Lalla Chunilal vs Mohiji Singh and Others

This is an appeal from an order remanding a case u/s 562 of the Code. The suit was to recover mesne profits for land of which the Defendant was in wrongful possession and the period for which the mesne profits were claimed was subsequent to the date on which the Plaintiff had in the first Court obtained a decree for possession. The Defendant denied that the possession was with him during this period, and further contested the Plaintiff''s claim to the amount of mesne profits claimed. There was an issue framed as to whether the Defendant was in possession of the land and if so what amount of mesne profits the Plaintiff was entitled to get. The first Court found that the Defendant was not in possession and dismissed the suit on that ground. The determination of the question of the amount of mesne profits then became immaterial, but it is not denied that evidence was adduced on both sides on the question of the amount of mesne profits. The Subordinate Judge in appeal has held that the Defendant was in possession and liable for mesne profits, but instead of deciding the whole case he has remanded it in order that the Munsiff may determine the amount of mesne profits after an inquiry by a Civil Court Ameen. It is quite clear that the order is one which purports to be made u/s 562, and that the Subordinate Judge considers that he has finally disposed of the appeal. But no order u/s 562 could properly have been made as that section only refers to those cases in which the suit has been disposed of upon a preliminary point, If the Subordinate Judge thought it necessary for the Munsiff to determine the issue as to the amount of mesne profits on the evidence on the record, he could send the case back u/s 566 in order that that question might be determined, or if he considered it necessary that additional evidence should be given by the parties and that there was substantial reason for taking that evidence he might either have taken it himself or directed the Lower Court to take it; but under either circumstances the final decision on the question would be his, and the decision would necessarily be in the appeal which was pending before him. If his order of remand holds good, either party aggrieved by the final decision would have a fresh right of appeal to the Subordinate Judge, and that clearly was never contemplated by the Code of Civil Procedure. Indeed the provisions of section 564 were enacted to prevent this. We must set aside the order of remand and direct the Subordinate Judge to dispose of the appeal in the manner contemplated by the Code of Procedure and with reference to the remarks made above. A further question was raised as to the principle on which mesne profits ought to be calculated. It is contended for the Appellant that as the Plaintiff who was the proprietor of the land would have let it to tenants he is only entitled to receive by way of mesne profits the rent which he would have received for the land if it had been let out. On the other hand it is argued that the Plaintiff is entitled to get the profit which the Defendant, who was in wrongful possession, actually did receive, or could by ordinary diligence have received. There can be no question that the Plaintiff was entitled to khas possession of these lands from the date on which possession was decreed to him by the Court of first instance, and that from that date at all events the Defendant was in wrongful possession and if he held possession by himself cultivating the land we think that the Plaintiff is entitled to recover from him the profits which he actually made or might reasonably have made by that mode of occupation and which the Plaintiff himself might have received if the land had come into his khas possession.

The appeal will accordingly be decreed and the case sent back to the Subordinate Judge to be dealt with in accordance with the remarks made in this Judgment. The Appellant will be entitled to his costs in this Court and we assess the hearing fee at two gold mohurs.