1. The question involved in this appeal relates to the principle on which mesne profits should be ascertained in the present case.
2. The plaintiffs, who are the appellants before us, were the landlords in respect of the land in dispute. The lands were held by a tenant Mukunda Mandal. He transferred the lands to the defendants. As, however, the holding was a non-transferable occupancy holding, the transfer was invalid and as the tenant had abandoned the land, the plaintiffs were entitled to get khas possession thereof. The plaintiffs accordingly brought a suit for khas possession and mesne profits. They obtained a decree for possession and then applied for ascertainment of mesne profits.
3. The learned Subordinate Judge was of opinion that the mesne profits should be assessed on the basis of the actual produce, and not on the basis of the rent which the plaintiffs had been receiving from Mukunda, the tenant, and he made a decree accordingly. On appeal the learned District Judge held that as the plaintiff was in possession of the land by receipt of rent and as the defendants also, during the period they were in wrongful possession, had been in receipt of paddy rent from the persons with whom they settled the lands, both the plaintiffs and the defendants, were in the position of rent receivers and that, therefore, the mesne profits ought to be assessed on the basis of rent. It may be mentioned here that the learned Subordinate Judge bad disbelieved the defendants' case that they had been in possession of the land through tenants who paid paddy rents, but on appeal the learned District Judge held that that case was true. But although the learned District Judge was of opinion that the mesne profits should be assessed on the basis of rent, he allowed mesne profits on the basis of rent which the plaintiffs had been realising before the suit from their tenant.
4. The plaintiffs have appealed to this Court and it is contended on their behalf that having regard to the fast that the defendants themselves had realised paddy rent from the tenants, they should pay the same to the plaintiffs by way of mesne profits. The plaintiffs did not claim before us the mesne profits on the basis of the actual produce but only on the basis of the paddy rent which the defendants had realised from their tenants. We are of opinion that this contention ought to prevail.
5. 'Mesne profits' has been defined in Section 2(12) to mean those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom together with interest on such profits. The defendants admittedly had received a certain paddy rent from their tenants with whom the lands had been settled by them during the period they were in possession. If the mesne profits are to be assessed on the basis of rent, there is no reason why they should not be based on the amount of rent which the defendants actually received from the persona with whom the land had been settled.
6. It is contended on behalf of the defendants that the plaintiffs had been getting only Rs. 19 as rent from the land prior to the institution of the suit and that, therefore, that ought to be the measure of damages. But the plaintiffs also could have realised paddy rent, had they obtained khas possession of the lands on their tenant Mukunda abandoning the land.
7. So long as Mukunda was holding the land as tenant, the plaintiffs were entitled only to a rent of Rs. 19 and could not let out the land at paddy rent. It was only when that tenant had transferred the land to the defendants and abandoned possession that the plaintiffs became entitled to khas possession. The present case stands on a different footing from a case where the plaintiff being in possession through tenants seeks to recover possession through such tenants, in other words, to be restored to the same position as he was before the dispossession. In the present case, had the defendants given up possession to which the plaintiffs ware lawfully entitled on their tenant Mukunda's abandoning the land, the plaintiffs could have, as stated above, let out the lands at a paddy rent as the defendants had done. There is no reason why in these circumstances the defendants should be allowed to make a profit out of their wrongful possession.
8. We are, therefore, of opinion that the plaintiffs should get a decree for mesne profits on the basis of the paddy rent which the defendants admittedly had realised during the period in suit from their bhag tenants, the amount thereof for the period 1313 to 1318 B.S. (both years inclusive) to be ascertained by the Court below upon the evidence on the record. The case is accordingly remanded to that Court and a decree will be passed by that Court according to the result of the necessary inquiry.
9. The parties will be entitled to get costs in proportion to their respective success in all Courts. The plaintiffs have succeeded to the extent of 11/20ths and the defendants 9/20ths. We assess the hearing fee for the plaintiffs-appellants in this Court at Rs. 32.
10. This judgment will govern the other Appeal (No. 2090 of 1916) in which we make no order as to costs.