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Case Number

SA No. 1274 of 1954

Attorney(S)

Basanta Kumar Panda
Jitendra Nath Guha and Manan Kumar Ghose

Judges

Das Gupta
Law, JJ.

Acts

provisions of clause (c) of Order 20, rule 12(1)
provisions of sub-rule (2) of Order 20, rule 12
Order 20, rule 12
sub-rule (2)

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Smart Summary

Structured Summary of the Opinion (Das Gupta, J.)

Factual and Procedural Background

The plaintiff (the present appellant) sued the respondents and obtained a preliminary decree dated 13 March 1951. The operative parts of that decree declared the plaintiff's title to certain lands (Schedule Ka to the extent of a 1/5th share and exclusive title to lands of Schedule Kha), provided for possession (khas possession to be obtained in respect of Schedule Kha), dismissed the claim for damages or compensation, and directed that the plaintiff "will get mesne profits in respect of the lands of Schedule Kha so long as they remained in possession of the defendants" with the amount to be determined later in accordance with law.

On 5 May 1951 the plaintiff applied for the appointment of a Commissioner to investigate mesne profits. The Commissioner reported amounts for various items (produce, standing fruit-bearing trees, trees cut including Velki bamboos, and fish). The trial court accepted the report, made additional provisions for mesne profits for year 1358 and assessed a total of Rs. 2260-13-0. After payment of additional court-fees a decree for Rs. 2260-13-0 was drawn in favour of the plaintiff. The defendants appealed.

The appellate judge re-examined the preliminary decree and held that the plaintiff was not legally entitled to recover mesne profits from co-sharers except Rs. 200 for bamboos (C.S. plot No. 162), rejected the Commissioner's finding regarding fish, set aside the trial court's decree for Rs. 2260-13-0, and directed the defendants to pay only Rs. 200. The plaintiff (appellant) then appealed to the court authoring this opinion.

Additional chronology noted in the opinion: the plaintiff actually recovered possession of the Schedule Kha land in May 1954; the suit had been instituted in Baisakh 1354 (so events/years in the Commissioner's report are referenced to those year numbers).

Legal Issues Presented

Whether the learned appellate judge could re-open or examine the correctness of the preliminary decree (i.e., whether the preliminary decree could be questioned on appeal when no appeal had been taken against it).
Whether an application for enquiry into mesne profits under Order 20, Rule 12(1)(c) is premature if made before (a) three years have expired from the date of the decree, or (b) delivery of possession to the decree-holder through the Court, or (c) relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court.
Whether an enquiry and resulting decree assessing mesne profits for only part of the period awarded by a preliminary decree precludes subsequent enquiries or decrees for the remaining period (i.e., effect of Order 20, rule 12(2) which contemplates a "final decree" in light of interim assessments).
Whether the trial court's pro rata assessment for mesne profits for the year 1358 (where the Commissioner made no report for 1358) was a permissible inference or an improper surmise.
Whether the plaintiff is entitled to mesne profits for the year 1353 given that the suit was instituted in Baisakh 1354 and the claim for compensation was rejected.

Arguments of the Parties

Appellant's Arguments

The learned appellate judge was not free to question the legality or correctness of the preliminary decree passed on 13 March 1951 because no appeal had been taken against that preliminary decree; accordingly the appellate court should have proceeded on the basis that the decree for mesne profits was correctly made.
The plaintiff applied for enquiry into mesne profits as permitted by the decree and by rule; the application for enquiry was therefore properly brought and not premature.

Respondents' Arguments (as presented through Mr. Guha)

Although counsel conceded he could not support the view that the appellate judge was free to re-open the preliminary decree, he argued that the application for mesne profits should be rejected as premature.
The respondents relied on clause (c) of Order 20, rule 12(1) which limits the enquiry period to the institution of the suit until the earliest of (i) delivery of possession to the decree-holder, (ii) relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or (iii) expiration of three years from the date of the decree — and contended that a right to apply for ascertainment of mesne profits accrues only when one of these events has occurred.
Relying on sub-rule (2) of Order 20, rule 12, the respondents argued that because a final decree in respect of mesne profits must be passed according to the inquiry, interim assessment(s) would cut off the plaintiff's right to further claims for the remainder of the period.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Harakhpan Missir v. Jagdeo Missir, (1) I.L.R. 4 Patna 57	The view (in that decision) that where a decree awards future mesne profits, the right to apply for ascertainment of the amount of the mesne profits does not accrue until the period awarded has expired.	The court explicitly rejected this decision as incorrect for the reasons given in the opinion and declined to follow it.

Court's Reasoning and Analysis

The court proceeded in stages and grounded its conclusions on interpretation of the decree language and the procedural rule (Order 20, rule 12):

Preliminary decree and its scope: Although the preliminary decree did not reproduce verbatim the formula of Order 20, rule 12(1)(c), the court read the decree as amounting to a direction consistent with clause (c) — i.e., that the plaintiff was entitled to mesne profits from the institution of the suit until the earliest of delivery of possession, relinquishment with notice, or the expiry of three years from the date of the decree.
On whether the appellate judge could re-open the preliminary decree: The opinion notes that respondent's counsel conceded he could not support the appellate court's view that it could question the preliminary decree; the court accepted that concession and treated the preliminary decree as binding for purposes of ascertaining mesne profits.
On prematurity: The respondents had argued that an enquiry under clause (c) is premature unless one of the three events listed occurs. The court rejected this restrictive construction. It held that nothing in Order 20, rule 12 or any legal principle prevents a plaintiff from making an application for enquiry under that rule as soon as the decree has been made. The court explained that:
- Sub-rule (2)'s statement that "a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry" does not mean that no interim decree for part of the period can be made.
- It is just and convenient to allow a successful plaintiff to recover part of the mesne profits as early as possible; many years may elapse otherwise and principles of justice and equity do not require forcing the plaintiff to wait.
- A decree assessing mesne profits for an intermediate period should not be treated as the only "final decree" in the strict sense that would bar subsequent assessment for the remaining period.
On precedent: The court considered the Patna High Court decision (Harakhpan Missir v. Jagdeo Missir) which had taken a contrary view on limitation and the accrual of the right to apply for ascertainment of future mesne profits. The court declined to accept that decision as correct for the reasons it had given.
On the trial court's pro rata assessment for 1358: The court held that the trial court erred in making a pro rata assessment for the year 1358 where the Commissioner made no report for 1358. That assessment was characterized as an "illegal surmise" rather than a legitimate inference from evidence. Because the Commissioner's enquiry had been confined to the period up to 1357, the decree should be limited accordingly.
On entitlement for year 1353 and fish findings:
- The suit was instituted in Baisakh 1354 and the claim for compensation was rejected, so the plaintiff was not entitled to mesne profits for year 1353; amounts assessed by the Commissioner for 1353 must be excluded.
- The appellate court's factual finding that the ditch did not contain "such fish" was a finding of fact binding on the court and therefore the trial court's grant of Rs. 250 for fish must be deducted.
Mathematical adjustments and final entitlement: Starting from the trial court figure of Rs. 2260-13-0, the court deducted:
- Rs. 213-8-0 and Rs. 131-15-0 (sums assessed by the trial court for year 1358 in respect of produce and standing fruit-bearing trees — which the court disallowed because there was no Commissioner report for 1358);
- Rs. 73-2-0 (sums assessed by the Commissioner in respect of year 1353 — disallowed because suit began in 1354 and the claim for compensation was rejected);
- Rs. 250 (granted by the trial court for fish — disallowed because the appellate court's contrary finding of fact was binding).
After these deductions the court calculated that the plaintiff was entitled to Rs. 1592.25 N.P. for mesne profits for the period from institution of the suit up to the end of 1357. For any further period the plaintiff would have to take steps as advised.
Costs and concurrence: The court awarded costs to the appellant here and below. A second judge (Law, J.) concurred with the reasoning and result.

Holding and Implications

Holding: The appeal is allowed. The court held that an application for enquiry under Order 20, rule 12 may be made as soon as the decree awarding mesne profits has been made (i.e., the application was not premature). The trial court's pro rata assessment for year 1358 was set aside for lack of evidence, certain amounts assessed for 1353 and for fish were disallowed, and the decree was modified to award the plaintiff a sum of Rs. 1592.25 N.P. on account of mesne profits up to the end of 1357. The appellant was awarded costs here and below.

Implications:

The direct effect on the parties is (i) the plaintiff obtains a modified decree for mesne profits totaling Rs. 1592.25 N.P. for the period up to the end of 1357, and (ii) the defendants are directed to pay that sum and to bear costs as ordered.
The court articulated and applied a legal principle on procedure under Order 20, rule 12: a plaintiff is not required to wait for the expiry of the three-year period (or delivery/relinquishment of possession) before seeking an enquiry into mesne profits; interim assessments for part of the period are permissible and do not ipso facto bar later assessments for remaining periods.
The court expressly refused to follow the Patna High Court decision cited (Harakhpan Missir v. Jagdeo Missir) on the contrary point.
If the opinion discusses no broader implications beyond these adjustments and the procedural principle, the primary consequence is the adjustment of the award and the clarification that interim mesne-profits enquiries and decrees are permissible; the opinion does not purport to create a qualification beyond the interpretation and application of Order 20, rule 12 as explained in the text.

Author of opinion: Das Gupta, J. (with Law, J. concurring).

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Kanai Lal Maity v. Shyam Kishore Das

Das Gupta, J.:— In the suit brought by the present appellant against these respondents, he obtained a decree, the relevant portion of which was in the following terms:

“Plaintiff's title to the lands of Schedule Ka to the extent of 1/5th share is hereby declared. He will get possession therein and will remain in possession of the same jointly with the defendants. Plaintiff's exclusive title to the lands of Schedule Kha is declared. He will get khas possession therein by evicting the defendants therefrom. His claim for damages or compensation is dismissed. He will get mesne profits in respect of the lands of Schedule Kha so long as they remained in possession of the defendants. The amount of the same will be determined hereafter in accordance with law.”

2. This decree was made on the 13th of March, 1951. We are informed that the plaintiff actually recovered possession of the Kha Schedule land sometime in May, 1954. Long before this date, on the 5th of May, 1951 he made an application for the appointment of a Commissioner for investigation as regards the mesne profits. The Commissioner reported that the plaintiff was entitled to a sum of Rs. 854/- on account of mesne profits in respect of produce grown in the land for the years 1854 to 1357, that he was also entitled to a sum of Rs. 659-9-0 for the years 1353 to 1357 in respect of profits out of standing fruit-bearing trees, that he was further entitled to a sum of Rs. 283-12-0 in respect of trees cut and taken away including Velki bamboos and finally to a sum Rs. 250/- in respect of fish taken from the tank. The trial Court accepted this report end after making some further provisions in respect of mesne profits for the year 1358 in respect of produce grown in the lands and mesne profits out of standing fruit trees and also as regards fish taken from the tank held that the plaintiff was entitled to a decree for mesne profits for Rs. 2260-13-0 and after the plaintiff paid additional court-fees in view of sums now assessed he made a decree in his favour for a sum of Rs. 2260-13-0. The defendants appealed. The learned Judge who heard the appeal considered himself free to examine the correctness of the preliminary decree which had been made in March, 1951 and held that the plaintiff was not legally entitled to recover any mesne profits from his co-sharers in respect of either of the plots in Schedule Kha save and except a sum of Rs. 200/- on account of vice of bamboos cut down and appropriated by the defendants out of C.S plot No. 162. He also refused to accept the Commissioner's finding as regards mesne profits in respect of fish. Accordingly, he set aside the trial Judge's order directing the payment of Rs. 2260-13-0 on account of mesne profits and directed the defendants to pay a sum of Rs. 200/- only on account of mesne profits.

3. The first question raised on behalf of the appellant against the decree of the lower appellate court is that the learned Judge was not free to consider the legality of the preliminary decree. No appeal was taken against that preliminary decree and so the learned Judge in ascertaining the mesne profits was bound to proceed on the basis that the decree for mesne profits was correctly made. This is certainly the correct legal position and Mr. Guha who appeared before us on behalf of the respondents conceded at once that he was unable to support the view of the learned court below that the correctness of the preliminary decree could be questioned by hire. He, however, contended that the application for mesne profits should be rejected on the ground that it was premature. He has drawn our attention to the provisions of clause (c) of Order 20, rule 12(1) which provides that the enquiry as to mesne profits under this clause may be for the period from the institution of the suit until (1) the delivery of possession to the decree-holder, (2) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or (3) the expiration of three years from the date of the decree whichever event first occurs. The argument is that only if three years from the date of the decree has expired or even prior to that, possession has been delivered to the decree-holder through Court or possession has been relinquished by the judgment-debtor with notice to the decree-holder through Court that an enquiry can be made. From the words of the preliminary decree passed in this case which have already been set out we find that the learned Judge did not state in so many words that the enquiry should be as regards mesne profits from the institution of the suit until the delivery of possession to the decree-holder or the relinquishment of possession by the judgment-debtor or the expiry of three years from the date of the decree which ever event first occurs. He merely said that the plaintiff will get mesne profits in respect of the lands of Schedule Kha so long as they remain in possession of the defendants, but added that, the amount will be determined hereafter in accordance with law. Reading the judgment as a whole we must take the direction in the decree to amount to a direction in accordance with the provisions of clause (c) as set out above. It is proper, therefore, to hold that the plaintiff was entitled under this decree to mesne profits from the institution of the suit until the delivery of possession to the decree-holder or the relinquishment of possession by the judgment-debtor wish notice to the decree holder or the expiration of three years from the date of the decree whichever event first occurs. From this it by no means follows, however, that no enquiry can commence till the three years have expired or prior to that delivery of possession or relinquishment of possession has taken place. For that conclusion the learned Advocate relies on the provisions of sub-rule (2) of Order 20, rule 12 which are in these words:

“Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.”

4. If an enquiry takes place as regards mesne profits for a period commencing from the institution of the suit till a date which is previous to the expiration of three years from the date of the decree or to the earlier delivery of possession or the relinquishment of possession by the judgment-debtor the consequence according to Mr. Guha would be that the plaintiff would have to be content with a decree for only part of the period to which the decree entitles him and he will have to give up part of his rights under the decree. The reasonable conclusion he suggests is that it is only when one of the three events indicated in clause (c) has occurred, namely, either three years have expired from the date of the decree or prior to that delivery of possession or relinquishment of possession by the judgment-debtor has taken place that the right to apply for enquiry accrues

5. If the inevitable position in law had been that once an enquiry is made and on the basis of the results of the enquiry a decree is made as regards part of the period for which the plaintiff was entitled to mesne profits, no other application can be made and no further decree can be made, there would have in my opinion been some force in the contention raised by the learned Advocate. In my opinion, it is by no means clear that this is so. I can see no reason why because in terms of a preliminary decree which has already been made for mesne profits in favour of the plaintiff from the institution of the suit for the period 1o which he is legally entitled one decree is made for part of the period, a further decree cannot be made for the remaining part of the period. There is nothing in Order 20, rule 12 or any principle of law to prevent a fresh application being made and a fresh decree being made for such relief in terms of the decree already obtained. The mere fact that sub-rule (2) speaks of a final decree to be passed in accordance with the results of such enquiry does not in my opinion produce the consequence that no other decree can be made previous to that final decree. It is in my opinion eminently just and convenient that a successful plaintiff should be allowed to get part of the mesne profits as early as possible. Many years may have passed from the institution of the suit till the date of the decree and I can see no justification in rules of justice, equity and good conscience that should compel him to wait for three years from the date of the decree or the delivery of possession or the relinquishment of possession which in many cases may not take place within these three years. Nor can I see any reason in the rules of justice, equity and good conscience which would stand in the way of a successful plaintiff getting after he has obtained his relief in respect of the part of the decree, further relief in respect of the remaining part. If it is thought that under the definition clause a final decree is one which completely disposes of the suit and so after a final decree has been passed no further proceeding can be taken in the suit, it may not be correct perhaps to treat a decree made for part of the period as a final decree in that strict sense and only the decree which completes the relief by granting mesne profits for the further period also might strictly be the final decree. I find it impossible to agree, however, that because there can be one final decree only in that strict sense, there cannot be a decree assessing mesne profits on an enquiry under the terms of Order 20, rule 12 for an intermediate period at first.

6. I have, therefore, come to the conclusion that it is open to the plaintiff to make an application for enquiry under Order 20, rule 12 as soon as the decree has been made. The contention raised on behalf of the respondents that the application was premature must therefore be rejected.

7. Our attention was drawn to a decision of the Patna High Court in Harakhpan Missir v. Jagdeo Missir* (1) I.L.R 4 Patna 57, where in considering a question of limitation the view was taken that where a decree awards future mesne profits the right to apply for ascertainment of the amount of the mesne profits does not accrue until the period for which the mesne profits have been awarded has expired. But for the reasons given above, I am unable to accept this decision as correct.

8. It appears to me, however, that the learned trial court was not right in making his own conclusion as regards the mesne profits for the years 1358 on a proportionate basis. It may very well be that the mesne profits for the year 1358 would be more than in previous years or less and as the Commissioner made no report in respect of the year 1358 the conclusion by the learned Judge on a pro rata basis must be held to be illegal surmise rather than legal inference. The present enquiry by the Commissioner having been confined to the period up to 1357, the decree must also be limited to the period Again, as the suit was instituted in Baisakh 1354 and the Court rejected the claim for compensation and gave a decree only for future mesne profits, the plaintiff is not entitled to any mesne profits for the year 1353. From the figure Rs. 2260-13-0 as calculated by the learned Subordinate Judge we have, therefore, to duduct in the first place the sum of Rs. 213-8-0 and Rs. 131-15-0 which he assessed for the year 1358 in respect of produce of crops and standing fruit-bearing trees and the sums assessed by the Commissioner in respect of the year 1353, that is, Rs. 73-2-0. We have also to deduct the sum of Rs. 250/- granted by the trial court in respect of fish taken from the tank, as the finding of the court of appeal that the ditch did not contain “such fish” being a finding of fact is binding on us. The plaintiff is, therefore, entitled to a sum of Rs. 1592.25 N.P This relief is given in respect of the period from the institution of the suit till the end of 1357. In respect of the further period he will have to take such steps as he may be advised.

9. I would, therefore, allow the appeal and in modification of the decree passed by the court below direct that a sum of Rs. 1592.25 N.P be awarded to the plaintiff on account of mesne profits up to the end of 1357

10. The appellant will get costs here and below.

Law, J.:— I agree.

S.K.B

Kanai Lal Maity v. Shyam Kishore Das

Structured Summary of the Opinion (Das Gupta, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondents' Arguments (as presented through Mr. Guha)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Kanai Lal Maity v. Shyam Kishore Das

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