1. This appeal arises out of proceedings for ascertainment of mesna profits. The facts are that the lands in suit were chakran lands which were transferred by the Government to the zamindar the appellant in 1898. The respondents who had dharpatni right in these lands before they were transferred to the zamindar, were, according to their case, dispossessed from these lands by she zamindar taking possession of them and settling them with other persons. The darpatnidars who are two sets of plaintiffs, the Bhakats and Banerjee brought a suit in 1910 for recovery of possession of the lands against the zamindar. The suit was decreed on 20th December 1919, and possession was taken by the plaintiffs in January 1920. A month before the decree that is, on 19th November 1919, the Banerji, plaintiff transferred his interest to his grand-son Amulya Ratan; but the transferee was not substituted in the suit. On 22nd December 1923 Arnulya Ratan was substituted in these proceedings. Subsequent to the decree, the plaintiff darpatnidars applied for assessment of mesne profits. They claimed large amounts but the trial Court decreed Rs. 1,905 to the Bhakats and Rs. 136 to the minor Amulya Ratan. Against that decree both parties appealed to the Subordinate Judge who confirmed the decree of the trial Court. The zamindar has preferred this second appeal and the only point to be considered is the principle on which mesne profits should be assessed against him in these proceedings.
2. As against Amulya Ratan it is objected by the appellant that he is not entitled to mesne profits for the entire year, 1326 B. S. allowed by the Court below but only for the period from 19th November 1919 to the date of the delivery of possession to the plaintiffs in 1920.'
3. The lower Courts have assessed mesne profits against the appellant on the basis of actual produce. The learned Munsif said:
Though the zamindar only realized the rents from his lessees he would be liable 17th his lessees for the entire amount of mesne profits and not merely to the extent of the rents realized by him from his lessees,
and for this view of the law he relied upon the case of Bireswar Dutt v. Barada Prosad Roy  11 I.C. 540. The learned Subordinate Judge confirmed that view relying upon the decision in Promoda Nath Roy v. Secy. of State A.I.R. 1927 Cal. 132. The appellant before us contends that mesne profits should be calculated on the amount of rant actually received by him from his tenants. Mr. Chatterjee appearing for the respondents contends that the appellant zamindar was as much a wrongdoer as the persons actually in occupation of the lands and that therefore on the principle that all wrong-doers are equally liable, the appellant should be liable for the value of the produce on which basis mesne profits were assessed by the Courts below. This question which was previously in an unsettled state is now set at rest by the recent decisions of their Lordships of the Judicial Committee. In Gurudas Kundu Chowdhury v. Hemendra Kumar Roy A.I.R. 1929 P.C. 300, the decree for mesne profits was passed jointly against the zamindar and the patnidars who had kept the plaintiffs out of possession of the lands in suit. Their Lordships explained the definition of ' mesne profits' as given in Section 211 of the old Civil P.C. (Section 2, Clause (12) of the new Code). Mesne profits are defined as profits which persons in wrongful possession of such property actually received or might with ordinary diligence have received therefrom. The general view which prevailed before the matter came up for consideration by the Privy Council was that the plaintiff who had been dispossessed could recover whatever loss he had sustained by being so dispossessed. Their Lordships said that the principle upon which mesne profits should be ascertained was not what the plaintiff had lost but what the defendant had gained by keeping him out of possession. In this view they held that the measure of mesne profits must be different in the case of tenants from that of persons under whom they were in occupation of the lands. It seems to be their Lordships' view that the general law about the liability of joint tortfeasors, if mesne profits are taken to be damages, has been modified by the special provisions of the Civil Procedure Code. The following passage in their Lordships' judgment clears the matter:
What authority is there for saying that under such decree as against any one particular defendant you are entitled to say: 'I will hold you liable not for the mesne profits which you got according to the terms of the Act, but for the mesne profits which somebody else got and with whom under the decree you are liable Their Lordships think it would be the height of injustice to hold that and they do not see that they are bound to hold it.
4. This Court had held in that ease that the zamindars, the appellants before the Judicial Committee, were liable jointly and severally with the others in actual possession and had been tortfeasors with them. Their Lordships of the Judicial Committee were unable to agree with this view and set aside the decision appealed from.
5. Gurudas Kundu's case has further been explained by their Lordships in the case of Harry Kempson Gray v. Bhagu Mian where the law is thus stated:
It the defendant has Jet the land, the rent received is ordinarily the measure of the profits in the absence of the evidence that a higher rent could have been obtained by reasonable diligence, bat if ho has cultivated the land himself the cultivation profits are the primary consideration.
6. In the present case what was the zamindar It is admitted that he was only the rent receiver. The view taken by the Courts below upon this point therefore cannot be supported.
7. With the appellant there are other defendants who were in actual occupation of the land and against whom the decree for mesne profits has been passed. So far as these defendants are concerned on the principle laid down by their Lordships of the Judicial Committee, they are liable for mesne profits on the produce basis. But so far as the zamindar is concerned, he must be held liable for the rent which he actually received.
8. The result therefore is that the appeal is allowed, the decree of the lower appellate Court set aside and the case remitted to that Court for the purpose of ascertaining the amount of mesne profits for which the appellant may be held liable on the principle stated by us. But with regard to the other defendants was have not appeared before us and we were in actual occupation of the lands the decree of the lower appellate Court against them will be maintained. Whether the decree against them on account of certain circumstances that have since happened, as suggested by the appellant, is executable or not, is not a question which can be gone into at the present moment. According to the view that we have taken namely, that the decree for mesne profits against the appellant should be calculated on the rent basis, the decree in favour of Amulya Ratan should also be varied and a decree passed in his favour in respect of the amount which the appellant received as rent from 19th November 1919 to the date of recovery of possession.
9. The appellant is entitled to his cost of this Court.
10. I agree.