1. The respondents got a decree for khas possession against the appellants on 6th April 1925 and took delivery of possession in execution on 15th July 1925. That decree having been set aside on 1st August 1928, the appellants applied for restitution of the lands and they were restored to possession on 23rd August 1928. Thereafter the appellants applied for what they called mesne profits, assessing their total claim at Rs. 978. The Courts below found that the respondents did not hold the land in khas but through tenants with whom they had settled the lands on receiving a nazar of Rs. 1,100 and at a rental of Rs. 17 a year. The said Courts have awarded the appellants Rs. 51 as the amount of mesne profits for three years during which they had remained in possession at the rate of Rs. 17 per year, on the authority of the decision in Gurudas Kundu v. Hemendra Kumar 1929 PC 300 and Harry Kempson Gray v. Bhagu Meah 1930 PC 82. They have taken these decisions as laying down that the criterion upon which mesne profits should be ascertained is not what the party dispossessed had lost but what the party in possession had gained. The said Court refused to give the appellants any part of the nazar of Rs. 1,100 holding that though the respondents had the use of this amount for three years they were liable for the said amount together with compensation to the tenants who would be justified in realizing the same from them.
2. The decisions of the Judicial Committee upon which the Court below have purported to proceed are authorities for a proposition, which must be regarded as well-settled, that the criterion for the calculation of mesne profits cannot be what the person out of possession might have got if he had been on the land. The very definition of mesne profits given in Section 2(12), Civil P.C., makes that sufficiently clear because according to the definition it is the profits which the person in wrongful possession actually received or might with ordinary diligence have received which are to be regarded. In the former of the two cases there was no case made that the person in wrongful possession could have got more than what he actually received, and so what he actually received was what the rightful owner out of possession was entitled to. The person in wrongful possession in that case had got the lands with one Srish as a lessee on it, who was holding under a lease from the Government. His contention was:
I am only liable for what I really got, namely, what I got from Srish; allowing Srish to go on as he had done with Government was perfectly reasonable: you cannot think that it was necessary for me to put out Srish and begin to cultivate myself and therefore I in the terms of the Code am only liable for what I really got.
3. In the latter of the two cases, the wrong-doers had cultivated the lands themselves and it was held by their Lordships that the cultivation profits were the primary consideration, but that the profits should not be calculated on the basis of indigo cultivation which was done for the wrong-doer's special purpose, but that the true test must be what an ordinary prudent cultivator must have grown. In the present case the wrong-doers have not been shown to have cultivated the lands and it is admitted that they had, in fact, settled the lands with tenants. In such a case mesne profits can only be calculated on the basis of rental value of the land and must be either on the basis of such rent as the respondents in fact received or could with ordinary diligence have received. In the second of the aforesaid cases their Lordships have observed:
The appellant's first contention was that the rental value of the land * * * * was the proper criterion. This would no doubt ordinarily be so where the person charged had merely let the land out to others. In such a case the rent that he received if there was no evidence could with ordinary diligence have been obtained, would be the measure of the profits for which he would be liable.
4. Mr. Sen, for the appellants, has argued that it was not mesne profits as defined in the Code but compensation or damages, which words are also used in Section 144, Civil P.C., to which his clients are entitled and that such compensation or damages should be assessed on the basis of what his clients could have got if they were in possession. The true position in law is that a person who obtains possession of immovable property under and by virtue of orders passed in execution proceedings, based upon what at the time was a valid decree, but has subsequently been set aside on appeal, can in no sense be regarded as a trespasser during such period: Surnomoyee v. Shooshe Mukhee (1867-69) 12 MIA 244 (P C)., Dhunput Singh v. Saraswati Misrain (1892) 19 Cal 267 and Holloway v. Guneshwar Singh (1906) 3 CLJ 182. For that period he is liable to his opponent, the real owner, for compensation or damages and not for mesne profits in the strict sense of the expression. And it is also true that since the reversal of the decree in his favour when it becomes his duty to vacate and hand over possession he becomes a trespasser and remains liable for mesne profits in such sense so long as he continues in possession. But on no principle can it be said that the measure of damages or compensation during the former period should be higher than during the latter period.
5. Mr. Sen has drawn our attention to a number of decision in which it has been laid down that the true principle upon which Courts ought to proceed in making an order for restitution is to compensate the party injured by giving him all that was, in fact, lost to him by the erroneous decree or order and not by giving him only as much as would come within the definition of mesne profits as given in the Code. The decisions cited in this connexion are: Hurro Chunder Roy v. Shoorodhonee Debia (1868) 9 WR 402, Doraisami v. Annasami (1900) 23 Mad 306 and Parbhu Dyal v. Ali Ahmad (1910) 32 All 79, (which went up on appeal to the Judicial Committee: see P. Prabhu Dyal v. Kalyan Das 1918 PC 92 and Dawood Hashim Esoof v. Tuck Shein 1932 Rang 148. There is no doubt whatever that it is one of the first and highest duties of all Courts to see that the act of the Court does no injury to any of the suitors, Rodger v. Comptoir d' Escompte de Paris (1871) 3 PC 465, and that it is the duty of the Court under Section 144, Civil P.C., to place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed: Jai Berham v. Kedar Nath 1922 PC 269, but in assessing what a party may have lost or of what he may have been deprived during his dispossession the law takes into account not what he could have made but what his opponent did in fact make or could with reasonable diligence have made. At first sight this might seem somewhat unjust, but it is not really so, for what the party out of possession could have made if he was left in possession is a loss which in the vast majority of cases would be hypothetical, remote and uncertain. Of course, there may be cases where such profits must necessarily have accrued to him in any case, e.g., if the lands were under a lease, with a stipulation that in all circumstances a certain rent would be recoverable. But in such cases what the party out of possession would have lost is what his opponent could have made by reasonable diligence. There may again be cases in which in addition to mesne profits claimed on the ground of the wrong-doer remaining in possession, damages or compensation may be claimed on other grounds. But the present case is not a case of that character.
6. In our opinion therefore in the present case the assessment of compensation or damages or mesne profits, whichever be the term or expression used, must be on the basis of rent which the defendant actually realized, unless it be that he could with ordinary diligence have realized more. Rs. 17 per year was actually realized, but that was on the basis of a permanent lease for which a premium of Rs. 1,100 was also realized. The Court of first instance, in our opinion, should allow the parties to adduce evidence as to the rent which may be realized for the lands on the basis of a yearly tenancy, and such figure as is established should be the basis of assessment.
7. Two contentions have been put forward on behalf of the respondents for the purpose of repelling the appellants claim. One is that the claim is barred by the provisions of Order 2, Rule 2, Civil P.C., in view of the previous application for restoration of possession. This contention has no force and has been rightly overruled by the Courts below: Krupasindhu Roy v. Mahanta Balbhadra Das 1918 Pat 396. Another is that the lands were in the possession of some persons as mortgagees from the appellants and so the respondents could get no actual possession. This is a new contention not noticed by us and, it may therefore be presumed, was not raised in the Courts below; and so it does not deserve any consideration. The appeal is allowed. The orders of the Courts below are set aside and the case is sent down to the Court of first instance to be dealt with an the light of the directions given above. The appellants will get their costs in all the Courts. Hearing fee in this Court is assessed at two gold mohurs.