corroboration of the evidence as to rent or as to payment of rent, we are unable to accept the evidence of this witness regarding the genuineness of this kabuliyat.
20. It is also to be observed that the plaintiffs did not produce their own collection papers which would have gone to show that rent was actually realized under this kabuliyat. No reasons have been given as to why this necessary evidence was withheld from the Court. The learned Subordinate Judge was largely influenced in the view which he took by the fact that the defendants on their side did not produce any collection papers to prove the profits during the period of dispossession. The defendants might or might not have been to blame in this respect. But that does not, in our opinion, help the plaintiffs' case, if it is otherwise weak or unacceptable. It is not necessary for us to express any opinion as to whether the onus lies upon the plain-tiffs in a case of this kind, but the fact remains that the evidence which the plaintiffs offered is wholly unsatisfactory and insufficient. On the other hand, we have a figure as to fair rent which may be taken to represent an admission on the part of the defendant. In support of this case the defendant gave oral evidence of persons-who were supposed to have been the ijaradars of the fisheries during the period of dispossession. This oral evidence, we may say at once, does not by itself carry any conviction whatever and may be discarded as wholly worthless. But although this is so, there were certain considerations which were put forward by the Commissioner in his report to show that the plaintiffs' figure could not be at all accepted as a reasonable estimate of the probable profits from the jalkar. The learned Subordinate Judge has not dealt with these points at all in his judgment. We agree with the learned Commissioner in holding that on the evidence Rs. 450 per year cannot be regarded as a reasonable estimate of the profits. At the same time we are also doubtful in our mind as to whether Rs. 185 is a reasonable figure either. But, as we have said, in the absence of any certain data, we are left with no other alternative but to accept the figure of Rs. 185 as the basis of calculation. The learned Commissioner allowed 10 per cent. deduction as collection charges from the figure of Rs. 185 a year. We do not think, however in the circumstances stated, that the defendants should be granted this reduction, as we are more than satisfied that Rs. 185 is much below the proper amount of mesne profits of the jalkar.
21. We, accordingly, hold that mesne profits in Suit No. 83 should be calculated for the period mentioned in the decree at the rate of Rs. 185 per year. This will carry interest at the same rate and calculated in the same manner as in the decrees of the other appeals. This appeal is thus allowed in part. So far as the decrees of the Subordinate Judge for costs in that Court are concerned, the plaintiffs will get the entire costs of the Commissioner and as regards other costs the parties will be entitled to costs proportionate to their success in this Court in all the five suits. As regards the costs of these appeals, having regard to the divided success of the parties and to the circumstances of the case we direct that the defendant appellant should get one- third of paper book costs. With regard to other costs, each party will bear its own costs in this Court. Cross objections are not pressed and are dismissed but without costs.
R.C. Mitter, J.
22. I agree.