1. Appeal No. 279 of 1955: This appeal is by defendants 4, 6 and 7 in O.S No. 57 of 1947 on the file of the Subordinate Judge's Court, Nellore, who were also respondents 3 to 5 in I.A No. 168 of 1951 in that suit, against the final decree for mesne profits in respect of item 4 of the plaint A schedule lands, which was passed by the 1st Additional Subordinate Judge on 20th September, 1954. During the pendency of this appeal, the 4th defendant died and his legal representatives have been brought on record as appellants 4 and 5. In passing the above decree, the learned Subordinate Judge disagreed with the report of the Commissioner which, in his view, was thoroughly unsatisfactory and unhelpful inasmuch as the report was arbitrary, had no factual basis and was totally perverse. The learned Judge, therefore, carefully went into the matter and after scrutinising the evidence adduced by both sides, passed a decree in the following terms so far as defendants 4, 6 and 7 were concerned:

“It is further ordered and decreed that defendants 4, 6 and 7 do pay plaintiff Rs. 2,127-10-0 for F. 1350; Rs. 941-14-0 for F. 1351; Rs. 114-14-0 for F. 1352; Rs. 320-14-0 for F. 1353; Rs. 354-14-0 for F. 1354; Rs. 212-14-0 for F. 1355; Rs. 100/- for Fasli 1356; Rs. 53-14-0 for F. 1357 and Rs. 212-14-0 for F. 1358, with interest at 5½% per annum from she end of the Fasli till the date of the realisation.”.

2. Before dealing with the contentions advanced on behalf of appellants, a few salient facts may be stated: The respondent in this appeal had Sled the suit O.S No. 57 of 1947 on 25-3-1947, after he became a major, for setting aside the alienations inade by his paternal uncle as his guardian. The suit was decreed in respondent's favour on 2-4-1949. The impugned sale deeds were set aside and possession of A schedule property was ordered to be delivered to the respondent by the respective vendees. The decree provided inter alia that defendants 4, 6 and 7 should pay mesne profits for item 4 which was in their possession, and by clause (4) of the decree it was ordered that mesne profits, past and future, be determined on a separate application. In accordance with that direction, the respondent filed I.A No. 168 of 1951 on 26-2-1951 for ascertainment of past and future profits in respect of item 4 and the other items. Subsequently the respondent filed a memo Ex. A-1 dated 25-7-1951 claiming Rs. 1490/- as mesne profits.

3. A commissioner was appointed to hold an inquiry and file a report regarding the mesne profits claimed by the respondent.

4. On 18-1-1952, the respondent filed I.A No. 10 of 1952 seeking an amendment of the earlier memo Ex. A-I filed by him on the ground that owing to the non-availability of relevant information, he had under-estimated the income from the lands in item 4; and that he had subsequently come to know that besides grazing fees for which he had claimed profits, he was entitled to the value of the dry crops raised on the lands. On that basis an additional memo Ex. A-4 was filed setting out the particulars of the dry crops raised in those lands from F. 1350 to F. 1357 and their value.

5. The defendants contended that the profits claimed were excessive, and that the dry crops raised by them during those years yielded little or nothing. Apparently after considering the objections raised by the defendants, the Court ordered the amendment sought by the plaintiff.

6. The Commissioner submitted his report in 1952 showing the value of the dry crops raised from F. 1349 to F. 1357 in item 4 as about Rs. 26,000/- and the interest thereon Rs. 7000/. The Commissioner then struck a total of Rs. 33,273-6-0 and recommended that a decree should be passed for that sum against defendants 4, 6 and 7. Objections were filed to this report by defendants 4, 6 and 7 contending that the Commissioner had failed to consider the evidence and that his conclusions were unreasonable.

7. The learned Subordinate Judge considered the point relevant to this appeal, namely, as to what was the amount due as profits in respect of item 4 from F. 1350 to F. 1358. Having regard to the fact that the report submitted by the Commissioner was unhelpful, the learned Judge examined the evidence adduced by both sides in great detail and holding the case of the defendants that no dry crops had been raised at all, or if they had been raised, there was little or no yield, to be unacceptable, proceeded to determine the net income from those lands from the various dry crops raised on them during the period F. 1350 to F. 1358. In doing so, he placed strong reliance on the evidence of the Village Kamam, P.W 2 and of another respectable person of the village, P.W 3 as also on the village accounts. Where the evidence did not show that any dry crops had been raised in a particular fasli, the learned Judge allowed only grazing fees. He set out the income due to the plaintiff for every year in a tabular form which was annexed to the judgment, and passed a decree accordingly.

8. It will be seen that the learned Subordinate Judge did not accept the inflated figures given by the Commissioner nor the extravagant claim put forward by the plaintiff, while at the same time he refused to accept the case put forward by defendants 4, 6 and 7 that they had realised only grazing fees but little or nothing by raising dry crops on the lands in question.

9. In this appeal, the decree passed by the lower Court is assailed on several grounds and I shall deal with them seriatim.

10. Firstly, it is contended that since in the plaint the plaintiff had claimed a definite amount in respect of past mesne profits, it was not open to the Court to grant a higher sum. It is pointed out that in the plaint mesne profits were claimed as specified in schedule B attached thereto. According to schedule B, so far as item 4 was concerned, the total amount of mesne profits claimed was Rs. 790/- only, whereas the ultimate decree passed by the court below awarded more than five times that amount. As a subsidiary contention, it is argued that the lower Court was in error in allowing the amended claim by the plaintiff as per I.A No. 10 of 1952.

11. This contention overlooks the fact that the lower Court did not pass a decree in terms of schedule B but thought fit to direct that an inquiry be made with regard to mesne profits, past and future. It was in pursuance of that direction that a Commissioner was appointed and in the course of the inquiry an amended claim as per I.A No. 10 of 1952 was allowed. Admittedly the appellant did not choose to prefer an appeal against the preliminary decree, and in such a situation Section 97 of the CPC precludes the party from disputing the correctness of the preliminary decree in an appeal preferred from the final decree. Moreover, in allowing I.A No. 10 of 1952, the lower Court must have taken into consideration the fact that the plaintiff was a minor during most of the period the lands were in possession of the alienees and that only after securing public copies of the cultivation accounts of the village, he came to know that dry crops had been raised on the lands in question and defendants 4, 6 and 7 had reaped the benefit of the crops and that the income therefrom was considerable. It is also to be borne in mind that in regard to this aspect of the matter, evidence was adduced by both sides and on a careful appraisal of the evidence the lower Court has reached the conclusion that dry crops, namely, cholam, chillies, sajja and gingelly had been raised in some of the faslies.

12. Learned advocate for the appellants relies strongly on the case of Baboojan Jha v. Byjnatn Putt Jha, ILR 6 Cal 472, where a Division Bench of the Calcutta High Court held that the general rule that a plaintiff cannot recover more than he claims in his plaint, ought not to be departed from except under special circumstances. In that case, the plaintiffs had claimed as mesne profits sum of Rs. 309/- for three years but the judgment-debtor was adjudged to be liable for about Rs. 1,200/-. The learned Judges, however, pointed out that the plaintiffs in that case appeared to have been aware that the lands of which they sought possession were in the occupation of tenants paying an ascertained rent of Rs. 103/- for plaintiff's share and on that basis the plaintiffs had demanded damages at that rate on account of the loss they had sustained from the wrongful possession of the defendant. The learned Judges seemed to draw a distinction between cases where the plaint states the amount of mesne profits approximately and cases where an exact amount is claimed. It will be seen that even in that case, the learned Judges did qualify the general proposition laid down by them by the words “except under special circumstances” and further, in that case, they took note of the fact that the plaintiffs were aware of the exact income from the lands during the relevant period.

13. That decision, however, was expressly dissented from by another Bench of the same High Court in Gauri Prosad Koondoo v. Reily, ILR 9 Cal 112. The point that the Court was called upon to decide in that case was whether the plaint having stated the amount of mesne profits claimed at a certain sum of money, and the decree having directed the amount to be ascertained in execution, the plaintiff-decree-holder was estopped from claiming anything in excess of the amount stated in his plaint. As affirmative of the above proposition, the case of ILR 6 Cal 472 was relied upon. But the learned Judges proceeded to say:

“We have consulted the learned Judges who passed that judgment, and we are authorized by them to state that they did not then intend to enunciate any general rule for adoption in such cases. We are therefore at liberty to deal with this case on its own merits.”

After referring to a number of cases including an earlier Full Bench decision of the Calcutta High Court and a Privy Council ruling, the learned Judges held that there in the original suit it was declared that the amount of mesne profits should be determined in execution, the plaintiff is not estopped from proving that he is entitled to a larger sum as mesne profits than that claimed in his plaint in that context, the learned Judges also referred to Section 11 of the Court-fees Act which says that, in suits for mesne profits, or for immoveable property and for mesne profits, if the profits or the amount decreed are or is in excess of profits claimed, the decree shall not be executed until the difference of fee has been paid. At the same time, the learned Judges observed that if it should appear that, in making his original claim for mesne profits, a plaintiff has special means of knowledge for determining the amount due, the judgment-debtor can fairly use as evidence against him his own statement as embodied in his plaint.

14. Adopting the ratio of this decision, it must be held that the plaintiff in this case had no special means of knowing the exact income from the lands during the relevant period and he was, therefore, not estopped from claiming a larger sum as mesne profits than what was claimed in his plaint.

15. The next contention is that for F. 1350 and F. 1351, one of the defendants 4, 6 and 7 had a lease in respect of these lands and although the sale in favour of that person and the other defendants was set aside in the suit, as far as the period covered by the lease is concerned, the lessee could not be said to have been in wrongful possession so as to warrant decreeing the mesne profits as against him.

16. This is a new point raised for the first time in this appeal. It was cot raised either in the suit or in any of the interlocutory applications. This contention must, therefore, be negatived.

17. The last submission made on behalf of the appellants is that in the absence of a specific period being mentioned in the preliminary decree, the maximum period for which mesne profits could be awarded is three years and in this connection, reliance is placed on Article 109 of the Limitation Act there is no substance in this contention because in the plaint which was presented on 25-3-1947, mesne profits were claimed even from F. 1349. It is dear therefore that the preliminary decree was passed in terms of the relief sought by the plaintiff.

18. For the above reasons the appeal fails and is dismissed with costs.

CF/L/V.B.B

19. Appeal dismissed.