JUDGMENT
Cuming, J.
1. These two appeals arises out of certain execution proceedings.
2. It would appear that so long ago as 1904 two suits were brought by the two decree-holders Kumar Basanta Kumar Roy and Bibi Jaroa Kumari Saheba for recovery of khas possession of their respective 5 annas share in certain char lauds.
3. The suits were brought against the Secretary of State for India in Council, Srish Chandra Sanyal and a number of other persons among whom may be noted the parties who may be described as the Kundu defendants. With regard to the suit of Kumar Basanta Kumar Roy the suit was decreed with costs and mesne profits against the principal defendants and the defendants added, which included Defendants Nos. 1-15 and 18. A similar decree was passed in the suit of Bibi Jaroa Kumari against the same defendants. Both suits were fought up to the Privy Council with varying success in the different Courts. The decision of the Privy Council was in favour of the plaintiffs in both suits.
4. In these execution proceedings the main points contested were the period for which mesne profits had been decreed by the trial Court, the basis on which the mesne profits were to be assessed and who was liable to pay those mesne profits. The executing Court held that mesne profits had been decreed only up to the date of the institution of the suit and not up to the date of delivery of possession as contended by the decree-holder. With -regard to the basis on which the mesne profits were to be assessed the executing Court held that the correct basis was the rental basis. The Court also apportioned the liability among the different defendants. The decree-holders have appealed in both the cases and on appeal nave challenged the findings of the executing Court on all the points I have mentioned. The first point to be determined is for what period the decree-holder is entitled to mesne profits.
5. The decree states no period. It states that the suit is decreed with costs and mesne profits. The respondent contends that all that the decree-holder asked for was mesne profits up to the date of the suit and that from that fact it is clear that in using the expression “mesne profits” the Court clearly intended mesne profits only up to the date of suit. He contends that the Court cannot be held to have given the decree-holder a relief which he never asked for. The point for our decision is the correct construction of the decrees.
6. The sheet-anchor of the decree-holder’s case is the decision of the Privy Council in the case of Fakharuidin Mohammad Ahsan Chaudhury v. Official Trustee of Bengal [1881] 8 Cal. 178. In that case the terms of the decree were that the plaintiff be declared entitled to possession with wasilat from the commencement of Sraban. Their Lordships, in considering the plaint, held that it was at all events open to the construction that the plaintiff’ did intend to claim wasilat up to the time of delivery of possession, although for the purpose of valuation of the suit only so much was valued, as was then due. They pointed out that under the law wasilat could be given up to the date of possession and concluded their judgment by saying that it appeared to their Lordships that the more reasonable construction of the document is that the Court intended to give with possession that wasilat which was claimable up to the time of possession.
7. Finally, their Lordships referred to a number of cases and pointed out that this was not a case in which the decree was silent on the subject of wasilat but that it expressly mentioned wasilat and that the expression “wasilat with possession” might reasonably be held to have the construction put upon it by the High Court, viz., wasilat up to the time of delivery of possession. Now, I do not propose for one moment to attempt to construe the present decree by the decree in the suit which was being dealt with by the Privy Council, but in construing the present decree I propose to apply the same principles which their Lordships applied in construing the decree before them. It is clear from the judgment I have just referred to that a Court construing the decree may look at the term of the plaint itself.
8. Now in the decree the Court has set out the major portion of the plaint. In the plaint the plaintiff in Appeal No. 260 claimed Rs. 7,545 made up as follows : Rs. 6,159-9-0, the value of the land and Rs. 1,231-5-9, the mesne profits for three years and finally asked for possession and mesne profits claimed. The respondent argues that clearly the plaintiff made definite prayer therefore for the masne profits claimed, viz., Rs. 1,231-5-9 and therefore by implication he claimed these mesne profits and these only and intended to get the reminder by a separate suit.
9. The appellants contend that the expression “mesne profits claimed” means the mesne profits claimed in the heading to the suit where the suit is described as a suit for recovery of immovable property and mesne profits, and that the value of mesne profits up to the date of suit had to be given for the purpose of valuation of his suit.
10. After a careful consideration of the decrees I hold that the reasonable construction to be put on them is that the value of the mesne profits was given up to the date of suit for the purposes of valuation and that what the Judge intended to give and has given in his decree were mesne profits up to the date of delivery of possession.
11. As far as can be seen this was the interpretation that was put on the decrees by the parties themselves up to the execution proceedings. The Kundus themselves in their objections to execution contended that all that the decree-holders arc entitled to get is mesne profits from 5th December 1903 to 13th February 1918. No doubt this would not prevent the judgment-debtor from contending that they had misunderstood the decree. In paragraph 9 of the plaint in which the value of the mesne profits is given as Rs. 1,389, it is, I think, clear that the amount was stated for the purposes of assessing stamp-duty. That is I think evident from the fact that the paragraph goes on to state:
So the plaintiffs bring their suit on paying the proper Court-fees on a valuation of Rupees 7,545-11-8, being the total of the aforesaid two sums.
12. The judgment-debtors have laid much stress on Sub-clause (b). The words used in the clause are : “A decree may be given for the mesne profits claimed with interest till date of realization.” The judgment-debtors strenuously contend that the expression “mesne profits claimed” can only refer to the mesne profits of which the valuation has already been set out in para. 9.
13. I do not think that it is necessary to give this meaning to the expression “mesne profits claimed.” The plaintiffs described their suit as one for mesne profits and the expression “mesne profits claimed,” I think, may reasonably be considered to refer to the general claim for mesne profits and not only to the mesne profits up to the date of suit, the value of which it was necessary to state for the purposes of assessing the stamp-duty. I am therefore of opinion that the decree-holders in these two appeals are entitled to mesne profits down to the date of delivery of possession.
14. The next question to be considered is what is the basis on which the mesne profits are to be assessed. The executing Court has allowed mesne profits on what is called a rental basis, that is to say, the amount of profits which have been received by the decree-holders if he had been in possession and had let out the land at a money rental to raiyats. The decree-holders contend that the Court should have gone into the nature of possession of the land exercised by the judgment-debtor. They contend that the judgment-debtors were in khas possession of some of the lands and that some of the other lands they let out to bhag tenants, in which case they received half the produce of the land. They contend that the defendant Srish Chandra Sanyal was on his own admission in actual possession by actually cultivating the land himself or through bhag tenants.
15. The Kundu defendants, who alone are really contesting these appeals, contend that they let out the land in putni to Srish and that all they are liable for is the amount of rent that they obtained from Srish as sub-lessee under them. They contend that the decree-holder being a zamindar would have let out the land in putni. Now mesne profits are defined in the Code as those profits which the persons in wrongful possession of such property actually received or might with ordinary diligence have received therefrom together with interest on such profit, but shall not include profits due to improvement made by the person in wrongful possession. Now in this case the person or rather persons in wrongful possession were mainly the Kundus and Srish.
16. The principle which the learned Judge has followed in his judgment is this : If the person kept out of possession is a cultivating raiyat he would be entitled to mesne profits on a produce basis, that is to say, the net value of the produce received after he has paid the necessary cost of cultivation, etc., but that if he happens to be a tenure-holder, that is, a rent-receiver from the raiyats on the land he should get the mesne profits on a rent basis, viz., the amount he would have received by way of rent from the raiyats. In support of this contention he has cited a number of rulings. It perhaps is not easy to deduce any general principle from the decisions. They really each of them, apply to the particular facts of the particular case they were dealing with. For instance, hi the case of Surja Pershad v. Reid [1902] 29 Cal. 622, it was held that where a decree-holder was in constructive possession by letting out the lands to tenants before ouster, the mesne profits should be measured by what would be a fair and reasonable rent for the land if they had been let out to tenants during the period of dispossession. At the same time the learned Judges remarked that there was no general principle which could be made applicable to every case.
17. They consider that the Judge in the particular case before them should have ascertained what was the nature of the possession of the decree-holder before he was dispossessed. In the case of Bireswar Dutt Chaudhury v. Baroda Prosad Roy [1910] 15 C.W.N. 825 the learned Judges held and with the greatest respect I consider rightly that mesne profits must be assessed according to the expresss provision of the statute with reference to what the wrong-doers might or might not have realized and not with reference to what the rightful owner was receiving before eviction. Further they held-and here again I entirely agree that where more persons than one are concerned in the commission of a wrong, the wronged person has his remedy against all or any at his choice. Every wrong-doer is liable for the whole damage and it does not matter whether they acted as between themselves as equal or one as agent of the other. Therefore a trespasser is liable jointly with his lessees for the entire amount of mesne profits and not merely to the extent of the rents realized by him. As I have already remarked each of these decisions must be considered in the light of the particular fact of the particular case. So long as we have the express word of the statute we can hardly hold that any general principle is laid down by any of them; for we have the statute itself to guide us and the principle to be followed is obviously the principle laid down in the statute itself. Now, what are the facts of the present case? The land is char land; it had been under water for some 40 years; and there is not the slightest evidence to show even if it were a factor to be taken into consideration how the plaintiff decree-holders used the land before diluvion. We are not, I think, entitled to assume, even if it were a factor to be taken into consideration, that the zamindar would have let out the land in putni as the Kundua allege they themselves did.
18. The decree-holders are entitled to get the profits actually received by the person or persons in wrongful possession. If Srish let out any of the land in bhag or kept any of the land in his khas cultivation the decree-holders are entitled to get what Srish actually got.
19. The decree-holders state that Srish had an area of some 600 bighas in khas or bhag cultivation. The Commissioner finds that Srish had no land in either khas or bhag cultivation. It is difficult to see how the Commissioner arrived at the conclusion in the face of Srish’s own written statement in which he stated that the plaintiffs could not get khas possession as he Srish had been in possession for more than 12 years by cultivating the land himself or in partnership with tenants and by selling grass and jungle and by receipt of rents. Further we have the fact that in pattah granted by Srish the boundaries are sometimes given as the sarkari or zamindar’s khas land.
20. No doubt Srish in his evidence later on denied all these and gave a more or less untruthful explanation. The Commissioner seems to have accepted the statement though it is difficult to understand why Srish produces none of his papers. There is a well-known principle that everything is to be presumed against the wrong-doer.
21. Where on Srish’s own statement and from his evidence supplied by his own pattah it is clear that some of the land, was held on a produce rent, the Court is entitled to presume that it was all so held and the burden of proof is on the wrong-doer to show that it was otherwise.
22. The principle which I think is to be followed in the present case is that it having been proved that some of the land has been let out at a produce rent, the Court is entitled to assume that all the land was let out at a produce rent and it is for the tort-feasors to show that it was not. They have their papers and by the production of their papers can at once prove how they actually dealt with the land.
23. The case will have to go back to the executing Court now to ascertain what is the amount of mesne profits up to the date of delivery of possession and in arriving at the amount the Court should be governed by the above principles.
24. With regard to the next point, who are the persons liable to pay the mesne profits, that has already been decided in the decree of the trial Court.
25. The trial Court gave a decree with costs, interest and wasilat against the principal and added defendants. The amount was left to be decided in the execution department but it is clear from the decree that all the defendants are jointly and severally liable for the whole amount of mesne profits.
26. The only defendants, the extent of whose liability had to be determined by the executing department, were Defendants Nos. 1 and 5. The executing Court has found that Defendants Nos. 1 to 5 are liable for a certain amount in each case.
27. Reading, however, the judgment as a whole I think it is quite defer (see pages 155-156) that the learned Judge must have meant Defendants Nos. 1 and 5. He only discusses the case of Defendants Nos. 1 and 5, and as a matter of fact that was the only case open to him to discuss in view of the decree of the trial Court. If, however, he has found that Defendants Nos. 1 to 5 are liable for mesne profits in one case to the extent of Rs. 645-10 as and in the other to the extent of Rs. 564-14, he is obviously wrong. The decrees were against all the defendants.
28. Only the liability of Defendants Nos. 1 and 5 had to be separately assessed.
29. So far as all the other defendants are concerned the decree makes them all jointly and severally liable for the whole amount.
30. One other small matter remains to be decided. The representatives-in-interest of Jaroa Kumari who has died and whose interest has devolved on a number of persons ask the Court that the executing Court should apportion the mesne profits among the five decree-holders. Obviously this is not a question that can be determined in the present proceedings.
31. The appeals must succeed and be decreed and the case go back to the executing Court to determine the amount of mesne profits payable by the defendants bearing in mind the direction given above.
32. As it is clear from the learned Judge’s judgment whether he correctly assessed the liabilities of Defendants Nos. 1 and 5, this point should also be determined by the executing Court. The appellants are entitled to their costs from the Kundu defendants who have contested these appeals. We allow 20 gold mohurs in each appeal.
33. The cross-objections not being pressed are dismissed, but without costs.
Page, J.
34. (After setting out the facts his Lordship proceeded.) It is common ground that under these decrees the plaintiffs are entitled to mesne profits for a period of three years prior to the date when the suits respectively were instituted. The respondents, however, contend, and the learned Subordinate Judge has held, that the plaintiffs are not entitled to mesne profits pendente lite or thereafter until the defendants gave up possession of the land, inasmuch as such additional mesne profits were neither claimed in the plaint nor expressly decreed by the Court. I am of opinion that there is no substance in this contention, and that the plaintiffs-appellants are entitled under the decrees to mesne profits until delivery of possession. This appears to be clear from the form of the decrees. Ex concessis part of the plaintiffs claim was for mesne profits up till the date when the suit was instituted, and since the claim in each suit was decreed with mesne profits it follows that the mesne profits which were decreed in addition to the claim must be mesne profits other than and in addition to the mesne profits up till the date of the suit which formed part of the claim.
35. But it is urged that as the plaintiffs did not claim to recover future mesne profits in their plaint the Court could not have intended to award them some relief for which they did not pray. I do not think, however, that the plaintiffs limited their claim in the plaint to such mesne profits only as accrued prior to the institution of the suit. At the commencement of the plaint in Suit No. 425 of 1904, it is stated to be a
suit for declaration of title to and for recovery of possession of immovable property and mesne profits valued at Rs. 7,545-14-8, increased by order of Court, dated 7th June 1906.
36. A similar statement appears at the commencement of Suit No. 5 of 1905.
37. No doubt in para. 9 of the plaint in each suit the mesne profits up till the date of suit are valued at a specified sum; but that was done because it was incumbent upon the plaintiffs to value the mesne profits then due for the purpose of the assessment of Court-fees, and it is not reasonable to presume that they did so because they sought only to recover such prior mesne profits in the suit. Further, in each suit the plaintiffs prayed for any other relief to which the Court might think them entitled, and that prayer would cover mesne profits subsequently accruing, for in respect of such mesne profits there is no cause of action at the time of the commencement of the suit, and it is only by means of statutory provisions framed with the obvious purpose of shortening litigation that they can be awarded in the suit; Bhupendra Kumar Chakravarty v. Purna Chandra Bose [1916] 43 Cal. 650, Code of Civil Procedure, 1882, Section 211.
38. The construction which we put upon the decrees in these suits is that which found favonr with the Judicial Committee of the Privy Council in Fakharuddin Muhammad v. Official Trustee of Bengal [1881] 8 Cal. 178. Their Lordships after expressing the opinion that the plaint in that case was
at all events open to the construction that the plaintiff intended to claim wasilat up to the time of delivery of possession, although for the purpose of valuation only so much was valued as was then due,
added that:
be that as it may…wasilat by law is demandable up to the time of possession, and the question is whether the Court intended to give to the plaintiff that amount of wasilat to which he was undoubtedly entitled by law in this action, or whether they intended to out his claim for wasilat into two, and to give him in this suit so much only as accrued up to the time of the commencement of the suit, and to leave him to bring a separate suit for the rest. It appears to their Lordships that the more reasonable construction of this document – which undoubtedly might have been clearer – is that the Court with a view to carrying out the object of the legislature, namely, the prevention of unnecessary litigation and multiplication of suits, intended in this suit to give with possession that wasilat which was by law claimable up to the time of possession. The view which their Lordships take of the decree is much confirmed by two cases of Dhurm Narain v. Bundhoo Ram [1869] 12 W.R. 75 and Banshee Sing v. Nuzuf Ali Beg [1874] 22 W.R. 328, to which their attention has been called, wherein it would appear that the High Courts have, dealing with words identical or extremely similar, given them the interpretation that possession with wasilat means wasilat up to the time of possession being delivered. Their Lordships cannot but fear that, if they were to hold the contrary, they would throw doubt upon any cases which have been decided and acted upon in India.
Their Lordships do not feel at all pressed by the authority of several cases to which their attention has been called, the doctrine of which has been confirmed by this Board, namely, that where a decree is silent on the subject of interest or wasilat, interest or wasilat cannot be added in the course of execution. But here the decree is not silent on the subject of wasilat. On the contrary, it is expressly mentioned; and the term ‘possession with wasilat’ appears to them reasonably to bear the construction which has been put upon it by the High Court not only in this but in many other cases.
39. For these reasons, I am of opinion that under the decrees in the present suits the plaintiffs are entitled to mesne profits not only for three years prior to the institution of the suits respectively, but also pendente lite and until the 13th February 1919 when they obtained delivery of possession. Moreover, it is to he borne in mind that, although no ground of appeal based upon estoppel is set forth in the memorandum of appeal, and no oral evidence was adduced to prove that the plaintiffs had altered their position by reason of the reliance which they had placed upon any representation by the defendants to the effect that they admitted that under the decree the plaintiffs were entitled to future mesne profits, nevertheless for twenty years the litigation proceeded upon that assumption, and as late as 1919 the Kundu defendants in their petition of objection filed in the present execution proceedings; admitted that the plaintiffs were entitled to recover future mesne profits, although they disputed the plaintiffs’ estimate of what those mesne profits were. In these circumstances if it was incumbent upon the Court at this late stage in the litigation to hold that the plaintiffs were not entitled to future masne profits, the result, to adopt the language used by Sir James Colville in Sadasiva Pillai v. Ramalinga Pillai [1875] 2 I.A. 219, would be discreditable to the administration of justice.
40. In my opinion, however, there would be no justification for placing upon the decrees the construction which the respondents have pressed upon us. I am further of opinion that tinder the decrees the judgment-debtors are jointly and severally liable for the mesne profits which have accrued during the period for which the mesne profits are recoverable, or for such part thereof as accrued during that portion of the period in which each of them respectively has been in possession of the lands in suit.
41. The second question now arises for consideration, namely, upon what basis are such mesne profits to be ascertained? In this connexion the respondents have relied upon two main contentions : (1) that the plaintiffs are entitled to recover from the defendants only such profits as the plaintiffs using reasonable diligence could have made if they had been in possession of the lands, and inasmuch as the plaintiffs are either zamindars or putnidars and would not themselves have worked as cultivators of the land, they are only entitled to recover mesne profits upon a rental basis; (2) that each of the judgment-debtors is liable only for the portion of the mesne profits that he actually received or with reasonable diligence might have received during the period in which he was in wrongful possession; that is to say, the person in actual possession is liable only for the net profit which he received after deducting expenses, and the rent that he paid to his landlord, while the landlord is liable only for the rents which he received less the cost of collection. Many authorities, both Indian and English, have been cited to us upon this subject some of which admittedly are conflicting, while in others it is not always easy to discover the ratio decidendi upon which the decisions proceeded. If I refrain from discussing those authorities in detail I do not do so because I have failed to appreciate the skill and care with which the arguments on behalf of the parties have been presented to us, or, indeed, because to do so might be to make “confusion worse confounded,” but because the basis of assessment is laid down in Section 211 of the Civil Procedure Code, 1882, which runs as follows : ‘Mesne profits’ of property mean 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.
42. Now, this definition of mesne profits clearly is fatal to the first contention, urged on behalf of the respondents; for the basis of assessment prescribed is not what the plaintiff might have made out of the land if he had been in possession, but the profit that the person in wrongful possession actually received, or with ordinary diligence might have received out of it. No doubt, in certain cases the profit which the plaintiff had made in the past while in possession of the land may be evidence of value in estimating the profit which the wrong-doer while in possession ought to have made; but the basis of assessment in all cases remains the same, namely, that provided in the statutory definition.
43. Now, what is the foundation in law of a cause of action for mesne profits? It has been stated to be in consimili casu with a cause of action for trespass. But mesne profits are not the sole or the normal form in which damages are awarded for trespass to land. One person may trespass upon the land of another without depriving that other of the possession to which he is entitled; for instance, he may walk over the land, or project missiles thereon from without or again, by violence or threats he may; prevent the person entitled to possession from remaining on the land, although the wrong-doer himself does not take possession. In such cases, no doubt, the wrong-doer is liable to an action on the case for such damages as the Court may think it right to award, and if more persons than one combine to commit the tort, each of such persons is jointly and severally liable for the entire damages which have been sustained by the person whose legal rights have been invaded. In cases of this description the damages are at large, and the Court awards a sum which it deems to be commensurate with the injury that the plaintiff has suffered. But in such cases the wrong-doers are not liable for mesne profits; for mesne profits in the eye of the law are damages to be ascertained upon a definite basis that are recoverable against a person, because he has been in wrongful possession of land of which the plaintiff is entitled to be in possession.
44. The foundation of the cause of action for mesne profits is the wrongful possession of the defendant and the question to be determined in each case is the amount of the profits which the wrong-doer while in possession received, or if he had used ordinary diligence ought to have received, out of the property. The sum which represents the mesne profits, m my opinion, is invariable and indivisible, and is payable in sodium by each and every parson who is in wrongful possession of the property.
45. But, as Lord Mansfield, C.J., asked in Burne v. Richardson [1813] 4 Taunton 720:
Must not the Defendant in an action for mesne profits be the person in actual possession and trespassing?
46. The answer would seem to be that although mesne profits are measured by the profits of the wrong-doer in actual occupation, and he is the person from whom prirna facie mesne profits are to be recovered, yet, if some other person has so conducted himself in connexion with the wrongful possession of the person in actual occupation that he is regarded in law as being jointly in possession with the person in actual occupation, such other person is jointly and severally liable with the person in actual occupation for the whole of the mesne profits which have accrued : Doe v. Harlow [1840] 12 A. & E. 40; Doe v. Challos 18 Q.B. 224; Powell v. Aiken 4 K. & J. 343; Campbell v. Leader 3 H. & C. 520; Bireswar Dutt Chaudhury v. Baroda Prosad Roy Chaudhury [1910] 15 C.W.N. 825; Madan Mohan Singh v. Ram Das Chakravarti [1880] 6 L.R. 357; S.A. No. 4101 of 1910, S.A. No. 465 of 1916 and S.A. No. 2293 of 1923.
47. With respect to the doctrine propounded by Mookerjee and Teunon, JJ., in Ram Ratan Kapali v. Aswini Kumar Dutt [1910] 37 Cal. 559 that persons who are found to be jointly in wrongful possession of the plaintiff’s land and liable for mesne profits, are entitled to have the sum awarded to the plaintiff for mesne profits apportioned as between them and the plaintiff if the Court is of opinion that the joint tort-feasors remained in wrongful possession in the bona fide belief that they were entitled to be in possession, and with a conscience void of offence I confess, with all due respect for those learned Judges, that I can find no-principle or authority in support of it; while the speeches in Palmer v. Wick Steam Shipping Co. [1894] A.C. 318 upon which their Lordships rely, and in the course of which the House of Lords had occasion to discuss the question whether there could be contribution between joint tort-feasors, appear to me to be incompatible with any such doctrine. I am of opinion, however, having re-regard to the facts in the present case, that neither the Kundu defendants nor Defendant No. 2 can be brought within the category of persons to whom this doctrine could in any event be made applicable; and that such a doctrine, if applied in this case, would work considerable hardship upon the plaintiff’s; for the Kundu defendants (who are really the contesting respondents, and who, in my opinion, have rightly been held jointly liable for mesne profits with the Defendant No. 2 who was in actual possession), are men of substance, while the Defendant No. 2 is wholly without means with which to liquidate the judgment-debt.
48. For these reasons, I agree that the appeal must be allowed, and the case sent back for re-consideration as proposed by my learned brother.
