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Jogendra Nath Maiti and ors. Vs. Ram Gopal Das and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal616,103Ind.Cas.639
AppellantJogendra Nath Maiti and ors.
RespondentRam Gopal Das and ors.
Cases ReferredLachmi Narain v. Mazhar Abbas
Excerpt:
- b.b. ghose, j.1. these two appeals arise out of a decree by which mesne profits were assessed. the facts are these:one sib chandra das was the tenant with regard to several jamas under defendants nos. 3 to 5. the total area of the jamas is 129 bighas. sib chandra mortgaged these jamas to the plaintiffs some time in 1901. the defendants nos. 3 to 5 brought one suit for rent for all those jamas in 1905 against sib chandra. a decree was passed in that suit on 2nd august 1905. the decree was executed in 1906 and defendants 3 to 5 purchased the interest of the mortgagor sib chandra in execution of their decree and took possession. under the law the landlords could not claim to have purchased the jamas free from in-cumbrance having brought one suit for rent for a number of jamas. the plaintiffs.....
Judgment:

B.B. Ghose, J.

1. These two appeals arise out of a decree by which mesne profits were assessed. The facts are these:

One Sib Chandra Das was the tenant with regard to several jamas under Defendants Nos. 3 to 5. The total area of the jamas is 129 bighas. Sib Chandra mortgaged these jamas to the plaintiffs some time in 1901. The Defendants Nos. 3 to 5 brought one suit for rent for all those jamas in 1905 against Sib Chandra. A decree was passed in that suit on 2nd August 1905. The decree was executed in 1906 and Defendants 3 to 5 purchased the interest of the mortgagor Sib Chandra in execution of their decree and took possession. Under the law the landlords could not claim to have purchased the jamas free from in-cumbrance having brought one suit for rent for a number of jamas. The plaintiffs then brought a suit on their mortgage against Sib Chandra in 1909 in which the Defendants 3 to 5 were joined as defendants the Defendants 3 to 5 claimed a paramount title and asked to be discharged from the suit, and that was done. The mortgage suit was decreed and the plaintiffs purchased the property in execution of their own decree and took symbolical possession in July 1912. The Defendants Nos. 3 to 5, who were in actual possession, resisted the plaintiffs in taking actual possession.

2. Thereupon the plaintiffs brought the suit out of which this appeal arises, which was No. 54 of 1916, against Defendants 3 to 5 for khas possession and wasilat, In that suit other persons were joined as defendants who were said to have been in possession of the property under Defendants 3 to 5. This suit was decreed. Khas possession was allowed and a decrer made for mesne profits. The plaintiffs took possession in May 1917. Proceedings were then taken for ascertainment of mesne profits and a commissioner was appointed. The commissioner made hid report on the 30th April 1918. In hid opinion the plaintiffs were entitled to get mesne profits calculated on the basis of the produce which might have beers grown on the land. The defendants did not produce any paper showing what was actually received from the land in question. Objections were taken by both parties to the report of the commissioner. The plaintiffs wanted more, and the defendant, amongst other things, urged that mesne profits should be calculated on the basis of rent. The matter came up before the Subordinate Judge for hearing and in his judgment dated the 8th September 1920 the Subordinate Judge held that the plaintiffs were entitled to mesne profits on rental basis, that is, on the assumption that the lands in suit were let out to tenants by the defendants on cash rent and bhag rent. He held therefore that the commissioner's calculation was wrong and he said that he would determine the amount of cash rent in taking further evidence, and he also said that he would determine the bhag rent on the evidence taken by the commissioner.

3. Subsequently the defendants produced certain collection papers, and the question came up before another Subordinate Judge who succeeded the previous Subordinate Judge, and he decided the matter by his judgment dated the 30th July 1924. The Subordinate Judge held that the plaintiffs were only entitled to mesne profits calculated on the basis of the rent realized by the defendants. He held that the rent and cesses payable by the tenants on the land amounted to about Rs. 260 per year. From this amount he deducted the rent payable for the land to the defendants as land lords, and he calculated the annual profits on the difference. In addition to this sum he gave the plaintiffs a decree for Rs. 1,050 which the Defendants 3 to 5 took as Salami from the tenants they had settled on the land. The total amount came up to Rs. 2305-9-0. The plaintiffs have appealed against that decree and claimed Rs. 5,500 in addition to what has been allowed by the Subordinate Judge. Their appeal is No. 114 of 1925. The defendants appeal against that part of the decree by which the Subordinate Judge allowed the plaintiffs the amount of Salami which the defendants had obtained from their tenants as also certain costs allowed against them. Their appeal is valued at Rs. 2,958-8-0; this appeal is No. 192 of 1925.

4. A preliminary objection has been taken on behalf of the respondents that the appeal of the plaintiffs does not lie to this Court. Their ground is that the plaintiffs valued their land in their plaint at Rs. 2,800 and tentatively valued the mesne profits at Rs. 1,200. This amount falls below Rs. 5,000 and that would not entitle the plaintiffs to prefer an appeal to this Court from the decree of the Subordinate Judge. The plaintiffs on the other hand, say that mesne profits were valued by the Subordinate Judge at Rs. 2,305 and this added to the value of the land would give the value of the suit as over Rs. 5,000 which would entitle them to prefer an appeal to this Court. Even if the question were open to us for consideration we should have held that the appeal to this Court is competent. When the value of the means profits, taken along with the value of the lands exceeded Rs. 5,000, the value of the suit must be taken to exceed Rs. 5,000. But I do not think that this question is open to us for decision. This matter was raised before a District Court at a preliminary stage of the hearing of the appeal and it was decided by that Court, by its judgment dated 26th August 1925, that the appeal to this Court was competent. It is urged on behalf of the respondents that we are not bound by that decision. But this contention would be against the well-known principle laid, down in the leading case of Ram Kirpal Shukul v. Mt. Rup Kuari [1886] 6 All. 269, where it was observed that an order made at an earlier stage in the same proceedings is binding upon the Court at a subsequent stage. Their Lordships of the Privy Council pointed out that if that were not so there would be no end of litigation. This principle has been re-affirmed by the Privy Council in later cases which it is unnecessary to refer to I therefore hold that the appeal is competent.

5. The question then arises upon what basis mesne profits should be calculated. The evidence shows that Sib Chandra was a cultivating raiyat. An attempt was made to establish from the evidence that he used to let out lands in Bhag. But from the evidence of defendants' own witnesses it is quite clear that Sib Chandra had his own ploughs and cultivated the land himself. There is no reason to hold that Sib Chandra was a rent receiver or a person who used to derive profits from land by letting it out in Bhag. It is possible that some portion of the land which he could not himself cultivate for some reason was let out in Bhag. Bat that does not make him any the less a cultivating tenant who used to cultivate the land himself. The plaintiffs, by their purchase in execution of the mortgage made by Sib Chandra, were entitled to Khas possession of the land and to cultivate it themselves. Under these circumstances, when the defendants kept them out of possession, there is no good reason for depriving the plaintiffs mesne profits on this basis of the produce which the plaintiffs might have grown on the land, and what the defendants would have got if they had cultivated the land themselves.

6. The learned advocate for the respondents relies upon the case of Lachmi Narain v. Mazhar Abbas [1908] 35 Cal. 1000 for the proposition that the basis on which mense profits should be calculated depends upon the mode of the defendants' occupation of the land, and it is contended that as in this case the defendants were in possession by letting out the land to tenants the rental basis should be taken for the calculation of the mesne profits. But that case really does not support the contention of the learned advocate. The matter has been discussed at page 1005 of the report where many of the previous cases have been cited. Mesne profits, as his been well settled, is in the nature of damages and it must be molded according to the circumstances of each case by the Court in its discretion. In the present case as I have already stated the plaintiffs were entitled to actual khas possession and there is no reason why they should be deprived of the profits which the defendants might have made by actually cultivating the land. As was observed in the case cited above the indolence of the defendant or his reluctance to cultivate the land himself ought not to be a ground for depriving the plaintiff of his just dues. I am therefore of opinion that the Subordinate Judge's decision, that the plaintiffs are entitled only to mesne profits on the basis of rent realized, is not correct. The commissioner's view should tharefore be accepted.

7. The next question is as to what should be the amount of mesne profits. On behalf of the appellants it is stated that they would be satisfied with what the commissioner found to be the produce for each year. The defendants, it is said, never took any objection to the amount or the value of the produce found by him in his report. There is, however, one objection taken, objection No. 16 in the defendants' petition before the Subordinate Judge which may be read as an objection taken to the quantity of paddy and the price. But it is a very vague statement. It runs thus:

The finding of the learned Commissioner with regard to the produce of paddy per bigba and the price of paddy per maund is absolutely groundless.

8. We, however, allowed the learned advocate for the respondents to point out the evidence on their behalf which would show that the Commissioner's estimate is erroneous. Going through the evidence on behalf of the plaintiffs as WJII as the defendants which was placed before us it seems that the Commissioner has taken a very proper view of the evidence. The plaintiffs in their evidence stated the quantity of paddy as well as the value at a higher rate than was accepted by the Commissioner. The defendants on the other hand gave a lower rate and in some instances the same rate the Commissioner after considering the evidence in an elaborate report came to the conclusion that different quantities of paddy could be produced on different classes of land and he divided the lands in two classes. I do not think that this can be assailed as erroneous. The Commissioner has been very careful in his report and he shows that for one year which was a bad year, that is, 1321, he calculated the profits at a much lower rate than in the other years. The Commissioner also deducted the costs of cultivation in assessing the mesne profits. I think therefore it is quite reasonable to calculate mesne-profits at the rate found by the Commissioner. The defendants might have produced better evidence in support of their allegation as to the quantity of paddy produced by showing in their accounts as to what the quantity of bhag paddy was, they had realized for the lands which were let out in bhag. But that-was not done. (After considering evidence the judgment proceeded.) The plaintiffs would be entitled to mesne profits at the rate of Rs. 1,568-10-0 for the years 1320, 1322 and 1323 B.S. with interest at 12 par cent per annum, and for the year 1321 B.S., Rs. 1023 with interest at 12 per cent per annum. The learned advocate for the plaintiff has calculated the amount which they would be entitled to get on this basis at Rs. 8,995-13 as. Out of this the lower Court has allowed Rs. 2,305-9-0 and the plaintiffs therefore would be entitled to get Rs. 6,690-4-0 in addition to what has been allowed by the lower Court. They have however value their appeal at Rs. 5,500. They cannot ask for more because the appeal could not have bean valued tentatively as all the evidence was taken in the lower Court on which the plaintiffs might have valued their appeal properly. The plaintiffs should be held to have abandoned a part of their claim in the appeal.

9. The result therefore is that the plaintiffs will get a decree for Rs. 7,805-9-0 including what was allowed by the Court below with interest at 6 per cent par annum from the date of the decree of the lower Court that is, the 30th July 1924, until realization. The plaintiffs are entitled to their costs of this appeal and of the lower Court.

10. With regard to the appeal of the defendants, F.A. 192 of 1925, having regard to the basis of the calculation we have adopted in this Court, the plaintiffs are not entitled to get any portion of the salami, and it is not necessary to express any opinion as to whether the plaintiffs would otherwise have been entitled to the salami as was decreed by the Court below. This appeal therefore with regard to the salami only valued at Rs. 1,050 is allowed and dismissed as to the rest, but without costs.

Panton, J.

11. I agree.


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