Balgobind Mandar and Others vs B. Dwarka Prasad and Others

Courtney-Terrell, C.J.—In this case the plaintiffs sued the defendants for possession of certain lands upon which the plaintiffs said that the defendants were trespassers. The plaintiffs also claimed mesne profits.

The learned Subordinate Judge granted a decree for possession and mesne profits which have since been ascertained. In ascertaining the amount of mesne profits to be paid the learned Subordinate Judge has calculated it upon the basis of the produce received by the defendants.

The defendants appealed to the High Court and contended that the mesne profits should have been calculated upon a rental basis. There was no evidence that the disputed lands were at any time in the possession of tenants or that either the plaintiffs or the defendants enjoyed the lands as landlord by receipt of rent.

Das and Allanson, JJ., who heard the appeal affirmed the decision of the learned Subordinate Judge.

The defendants ask for a certificate that this is a proper case for appeal to His Majesty in Council and urge as a point of law that the mesne profits awarded should be calculated on a rental basis.

Now the distinction between damages and an account of profits as alternative remedies for tort committed by a defendant has long been thoroughly understood and moreover the CPC defines mesne profits as follows:

Mesne profits means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession.

As was said by Mr. Justice Das in the case of Tilakdhari Singh v. Ram Prasad Singh 62 Ind. Cas. 25, "The true criterion is not the loss caused to the person wronged, but the gain made by the wrongdoer". With this explanation 1 am in entire agreement. On the other hand the principle to be applied in assessing damages is that the plaintiff should be restored by a monetary compensation to the position which he would have occupied but for the wrongful acts of the defendant, provided always that such loss as he proves is the natural and direct consequence of the defendant''s acts: see Lord Macnaghten''s judgment in United Horse Shoe & Nail Co. v. Stewart (1889) 13 A C. 401 : 59 L.T. 561. I entirely agree with the conclusion at which the learned Judge has arrived. The question is merely one of the interpretation of the decree and the meaning of the words "mesne profits". In my opinion this appeal involves no important point of law. The law is well-settled and the application for leave to appeal is rejected with, costs. Hearing fee five gold mohurs.

Ross, J.

I agree.