1. This appeal has arisen out of a suit which was instituted by the plaintiffs for recovery of possession of a Putni Taluq on a declaration of the plaintiff's title thereto and after annulment of the encumbrances, if any, claimed by the defendants,, and also for mesne profits. A decree having been passed in plaintiffs' favour the defendant No. 2 has preferred this appeal.
2. The facts, according to the plaintiffs, are the following:
3. Touzi No. 148 of the Birbhum Collectorate which comprises lot Gomai was sold for arrears of revenue on March 27, 1924,and was purchased by the defendant No. 17 in the benami of the defendant No. 16. On December 7, 1924, the defendant No. 16 took possession of the mahal through the Collectorate. Thereafter, on January 5, 1925, the defendant No. 16 executed a deed of release in favour of the defendant No. 17. On January 30, 1925 (Magh 17, 1331) the defendant. No. 17 settled the mahal in putni with the plaintiffs with power to annul encumbrances, if any. The zemindari originally belonged to the deity Radharaman Jieu Thakur and there was a putni under it of which the holder at the time of the sale was the defendant No. 1. Defendants Nos. 2 to 12 are darpatnidars of several interests under the defendant No. 1. Of these the defendant No. 2 who is the appellant, has 13 annas and odd darpatni interest in five of the villages, and 8 annas darpatni interest in the sixth one-lot Gomai con sisting of six villages in all. Defendants Nos. 13 to 15 are mortgagees from some of the darpatnidars.
4. The contesting defendants were the defendants Nos. 1 and 2 who took various defences. Of these such as are of any importance now will be referred to hereafter. The suit was instituted on January 27, 1926. During the pendency of the suit the patni of the plaintiffs defaulted in the payment of its rents and in consequence thereof it was sold under the Patni Regulation of the 1st Jaistha and purchased by the defendant No. 17.
5. The Subordinate Judge declared the plaintiffs' title to the patni up to the 1st of Jaistha 1335 the date on which it was sold as aforesaid, and annulled the incumbrances of the defendants Nos. 2 to 12. He held that the defendant No. 1 is only a lenamidar for the defendant No. 3. He held further that the plaintiffs were not entitled to get possession as they had no subsisting interest at the date of the decision, the putni having been sold up as aforesaid on the 1st of Jaistha 1335. He held, however, that the plaintiffs were entitled to mesne profits from the defendant No. 3 in respect of the period of one year from January 30, 1925 (Magh 17, 1331, date of the creation of the plaintiffs patni) up to January 27, 1926, (date of the suit), such mesne profits to be the amount which the defendant No. 3 as patnidar had to pay to the zemindar, and that for a period of 2 years and 3 months, i.e. from the date of suit up to the 1st Jaistha 1335 (date of the sale of the plaintiffs' patni) the plaintiffs would get mesne profits against defendants Nos. 2 to 12 jointly, on the footing of their being trespassers, such mesne profits being what the defendants themselves could have realised from the tenants of the mahal.
6. The appellants' first contention is that the purchase which the defendant No. 16 made was not on behalf of the defendant No. 17 but was a purchase made for the benefit of the defaulting proprietors. [Their Lordships found that defendant No. 16 was a benamidar for defendant No. 17 and not for the proprietors and continued.] The next contention urged on behalf of the appellant is that the touzi which was sold, though it bore a separate number and a separate amount of Government revenue, was not an entire estate within the meaning of Section 37 of Act XI of 1869. It has been urged that the portion of an estate for which a separate account is opened under Sections 10 and 11 of Act XI of 1859 and the portion from which it is separated are equally 'shares' within the meaning of Section 10 of the Act and are both liable to all the incidents of a 'share' and neither can be considered an entire estate: Monohar Mukerji v. Huro Mohun Mukerji 1 W.R 26. By reference to the documents bearing on the point (Ex. U and Ex. 1 series) the previous history of the land has been placed before us, and from certain other documentary evidence (Ex. J series, Ex. S series and Ex. Q) and also oral evidence it has been shown that there has been no partition of the lands under the Estates Partition Act. And upon this it has been argued that unless there has been a partition of the lands themselves under the provisions of that Act, and so long as the lands themselves remain joint, the creation of separate touzis with separate revenue does not make the touzis entire estates but only shares of the estate. As authority for this contention reference has been made to the case of Koowar Singh v. Gour Sunder Prasad Singh 24 C 887, The case referred to, in our opinion, lays down no such proposition: it only states what the effect of a partition by the Collector made under that Act is. The Estates Partition Act came into existence in 1876, while the estate now represented by Touzi No. 148 originated so far back as in 1799. It has been held that when an estate sold for arrears of revenue is recorded in a separate number in the Collectorate's rent-roll with a separate revenue assessed upon it, and the specification in the sale-certificate granted under Section 28 Act XI of 1859 in the form prescribed by the Act shows that the estate sold was an entire estate the mere fact of a portion of the lands of the estate being joint with those of certain other estates cannot stand in the way of its being an entire estate within the meaning of Section 37 of the Act: Kamal Kumari Chowdhrani v. Kiran Chandra Roy 2 C.W.N 229, Preo Nath Mitter v. Kiran Chandra Boy 27 C 290. The sale certificate (Ex. C) in this case and the Register [Ex. 2(2)] sufficiently shows that the towzi is an entire estate. It also appears that the Collector treated the estate as an entire estate and sold it as such (Vide Robukuri Ex. Y).
7. It was next argued on the authority of the decision of the Judicial Committee in the case of Saraswati Bahuria v. Surjanarain Ghowdhury , that the sale was held without jurisdiction. The contention in our opinion is not tenable for the simple reason that in this case it is abundantly clear that January 14, 1924, failure to put in the arrears by the sunset of which date, brought about the sale was the date specified in Section 3 and not Section 2 of the Act. This decision of the Judicial Committee has been explained by a later decision of their Lordships in Krishna Chandra Bhowmik v. Pabna Dhanabhandar . and also by the decision of this Court in the case of Sri Sri Radha Gobinda Deb Thakur v Girija Prasanna Mookerji : AIR1932Cal153 .
8. The next contention of the appellant relates to the question of the plaintiffs' right to annul the under-tenure. We think the words of the plaintiffs' putni lease leave no room for this contention. It is quite true that by reason of the fact that the plaintiffs' putni was sold up subsequently to the institution of the suit, the plaintiffs at the date of the decision of the court below were not entitled to obtain khas possession. But the defendant No. 17 has not said anything against the plaintiffs' right to annul the under-tenures and such right was exercised by the plaintiffs at a time when they were fully competent to do so.
9. The last contention relates to the question of mesne profits. As regards this matter, it has been argued in the first instance that a decree for mesne profits can only follow a decree for possession, and that when the plaintiffs have failed to obtain a decree for possession their claim for mesne profits should not have been allowed. The proposition, which the appellant has thus propounded and which under ordinary circumstances is perfectly sound, cannot be regarded to be applicable to the present case in its special circumstances. It is only because of the sale that took place during the pendency of the suit that the plaintiffs are precluded from obtaining khas possession. This cannot deprive the plaintiffs of their right to mesne profits up to the date up to which they were entitled to possession. So far as the principles as regards calculation of mesne profits are concerned, it seems to us that the learned Judge was right in making the defendant No. 3 alone liable for the period up to the date of the suit on the footing of his being the patnidar. As regards the period subsequent to the institution of the suit he has made the defendants Nos. 2 to 12 liable jointly on the footing that they were trespassers since that date. As has been pointed out in the ease of Basanta Kumar Basu v. Ram Sunkar : AIR1932Cal600 in the case of a claim for mesne profits two courses are left open to the court. A decree for mesne profits may be passed jointly and severally against ail the trespassers who may have jointly kept the plaintiffs out of possession for any particular period, leaving them to have their respective rights adjusted in a separate suit for contribution : or, the respective liabilities of such trespassers may be ascertained in the plaintiffs' suit against them, and a decree on 'the basis of such several liabilities maybe passed against the respective trespassers in plaintiffs' favour. This, in our opinion, was a case in which the latter course should, if possible, have been adopted. It appears, however, that the appellant never asked the Court below to proceed on such lines, and indeed furnished no materials nor adduced any 'evidence to enable the learned Judge to apportion the mesne profits amongst the defendants Nos. 2 to 12 inter se. The learned Judge seems to have been perfectly willing to help the appellant in that way, as would appear from the following observations of his in his judgment:
The liability of the other defendants cannot be apportioned in this suit as the defendants did not adduce any evidence to show what sum each of them, realised after institution of the suit till the 1st Jaistha 1335 B S.
10. On April 19, 1927, the defendant No. 1 instituted a suit being R. Section No. 11 of 1927 for the rents of the darpatni for the years 1330 to 1333 against the defendant No. 2, that is to say the appellant and his co-sharer. The suit was decreed on July 24, 1928, and it appears that the decretal dues were realised on August 1, 1929. The result of this realisation has been that the defendant No. 1 has received from the appellant; and his co-sharer a portion of the amount for which the defendants Nos. 2 to 12 stand liable on account of mesne profits under the decree which the Subordinate Judge has made in this case, namely mesne profits for the period commencing from the date of institution of this suit (i.e., January 27, 1926) up to the end of Ghaitra 1333. We appreciate that there is some amount of hardship on the appellant for what has happened, but for this we do not see that he is entitled to any relief as against the plaintiffs. It was for the appellant, if he wanted to have any relief, to take suitable steps in the present suit by applying for apportionment and placing proper materials before the court for that purpose.
11. The result is that, in our judgment, this appeal fails and should be dismissed with costs to the plaintiffs respondents; hearing fee being assessed at 10 gold mohurs.
A.O.D. No. 21 of 1929.
12. This appeal has been preferred by the same person who is the appellant in the other appeal just disposed of. He is the defendant No. 2 in the suit out of which the said other appeal has arisen. In the suit out of which this appeal has arisen, he was the first defendant, and the second defendant therein was his co-sharer in the darpatni. The suit was for recovery of arrears of rent of the darpatni for the years 1330 to 1333. it was instituted by the patnidar, who was the defendant No. 1 in the suit out of which the other appeal has arisen.
13. The Subordinate Judge who dealt with this suit should have stayed the hearing of the suit as was prayed for on behalf of the appellant. He was not right in thinking that it was necessary for the purchaser himself to annul the under-tenure or that the person who had obtained a patni lease from the purchasers were not competent to do so or that the said patni having been sold up the annulment which the said putnidar had made ceased to have effect.
14. The difficulty which has been created by the decree of the Court below in this suit has already been pointed out towards the close of the judgment in the other appeal just delivered. There can be no question that the decree for rent for the period commencing from the 1st Baisakh 1331 and up to January 27, 1926 (on which date the other suit was instituted) is perfectly correct. But as by the institution of the said other suit the under-tenures were annulled the relationship of landlord and tenants between the parties in the present suit was affected and all of them became trespassers liable jointly for mesne profits to the plaintiffs in the other suit. As their rights and liabilities inter se may have to be determined when the mesne profits decreed in the other suit are realised, and as we are not able to interfere with that decree which is a joint decree against the defendants Nos. 2 to 12 in the other suit, the plaintiff in the present suit having been found to be a benamidar for the defendant No. 3 in the other suit it is only right that the defendant No. 2 should get back any amount which he has had to pay for use and occupation of the lands for the period subsequent to January 27, 1926. The decree which he has made in this suit for rent for the entire period cannot be upheld. The relationship of landlord and tenant between the parties subsisted only up to the date on which the suit out of which the other appeal has arisen was instituted and on which date the under-tenures must be regarded as having been annulled.
15. The appeal will be allowed, the decree of the court below will be set aside and the case will be sent back to the said Court in order that a decree for rent may be passed in plaintiffs' favour for the period commencing with the 1st Baiakh 1330 and ending on April 27, 1927 and his claim for rent for the period subsequent to that date should be dismissed, the respective rights and liabilities of the parties in respect of the said subsequent period being left to be determined in such proceedings as the parties or any of them may institute hereafter.
16. There will be no order for costs in this appeal. Costs of the suit will be dealt with by the court below on remand.