Suraj Prasad Pandey vs Somra Mahto and Others

Ross, J.—The respondents in these two appeals were plaintiffs in Suits Nos. 827 and 826 of 1911, in which they claimed that two sale deeds, executed by the mother of the respondent, Somra Mahto, and other relations, in favour of the appellant in respect of an eight annas share in 9 bighas 3 kathas and 3 dhurs of land and a 12 annas share in 22 bighas and 14 dhurs of land in Gopowlia and Peperdurhi, did not affect their interests, and prayed for possession.

The suits were dismissed by the Munsif but were decreed by the Subordinate Judge on appeal and a second appeal to the High Court was dismissed in 1916. The present applications were made in 1918 for the ascertainment of mesne profits and the respondents claimed in the first ease a sum of Rs. 8,500-14-0 from 1315 to 1320 and in the second case a sum of Rs. 13,197 from 1318 to 1320. The Subordinate Judge has given a decree for Rs. 1,4(sic)5-14-4 in the first case and Rs. 2,219-7-8 in the second. The Appeal No. 15 of 1918 relates to the former and the Appeal No. 14 of 1918 relates to the latter suit and the defendant is the appellant. There are cross-objection in both the cases.

At the outset three legal objections were taken, it was contended, first, that the decree for mesne profits was without jurisdiction, because no mesne profits were asked for in the plaint; but, on the contrary, it was said to at a separate action would be brought for mesne profits. Reference was made to the case of Robinson v. Duleep Singh (1) in support, of the argument that the pleadings must be looked at in relation to the, decree, in the present case, however, the decree is perfectly clear and there is no doubt about its meaning. It is, therefore, unnecessary to look at the pleadings in relation to it. And the relief granted, namely, mesne profits, is not inconsistent with the relief that had been asked for, namely, possession, except to far as there is a statement in the plaint to at a separate action would be brought. But in any case this point is concluded by the decision of the High, Court dismissing the second appeal which was preferred against the decision of the Subordinate Judge.

The second point was as to the jurisdiction of the Court. When the applications for ascertainment of mesne profits were made to the Subordinate Judge, he said that he had no jurisdiction and referred the plaintiffs to the Munsif. But his decision was reversed by the Calcutta High Court. According to the decisions of this Court the Subordinate Judge was right. In Dinanath Sahai v. Mayawati Kuer 60 Ind. Cas, 346 : 6 P. L. J. 54 : 2 P. L. T. 143 : (1921) Pat. 69, it has been held that the proper Court in which to institute proceedings for the ascertainment of mesne profits is the Court passing the decree, even though the claim exceeds the ordinary pecuniary jurisdiction of such Court. The same view was taken in the ease of Mohammad Abdul Ghofoor v. Mahtab Choudhury 41 Ind. Cas. 231 : 2 P. L. J. 394. in which case also, it may be noted, no claim for mesne profits was made in the plaint. But this; plaint also is concluded by the decision of the High Court which granted a rule against the order of the Subordinate Judge and made it absolute and directed him to as certain the amount of mesne profits.

The third point was that the claim for the first three years was barred by time according to the rule laid down in Article 109, Schedule I of the Limitation Act and the decision in Krishnanand v. Kunwar Partab Narain Singh 10 C. 785 : 11 I. A. 88 : 8 Ind. Jur, 335: Rafique & Jackson''s P. C, No. 80 : 5 Ind. Dec. (N. S.) 526 . that mesne profits can be claimed Only for three years before suit. The learned Counsel for the appellant contended that the applications made in 1943 must be treated as the starting point for limited and that the claim must, therefore, be limited to three years before that date. But the Act allows three year before the date of the suit, and the applications were not suits, but proceedings is the suits; and the decrees passed in these suits can only be understood on the assumption that the plaints were treated as stating claims for mesne profits. The material date, therefore, is the date of the suits. The suits, were filed on the 8th of July 1911. Consequently the plaintiffs are entitled to mesne profits from the 8th of July 1908, that is, the 27th of Asarh 1315. But as, this is almost the end of the agricultural year 1315 that year must be excluded from account and the decree of the Subordinate Judge must be modified by disallowing the claim for the, year 1315.

On the meri''s three points were: taken. The first was that the Commissioner had erred in allowing 30 maunds a bigha as the paddy crop. The oral evidence on both sides was disbelieved, but it was contended on behalf of the appellant that, the evidence of the, two Sub Inspectors was not open to objection. That evidence is supported in one cass by receipts (Exhibits C and D) and in the other by the report of the Sub-Inspector of Police who made over the crops of the disputed land to the disputants. Their evidence relates to the years 1321 and 1323 and the amount of padd(sic) made over in these years works oat at 7 maunds a bigha in the Brat year and 8 maunds a bigha in the second. The Commissioner has di(sic)carded the evidence of these witnesses on the ground that they have been gained over by the appellant, This is manifestly an unfair criticism and is not open to him because there was nothing in the cross-examination of either witness to suggest such an idea. On the other hand, the appellant himself admitted in his written statement that the outturn of paddy was 14 or 15 maunds a bigha and this admission itself shows that the figures arrived at from the Police report and the receipts cannot truly represent the outturn of the total area. This confirms the finding of the Commissioner, that these figures cannot be accepted because they do not relate to the produce of the entire land in dispute in either year. These figures can, therefore, form no criterion. Moreover, the evidence on behalf of; the appellant shows that the outturn is 12 maunds even in a year of drought. The Commissioner has given other reasons for his conclusion that the produce amounts to 30 maunds, the meat important being the result of an experimental crop cutting. I do not think that it can be said then that the Commissioner''s estimate is excessive; and certainly the evidence of the two Sub-Inspectors and the documents connected therewith do not afford a sufficient basis for disturbing the Commissioner''s finding.

There is a cross-appeal on this point which may be dealt with at once. The learned Pleader for the respondents contends that the Commissioner ought to have allowed 50 maunds a bigha. He referred to the village note as showing the fertility of the land and the fact that it is irrigated by canel and to certain documents relating to the neighbouring village-Jura which show a large outturn there. On the other hand, the learned Counsel for the appellant referred to certain deeds of sale as showing that land had been transferred at low rates and consequently cannot be very productive. On the whole I think that no good ground has been made out for raising the rate arrived at by the Commissioner after local enquiry.

The next point was that the costs of cultivation had been deducted at the late of Rs. 8 a bigha, whereas two of the defendant''s witnesses say Rs. 10 or 11 and Rs. 12 or 13 and the third witness on whose statement the Commissioner has proceeded says not Rs. 8 but Rs. 8 to 10. Now this was allowance which the Commissioner need not have given at all and in giving it I think that he acted rightly in taking the lower figure stated by a defence-witness.

The third point was that the rate had been fixed as 4 paseris a rupee whereas on the evidence it should be 6 paseris. The evidence on both sides having been disbelieved, the Commissioner would ordinarily proceed on the admission of the defence viz., 6 paseris. He has given no reason in his report for fixing the rate at 4 paseris nor has the Subordinate Judge dealt with this matter. The point is not expressly taken in the numerous objections to the Commissioner''s report, and from the absence of any reference to it in the judgment it must be assumed that the point was not argued. If it had been argued before the Subordinate Judge he might have made a reference back to the Commissioner in order that he might state the reasons for which he had fixed the rate at 4 paseris. The point not having been taken before the Subordinate Judge it is not, in my opinion, fair to raise it now, and it mast, therefore, be overruled.

One further point remains to be dealt with in the cross-objection. It was argued that interest had been allowed at only 6 per cent, whereas 12 per cent, ought to have been given. This was a matter entirely within the di(sic)etion of the Subordinate Judge and this Court will not interfere with his decision.

The result is that the Appeal No. 15 of 1918 is allowed be this extent only; that the sum awarded for 1315 must be disallow ed. In other respects this appeal and the entire Appeal No, 14 are dismissed. The cross-objections are also dismissed. There will be no order as to costs of the appeals.

Das, J.

I agree.