1. This appeal arises out of a suit for ascertainment of mesne profits. The facts appear to be these: The plaintiff is the landlord. He had let out the land to a certain raiyat who paid money rent to him. The plaintiff in execution of a money-decree of his own against his raiyat purchased the raiyati himself. When he went to take possession he was resisted by the defendants who were subsequently found to be trespassers.
2. The Court of first instance awarded the plaintiff mesne profits on the basis of fair and reasonable rent. This decision was upheld in appeal. The plaintiff appeals to this Court and he contends that he is entitled to wasilat on the basis of the produce of the land. He argues that the defendants were in possession of the land actually cultivating it and that he is entitled to the profits which the defendants actually received from the cultivation of his land or might with ordinary diligence have received therefrom.
3. This contention of the appellant seems to me to be well founded. Mesne profits are defined in the C. P. C, as those profits which the persons in wrongful' possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits. Now, it is admitted that the defendants were in actual possession cultivating the property as raiyats. Therefore the plaintiff is entitled to recover from them the mesne profits what is described as a produce basis, namely, the actual profits that they might by cultivation of the land have received.
4. The decrees of the lower Courts must be set aside and the case remanded to the Court of first instance to determine what were the actual profits that the defendants realized by cultivation of the land or might have realized with due diligence and to assess mesne profits on this basis as provided in Clause 12 of Section 2 of the C.P.C.
5. The appellant is entitled to his costs in this appeal and in the lower Appellate Court.
B.B. Ghose, J.
6. I agree.