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1. We have before us four connected appeals, namely, First Appeals Nos. 95 and 124 of 1941 arising out of suit No. 120 of 1937 in the Court of the Civil Judge of Dehra Dun and First Appeals Nos. 96 and 125 of 1941 arising out of suit No. 389 of 1938 in the same Court. The parties were the same in the two suits. First Appeals Nos. 95 and 96 have been instituted by the defendants and First Appeals Nos. 124 and 125 by the plaintiffs. The plaintiffs claimed damages in the two suits upon the ground that the defendants had cut down a number of trees in the forest of Guljwari, the property of the plaintiffs, and that they had been guilty of certain breaches of an agreement or lease which was evidenced by a document executed by the plaintiffs, Joti Prasad and Jugal Kishore, on 10th September 1935. In this document Joti Prasad and Jugal Kishore are described as the first party and the defendants, Shaikh Ahmad AH, Nur Ahmad Niyaz Ahmad and Benarsi Das are described as the second party. Paragraph 1 of the agreement is as follows : "Whereas we, the first party, are the owners and zamindars of mauza Guljwari, mohal Lala Joti Prasad and Jugal Kishore, pargana Paehhwa, district Dehra Dun, recorded in the khewat as holding No. 1 according to the partition of the year 1923, the area whereof according to the public papers is 6693 bighas 3 biswas 10 biswansis out of which 5479 bighas 15 biswas 10 biswansis is uncultivated land and is occupied by forests, rivers, brooks and high and low land and the rest is cultivated. The second party has taken on lease from the first party all the sal and kokat trees sianding on the uncultivated plot aforesaid but (except?) the trees which have been exempted from the lease in lieu of Rs. 50,000. The parties have agreed to the following terms which will be binding upon their heirs and successors:" The particular terms which may be mentioned were that the whole forest should be divided into four blocks and that the operation for cutting down the trees should be carried on in the blocks successively, that is, that the cutting operations should be completed in one block before they could be begun in the next; that the whole of the operations were to be carried on between 1st October 1935 and 31st May 1940; that the defendants were not to cut down any tree which was less than 17 inches in circumference at a place 6 inches from its base and if they cut down any such tree or damaged it in the course of cutting down other trees they were to leave in its place another tree at least 18 inches in circumference; that the defendants were to supply to the plaintiffs, free of charge, 10 cartloads of pharras (which we understand means planks cut from the outer side of a tree with the bark on one side), 200 head-loads of firewood and 25 kandis (loads) of charcoal; that they were also to pay Re. 1 per cent, of the Rs. 50,000 to the servants of the plaintiffs as commission; and that this sum of Rs. 50,000 was to be paid in four instalments of Rs. 12,500 each and the commission to the servants was to be paid with the instalments. The plaintiffs complained that the defendants had cut down sal trees in plots which were not included in the lease, that they had cut down certain trees which were not sal or kokat and which were exempted from the operation of the lease, that they had cut down or damaged some trees less than 17 inches in circumference and had not left other trees standing in their place, that they had cut down certain trees in a block in which cutting operations were already completed in order to make a road and that for the purposes of the road they had removed certain stumps to which they were not entitled and that they had not supplied the pharras, firewood and charcoal in accordance with the terms of the lease and had not paid the commission due to the servants of the plaintiffs. The two suits were instituted respectively to recover damages for the loss occasioned to the plaintiffs in the years 1936-37 and 1937-38. In suit No. 120 of 1937 the learned Judge of the Court below gave the plaintiffs a decree for Rs. 5079-5-5. This sum is made up of the following items, namely:

Rs. 4903-1-5. The value of trees cut down in plots which were not included in the lease.

" 38-0-0. The value of trees cut down and stumps re-

moved for making the road.

" 112-8-0. The value of trees below 17 inches in circum-

ference which were cut down or damaged and in place of which no other trees were left standing.

" 25-12-0. The value of pharras, fuel and charcoal not supplied.

7. Learned Counsel for the defendants-appellants has urged that the Court was not justified in basing its estimates of damages upon the finding that 2551 trees had been cut down by his clients. He maintains that the burden of proof was upon the plaintiffs-respondents and that they failed to discharge it. On the pleadings it is apparent that the defendants maintained that they were entitled to cut down the trees in all the plots mentioned in para. 4 of the plaint in the first suit and that they had in fact cut down a number of trees in some of the plots and also in plot No. 506 which was not mentioned in the plaint and which we find was also excluded from the lease. It is evident from the terms of the lease that the defendants had the sole right to cut down trees in the plots included therein and it is impossible that they would have allowed others to remove trees to which they themselves claimed to be entitled. They were to all intents and purposes on their own showing in the position of trespassers and I think it Has always been held that a trespasser is bound to establish if he wishes to do so, the exact amount of, mesne profits which he has received from the property over which he has trespassed although, I dare say, the initial burden would be on the plaintiff to establish facts which would give the Court some basis for estimating the amount of damages. Learned Counsel for the defendants-appellants is, in my judgment, attempting to place an impossible burden upon the plaintiffs-respondents. Nobody has contended that the defendants-appellants cut down any trees with their own hands and it would have been impossible for the plaintiffs to prove that each individual tree had been cut down by certain people and that those people were the employees or representatives of the defendants. They can only show in a general way the amount of damage which appears to have been caused. They have examined a commissioner who was appointed by the Court and who was a respectable person against whose integrity nothing has been said or apparently could be said. This gentleman counted the stumps and measured them. The suggestion by learned Counsel for the defendants-appellants is that the fact that the stumps existed did not necessarily prove that the defendants had had the trees cut down because the stumps may have been old, that is, the trees may have been cut down at some time prior to the lease. I have been through the report of the commissioner and find that he said that three stumps appeared to be very old. It does not seem that the representatives of the defendants-appellants, who were admittedly with him, pointed out other stumps that might have been in existence before the defendants entered upon the land. The only question 'upon this point which was put to the commissioner in cross-examination elicited the answer that he was not competent to decide the age of the stumps. The commissioner counted the trees in May 1939, when it was obvious that the stumps would not have borne the appearance of being freshly cut. I think the learned Judge was justified in coming to the general conclusion that the stumps represented trees which had been cut down by the defendants-appellants in the absence of any rebutting evidence on their part. The evidence of Wazir Singh is the same as that of the commissioner. It is obvious that he could not have been present when each tree was cut down and that he could not have deposed from his personal knowledge that each tree had been cut down by somebody whom he knew to be the servant or agent of the defendants-appellants. The plaintiffs produced such evidence as they were able to produce. It was not due to any fault of theirs that Wazir Singh was not subjected to cross-examination. They could only give general evidence which would enable the Court to make some estimate of the damage caused. The burden, in my judgment, was upon the defendants to show from their accounts or registers the exact number of trees which they had removed if they were less than those which were apparently removed on the evidence produced by the plaintiffs. The defendants have produced no evidence at all either to show the number of trees which they removed or to show that any tenants or other people in their knowledge removed any of the trees from the plots in suit. They adopted the attitude which was strongly deprecated by their Lordships of the Privy Council in Murugesam v. Gnana Sambanda ('17) 4 A.I.R. 1917 P.C. 6. Their Lordships said:

8. In this connexion I may mention the question which has been raised by the plaintiffs in their two appeals, namely, that the Court was wrong to disallow a surcharge of 25 per cent, on the value of the trees which they claimed upon the ground that the trees would have been more valuable to them if they had been allowed to grow larger. It seems to me that there is this force in the argument put forward by the plaintiffs that they were entitled to the value of the trees as they were standing at the time and not to their value after they had been cut down, but there is really no evidence which would establish with certainty what the present value of the standing trees was and the fact that the high rates charged by the Forest Department for individual trees have been applied, would, in all probability, cover the difference between the value of the trees cut down as timber and their value as standing in the forest. The assessment of damages can only be approximate and there is no sufficient reason why we should interfere with the estimate at which the learned Judge arrived. For this reason I would dismiss the plaintiffs' appeals, but the argument put forward by them furnishes a further reason why the estimate made by the learned Judge should not be reduced. For the same reasons I would uphold the finding of the learned Judge in the other suit on the question of the value of the trees cut down in plots not included in the lease. The next question is whether any trees were cut down or stumps removed in order to make a road through one of the blocks. Wazir Singh gave evidence for the plaintiffs and the learned Judge believed him. Narain Singh for the defendants admitted that a road something less than a mile long was made but he and Atma Ram both deposed that it was not necessary to cut down any trees or remove any stumps. Atma Ram added that there was an old road there already. If that was so one would scarcely have described the operation as making a road. If there was no old road it is incredible that it would not have been necessary to remove any trees or stumps. The learned Judge was in a better position than we are to decide whether the witnesses were frank and truthful and if he believed the statement of Wazir Singh (even though he was not subjected to cross-examination) in preference to the very improbable statements of the defence witnesses I do not think that we are competent to say that he must have been wrong. Nd argument has been addressed to us about the cutting of the twenty-three jamun and three harar trees mentioned in suit No. 389. The learned Judge pointed out that the statements of the defence witnesses were inconsistent and once it is held that the statement of Wazir Singh is relevant, nothing can be said against the decision of the learned Judge. What one believes or does not believe is a question of fact not of law.