Banerjee and Rampini, JJ.
1. Two questions have been raised in this appeal on behalf of the defendants, appellants; First, whether there is in the judgment of the Lower Appellate Court any finding that the plaintiffs have made out their title to the garden in dispute, and second, whether if there is no such finding, the decree that the plaintiffs have obtained for the value of fruits wrongfully taken away by the defendants can be sustained upon the finding that the plaintiffs have planted the trees and made the garden and were in possession of it.
2. Upon the first point there are, it is true, passages in the judgment which, if they stood alone, might be taken as amounting to a finding of title in favour of the plaintiffs. But when we find in the judgment of the First Court an express, statement that 'it is not necessary to determine the question of title in this suit,' and when the Lower Appellate Court affirms that judgment, and states that the two important points for consideration are what is the effect of the decree obtained by Joymoni (through whom the defendants claim) and of the possession which he cook in execution of the decree, and, secondly, have plaintiffs possessed the garden,' we do not think we can hold that the Court of Appeal below has found title for the plaintiffs.
3. It becomes necessary, therefore, to consider the second point. For the appellants it is urged that the plaintiffs are not entitled to any decree for the value of the fruits taken away from the garden, unless they can make out their title to the garden; while the other side contend that the decree given to them can be sustained upon the finding arrived at in this case that they made the garden and possessed it.
4. No authority was cited in support of the appellants' contention; but the learned Counsel for the appellants argued that, just as in an ordinary suit for possession of land, the plaintiff is not entitled to a decree unless he establishes his title to it, so in a suit for the value of the. produce of land wrongfully taken away, the plaintiff' cannot get a decree unless he can show that he is entitled to the land. We do not see how this at all follows. The reason why in an ordinary suit for possession of land the plaintiff cannot succeed except upon proof of this title is because the party in possession is considered to be entitled to retain such possession against every one except the rightful owner. And for that very reason it would follow that the party in possession of any land must be held entitled to recover the value of the produce of the land from any person who has taken it away, unless such person is the rightful owner. Such a rule appears to us to be in accordance with reason and common sense. For if the party in possession were to be held not entitled to maintain a suit for the value of the produce misappropriated by a wrong-doer, there would be very little real protection afforded to possession, and there would often arise the most unseemly struggle to misappropriate produce, whenever it is of such a nature as to be easily carried away, and there is known to be some flaw in the title of the party in possession.
5. The learned Vakil for the respondent cited the case of Ram Mohun Dass v. Jhupproo Doss 14 W.R. 41 as favouring his view. That case does not go far enough, but so far as it goes it is in his favour. There is, however, another case, not cited in the argument, which lends greater support to his contention. It is the case of Radha Charan Ghatak v. Zamirunnissa Khatun 2 B.L.R. A.C. 67 : 11 W.R. 83, which was decided by a Bench of three Judges on an appeal under Section 15 of the Letters Patent, and in which the question was whether a person who had obtained a decree in a possessory suit under Section 15 of the Limitation Act of 1859, could maintain a suit for mesne profits. Sir BARNES PEACOCK, in delivering the judgment of the Court observed: 'The defendant in the suit for mesne profits had a right to have the question of title tried; but the prior possession of the plaintiff, to which he had been restored under the Act XIV decree, was sufficient prima facie evidence of his title to warrant a decree in his favour against the defendant for mesne profits unless she could prove a better title.' If in place of the previous possession, intermediate ouster, and subsequent recovery of possession under the Act XIV decree, we had here continuous possession in the plaintiffs, and an intermediate act of trespass not amounting to ouster and carrying away of the produce, the two cases would be governed by the same principle. The Act XIV decree in the case referred to would make no difference, as it could give the plaintiff' in that case no higher rights than those possessed by the present plaintiff's (if they are in possession), that decree being based not upon title, but only upon previous possession. And if the plaintiff in that case could maintain a suit for mesne profits, the plaintiffs in the present case must be held to be entitled to maintain this suit for damages.
6. Both upon reason as well as upon authority, we think the plaintiff's would be entitled to a decree for damages without proof of title, if it is found first that they had been in possession from before and up to the date of institution of this suit, and secondly, that the defendants have failed to make out a better title to the garden than the plaintiffs. Upon these two points, however, we do not think that the judgment of the Lower Appellate Court is at all clear. The Lower Appellate Court has not determined the second point, and as to the first, all that it finds is that the plaintiffs have proved that they made the garden and possessed it, but possessed it down to what date the judgment does not show. If the first point is decided in favour of the plaintiffs, they will be entitled to a decree, unless the defendants make out a better title; and if the first point is decided against the plaintiffs, they will not be entitled to a decree unless they make out their title to the garden in dispute.
7. The decrees of the Courts below will therefore be set aside, and the case remanded to the Lower Appellate Court for afresh decision, in accordance with the directions contained in this judgment. Costs will abide the result.