Patna High Court
E. Dalgleish And Ors. vs Babu Nandan Misser And Ors. on 14 February, 1917
Equivalent citations: 39IND. CAS.516, AIR 1917 PATNA 421
JUDGMENT Chapman, J.
1. These two appeals arise out of an order made in execution determining the amount of mesne profits which the judgment-debtors are liable to pay. The judgment-debtors are proprietors of an indigo factory which had been operating for many years on a considerable scale. The decree-holders had purchased their interest at a sale in execution. Under that sale they were entitled to a two-thirds share in the lands in dispute and they had been declared entitled to recover possession of the lands by reason of the expiry of the lease under which the factory held them. In execution of the decree for possession they obtained delivery from the Court in 1910. They then instituted proceedings for the ascertainment of mesne profits for the years 1311 to 1317. They claimed the amount of Rs. 19,000 odd and have been awarded a sum of Rs. 9,116-12-5. Against this award the judgment-debtors have appealed in Appeal No. 400 of 1914; the decree-holders have also appealed in Appeal No. 525 of 1914.
2. On behalf of the judgment-debtors it has been argued that the learned Subordinate Judge was wrong in proceeding upon the principle that the decree holders were entitled to cultivating profits. It has been contended that the rate at which the lands could have been let to tenants should have been ascertained and mesne profits awarded accordingly, and in support of this contention the case of Ranee Asmed Kooer v. Moharanee Indurjeet Kooer 9 W.R. 445 ; B.L.R. Sup. Vol. 1003 has mainly been relied upon.
3. Since that case, however, there has been a multitude of decisions upon this question and the principles upon which the Court should proceed are now settled. The first principle is, and this is founded upon the definition of the word 'mesne profits' in the Code of Civil Procedure, that the possession which has been wrongfully retained should not be a source of profit to the wrongful possessor and that he should be made to pay to the rightful owner any profit which he has made or could with reasonable diligence have been made.
4. The second principle is that in determining the question of mesne profits the Court should aim at doing justice between the parties having regard to all the circumstances of the case, the object being to see that the person wrongfully kept out of possession is put in the same position financially as if right had been done. Thus the Court ordinarily enquires what use the decree-holder would have put the land to if he had been in possession and where the decree-holder has been dispossessed, the question of the use he would have been likely to put the land to is ordinarily determined by seeing what use he was making of the land at the time when he was dispossessed. In the present case the decree-holder was not himself in possession; it was a case of the judgment-debtor continuing in possession after his right to the land had expired. The ordinary principle is not, therefore, applicable; at the some time the lands appear the have been lands which proprietors ordinarily do retain in their own possession, and I ami of opinion that the learned Subordinate Judge was right in basing his decision upon the question what profit could have been made by cultivating the land rather than upon the question what rent could have been obtained if the land had been let out to tenants.
5. The amount of mesne profits has been enhanced by allowing a considerable sum on account of cultivation of tobacco and chillies. Now in the schedule to the plaint in which an estimate is made of the mesne profits of the years 1311 to 1313, it is not suggested that any of the land would be cultivated with tobacco or chillies. It is only subsequently, when after possession had been obtained the decree-holder asked for ascertainment of mesne profits, that he included in his estimate the profits of tobacco and chilli cultivation. Compensation on this account was eventually awarded mainly on the ground that the decree-holder had, since he obtained possession, cultivated a portion of the land with tobacco and chillies. But in the first place the market value of these commodities had risen very much at the time when the decree-holder took possession, and in the next place it would, in my opinion, be very unsafe to rely upon the conduct of the decree-holder himself after delivery of possession for the purpose of determining the question what use he would have put the land to, if he had obtained possession at the proper time peacefully, for the conduct of the decree-holder during the period in which the amount of compensation was under investigation would, no doubt, be governed by the consideration that his conduct would have an influence over the decision of the Court, and in fact in this case it had a determining influence.
6. I observe that the decree-holder offered no evidence as to whether his cultivation of tobacco and chillies was profitable to him or not; and it is not at all improbable that having regard to the fact that his residence was 26 miles away and that he had no ordinary staff on the spot, the cultivation of these commodities was not profitable; they require careful and detailed attention and close supervision. l am, therefore, of opinion that the learned Subordinate Judge was wrong in awarding these large sums on account of tobacco and chilli cultivation.
7. In regard to the assessment of mesne profts on account of country crops, it appears from the Commissioner's report that the income from the cultivation of such crops in 1312 by persons resident on the spot was Rs. 9. The learned Subordinate Judge thinks this estimate too low, but it is difficult to say upon what evidence he has rejected the assessment made by the Commissioner who had the opportunity of visiting the spot. No doubt occasional plots of land in the neighbourhood have been sold or let at very high rates but this is frequently the case in lands in the neighbourhood of indigo cultivation where every deposit of seeth upon the soil adds to the saleable and lettable value of land. Having regard to the fact that the decree-holder was a purchaser at an execution sale and that he resided 26 miles away and not on the spot and that any particular soil fertility was probably due to the enterprise and the capital of the factory, I am of opinion that it would be doing justice to the parties if I award an all-round rate of Rs. 9 a tigha per year. This rate would be reduced to Rs. 4-8 for the years 1314 and 1316, the first being a year of flood and the latter a year of drought; the interest to run from the end of each year at the rate of 12 per cent, per annum up to the date upon which the decree-holder obtained possession and at the rate of 6 per cent from that date up to the date of realization.
8. The result is that the decree-holder's Appeal No. 525 of 1914 will be dismissed; the judgment-debtor's Appeal No. 400 of 1914 will be decreed in p Article The costs in both Courts to be in proportion to succe Sections
9. The Commissioner in this case, Babu Radha Krishna Dutt, was permitted by the Court to charge over one thousand rupees for his services. His enquiry lasted from the 20th of March 1912 to the 26th August 1913; he charged for 11 days spent on writing out his final report: 37 days were occupied in examining the witnesses of the decree-holder, the progress made each day being very small, 35 days were occupied in examining the judgment-debtor's witnesses, the progress being equally dilatory, 13 days were occupied in arguments. I am of opinion that this procedure involved a scandalous imposition upon the parties. The Subordinate Judge should not have permitted it.
10 I observe that the judgment-debtor complained of this imposition but without any redre Sections I would commend this portion of the judgment to the attention of the District Judge and ask him to take measures to see that Commissioners are better controlled both in respect of the conduct of their enquiries and in regard to the charges they make. In particular the accounts submitted in future by Babu Radha Krishna Dutt should be carefully scrutinised.
11. The judgment-debtor has been. made to pay the entire Commissioner's fee. I am of opinion that the decree-holder should refund half this sum to the judgment-debtor.
Roe, J.
12. I agree that Appeal No. 525 should be dismissed, and Appeal No. 400 decreed in p Article
13. When mesne profits are to be ascertained the Court should consider what a man of average intelligence and ability could, in the decree-holder's position, have done with the property. The lands had been for fifty years under cultivation by the factory ploughs. They were true zerat lands. Such true zerat lands are very highly prized. It was not likely that the new proprietor would destroy their character by leasing them at the rate prevailing in the village. He would either cultivate the lands himself or let them at something far in excess of the prevailing rate, and not greatly below the profit which he would expect from khas cultivation.
14. To ascertain the expected profit it is useful to examine the plaintiffs original claim, the claim on which he thought it prudent to pay Court-fees. This is a claim for the profits of 1312. It amounts to Rs. 1,094 in the two-thirds share. The decree for 1317 is for Rs. 1,898 and the decree for 1316 at the same rate. The suggestion that the decree-holder would have made in 1316 and in 1317 nearly twice the profit he anticipated in 1312 is on the face of it contrary to the whole principle upon which mesne profits should be calculated. I would assess profits upon the crops which in his original claim the decree-holder suggested that he would have grown if allowed possession without litigation. These crops are makai and jowkerai not wheat nor chilli; nor tobacco. The Commissioner's valuation of these crops is Rs. 655-11-3 in the sixteenannas share or Rs. 9 per bigha in that share, I can see no reason why this sum should be enhanced as it has been enhanced by the learned Subordinate Judge. I would accept the estimate made by my learned brother.
15. I concur in the order proposed in regard to interest and costs.
16. I associate myself completely in the condemnation recorded by my learned brother of the scandalous charges made by Babu Radha Krishna Dutt.