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Case Number

Privy Council Appeal No. 156 of 1927

Attorney(S)

Vallance and Vallance
Watkins and Hunter
T.L. Wilson and Co.
B. Dube
Upjohn
E.B. Raikes
G.R. Lowndes

Judges

Sir Charles Sargant
Carson
Justice Viscount Dunedin

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Smart Summary

Concise Analytical Summary of the Opinion (Viscount Dunedin)

Factual and Procedural Background

Three zemindar families — referred to as the Kundu set, the Mukherjee set and the Roy set — were in joint legal possession of certain mouzahs (Durlabhpur in Jirat and Hatikanda). These lands were submerged by the Ganges, disappeared for many years, and later re‑appeared adjacent to land held by the Government. The Government treated the re‑emerged land as an accretion and put tenants upon it.

The zemindar families applied to the Collector's Court to assert their rights. The Roy applicants did not persevere, but the Kundu applicants obtained an order of release from the Collector that the lands shown in specified exhibits be released, placing the Kundu family into possession. Although the Kundu family obtained possession, legally they were entitled only to a six‑annas share (the other ten annas belonging to the other two families).

While the Government had been in possession a tenant named Srish had been let into possession and had been paying putni to Government. When the Kundus gained possession they continued Srish in occupation. Subsequently the other two families (the plaintiffs) sued for recovery of possession, a declaration of title and mesne profits. The suit was brought against all parties found in possession (including the Kundus, the Government, the Government's associate in partial possession, and Srish). The trial court gave judgment for the plaintiffs; an appellate court reversed; the Privy Council restored the trial court's decree in favour of the plaintiffs, ordering the claim be decreed with costs and mesne profits and that the amount of mesne profits be ascertained in execution.

The present controversy concerns the execution stage — specifically, two questions that arose when the mesne profits had to be quantified: (1) the period for which mesne profits should be allowed (terminus a quo and terminus ad quem), and (2) the basis on which mesne profits are to be computed (what measure of profit is to be used and how liability is to be distributed among multiple defendants).

Legal Issues Presented

For what period are mesne profits to be allowed in this case — i.e., what are the proper terminus a quo and terminus ad quem for mesne profits in respect of the plaintiffs' recovery of possession?
On what basis are mesne profits to be computed and allocated among multiple defendants — specifically, whether mesne profits should be assessed on (a) what the defendants in wrongful possession actually received (net after expenses), (b) what the plaintiffs might with reasonable diligence have received (e.g., a rental basis because zemindars would have let out rather than cultivate), or (c) whether, under a joint and several decree, one defendant may be held liable for the receipts of another (for example, the receipts of Srish as tenant).

Arguments of the Parties

Appellants / Kundu Defendants (as articulated in the opinion)

The Kundu defendants contended they are liable only for the mesne profits they actually received. In practical terms, that meant they should be assessed only on the rent that they themselves obtained (principally rent paid by Srish) and not on theoretical profits or on what another person in possession might have obtained.
They argued that continuing Srish in occupation (as he had been when Government held the land) was reasonable and that they were not obliged to eject him and cultivate themselves — therefore liability should be limited to their actual receipts.
They suggested that the decree being for joint and several liability should not permit holding one defendant liable for another defendant's receipts; the Kundu defendants should not be made to pay mesne profits based on what Srish or others received.

Plaintiffs / Other Families and Respondents (as articulated in the opinion)

The plaintiffs relied on the Court's power under Section 211, Civil Procedure Code, which permits a court in a suit for recovery of possession to provide mesne profits from the institution of the suit until delivery of possession to the party in whose favour the decree is made (or until three years from the date of decree), and thus argued mesne profits should run to the later period contemplated by that provision.
One line of argument advanced on behalf of the respondents was that plaintiffs (being zemindars or putnidars) would not themselves have cultivated but would have let the land for rent; therefore mesne profits should be assessed on a rental basis — i.e., what the plaintiffs, exercising reasonable diligence, could have obtained by letting the land.
The respondents also relied on a contention (accepted by the High Court for consideration) that each judgment‑debtor should be liable only for the portion of mesne profits he actually received or with reasonable diligence might have received during his period of wrongful possession (i.e., the person in actual possession is liable for his net profit after working expenses).

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court addressed the two contested issues in sequence.

First issue — Period for which mesne profits are allowed:

The court observed that the relevant statutory provision is Section 211 of the Civil Procedure Code, which authorises a decree in a suit for recovery of possession to provide for the payment of rent or mesne profits from the institution of the suit until delivery of possession to the party in whose favour the decree is made or until the expiration of three years from the date of the decree (whichever event first happens). The court treated a decree phrased "with costs and mesne profits" as an exercise of that statutory power under S. 211. Their Lordships further stated that authority has decided that such a decree is to be understood as awarding profits up to the time of the plaintiffs' re‑admission to the land. On that basis the court concluded on the first point (the question about the applicable period) in accordance with the statutory framework and the cited authorities applying S. 211.

Second issue — Basis for computing mesne profits and allocation among defendants:

The court analysed competing approaches to measuring mesne profits. Section 211's statutory explanation of "mesne profits" was quoted: mesne profits "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." The court rejected the plaintiffs' rental‑basis argument as the primary criterion — i.e., the suggestion that because plaintiffs were zemindars they would have let the land (so mesne profits should be measured by a rental amount) was treated as an argument not deserving of much weight.

The court then turned to the argument that each judgment‑debtor is liable only for what he actually received or with reasonable diligence might have received during his wrongful possession; specifically the Kundu defendants argued that their liability should be limited to what they themselves received (e.g., rent from Srish) and that they should not be held liable for what another occupant (Srish) received simply because the decree was drawn as joint and several.

The court found it unjustifiable to construe the decree as permitting one defendant to be made liable for the receipts of another merely because the decree was framed as joint and several. The court considered whether Srish could be treated as a trespasser and whether the Kundus could be treated as trespassers; notwithstanding some sense in which the Kundus were in wrongful possession (they took the whole profits while legally entitled only to six annas), the court could not accept the view that Srish (a tenant who had been let into occupation when Government held the land) was simply a trespasser whose receipts could be treated as the metric for others' liability.

Applying the statutory definition, the court concluded that, as to the Kundu defendants, mesne profits must be calculated on the basis of what those defendants themselves actually received (or what they might with ordinary diligence have received), and not on the basis of what other persons in occupation received. The court thus overturned the High Court's approach on this second point insofar as it would have permitted assessing one defendant's liability by reference to another's receipts.

Holding and Implications

Holding: Their Lordships gave a divided result on the two issues:

The court upheld the statutory framework under Section 211 for the period of mesne profits (treating a decree "with mesne profits" as covering the period up to re‑admission/delivery of possession or otherwise in accordance with S. 211). On that first point the appellants did not prevail.
On the second point the court held in favour of the Kundu defendants: the mesne profits to be allowed are to be calculated only on what the respective defendants actually themselves received as rent from the land let (or what they might have received with ordinary diligence), and one defendant cannot be held liable for the profits actually received by another merely because the decree is joint and several. Thus, on the measurement/allocation issue the appeal succeeded.

Direct consequences and procedural outcome:

The court ordered that mesne profits be allowed up to the date of the plaintiffs' re‑admission to the land, but calculated only on the actual rent the defendants themselves received from the land let.
There were to be no costs before the Board or in the Courts below, as the decision was a divided success; any costs already paid were to be repaid.

Broader implications: The opinion applies Section 211's statutory definition and framework for mesne profits and emphasises that liability is to be measured by what a particular defendant actually received (or might have received with ordinary diligence) rather than by what another defendant or occupier received. The court declined to construe a joint and several decree so as to make one defendant answerable for another's receipts in circumstances like those of this case. The opinion does not purport to establish any new principle beyond the application of the statutory definition and these interpretive conclusions.

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Gurudas Kundu Choudhury And Others v. Kumar Hemendra Kumar Roy And Others

Viscount Dunedin -

This is a case which has arisen out of one of chose curious effects of nature which have often been before the Board, namely, the behaviour of the Ganges. There were three families who, for brevity's sake, have been named the Kundu set, the Mukherjee set and the Roy set. They were three families of zemindars who were in joint possession of certain mouzahs called Durlabhpur in Jirat and Hatikanda. They were in joint possession in law. It was quite true that they had a separate towzi number, but that makes no difference to the legal character of the possession. These properties disappeared under the Ganges. After a considerable period of years they re-appeared and when they re-appeared they were in juxtaposition to some property held by the Government. The Government assumed that the land which had come out of the Ganges was an accretion to their property ; and proceeded to put tenants upon it, but after a certain time the zemindars woke up to the fact that it might be their property that had re-appeared from under the Ganges, and, accordingly, they took the ordinary steps, namely, an application to the Court of the Collector. Originally the two sets, the Roy set and the Kundu set, made applications, but the Roy set did not persevere, and there is a copy of the order sheet in the Court of the Collector in which, dealing with the Roy application, it says :

"The notice-giver took no steps to establish their right to the lands claimed by them as a reformation in suit. On the other hand the Kundu Babus of Mouri have succeeded in establishing that Government has no right to the mouzas of Jirat and Durlabhpur."

Accordingly, there is on the other order sheet a certified copy of order of release in which the Collector says :

"I accordingly order that the lands included within the Revenue Survey boundaries of Char Jirat and Durlabhpur as shown in Exhibits A and A (2) be released."

That put the Kundu people in lawful possession of the whole of the lands. It is quite true that they, although in lawful possession of the whole of the lands, were not really in one sense in lawful possession because they had, as regards the other two families, only a right to a 6 annas share ; the other 10 annas share being in the right of the other two families.

"When the Government had been there they had thought that the best way to deal with the land was to let it in putni to a person of the name of Srish. Srish seems to have worked the land well and settled cultivators upon it, and he paid his putni to the Government. When the Kundu family got possession of the land under the lease they thought that the best plan that they could adopt was to continue Srish and continue Srish they did. After a little while the other two families woke up to the fact that as the lands had been recovered, and as they had a right to a 10 annas share of it, they had better make effectual their right, and accordingly they raised action for that purpose. That action was defended by the Kundus. The first Judge gave judgment in favour of the plaintiffs ; then there was an appeal in which that judgment was reversed and then there was an appeal to the Privy Council which restored the judgment of the first Judge. That suit was for the recovery of the land and mesne profits. The suit was brought against everybody who was found there : it was brought against the Kundus ; it was brought against the Government and a certain gentleman connected with the Government who had partial possession of land before the period at which the Kundus were re-admitted, and it was also brought against Srish, who was found to be the person in actual possession. The decree in that suit was as follows :

"It is ordered that the claim of this suit be decreed with costs and mesne profits and interest against the principal defendants and the defendants subsequently added...... The amount of means profits to be ascertained in execution."

The questions that are now before Lordships arose when the amount of mesne profits had to be ascertained in execution. Two questions arose in connexion with that. The first is as to the period for which the mesne profits should be allowed. The terminus a quo, so far as these particular'defendants are concerned (because it is only the Kundu defendants that are here), was, of course, where they were first re-admitted to possession, but the termines ad quem might either be the raising of the suit or the time when the plaintiffs got decreed to them the right to be on the lands. Upon that the High Court have held that mesne profits must go to the further period and this appeal is first against that.

Their Lordships think that this matter is really decided by authority

"that the claim of this suit be decreed with costs and mesne profits" has been decided to mean profits up to the time of the plaintiffs're-admission to the land. The argument on the other side was that when you looked at what was actually claimed in the plaint the plaint bad said :

"Suit for declaration of title to and for recovery of possession of immovable property and mesne profits, valued at Rs. 7,545,"

and then when you come to the statements, in para. 9, the value of the land "is put at Rs. 6,156, and then it goes on to say :

"The mesne profits amount to Rs. 1,389-5-8 as per-accounts given below."

Now, that Rs. 1,339-5-8 is only a calculation up to the time of the institution of the suit. Although that is so, inasmuch as the decree is "with costs and mesne profits," it has been held in many cases and cannot be gone back upon that, S. 211, Civil P. C., having said that

"When the suit is for the recovery of possession of immovable property yielding rent or other profit the Court may provide in the decree for the payment of rent or mesne profits in respect of such property from the institution of the suit until the delivery of possession to the party in whose favour the decree is made or until the expiration of three years from the date of the decree (whichever event first happens,)"

a decree in this form is an exercise by the Court of that power under S. 211. Their Lordships are, therefore, clearly of opinion that on this first point the appeal fails. Now, the second point is : On what basis the mesne profits are to be computed. The same S. 211 gives an explanation of what "mesne profits" are

"Mesne profits of property mean those profits which the parson in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits."

Undoubtedly in the lower Court the principal argument seems to have turned upon a contention which does not commend itself to their Lordships. It was argued seemingly that the true criterion was not what the person in possession got but what the person who was out of possession might have got if be had been there, and it was said that inasmuch as you were a zemindar you would not have cultivated yourself; you would have taken a rent; here is the rent which is given by Srish, and, therefore, that ought to be the proper criterion. That argument was quite rightly put aside. But then there is another argument. Mr. Upjohn wished their Lordships to think that this other argument which will be stated presently was never started until the parties got before this Board. Their Lordships do not think that can be said, because in the judgment of the High Court this was said :

"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 connexions : (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 zemindars 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."

That is the argument which has already been mentioned as not being worthy of very much attention. But then the learned Judge goes on :

"(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 parson in actual possession is liable only for the net profit which he received after deducting working expenses."

Now, the question which was directly raised by the appellants here is this : He says :

" I am only liable for what I really got, namely, what I got from Srish; allowing Srish to go on as he had done with the Government was perfectly reasonable; you cannot think that it was necessary for me to put out Srish and begin to cultivate myself, and therefore, I, in the terms of the Code, am only liable for what I really got."

Mr. Upjohn has argued the case with his usual ability and more than his usual ingenuity, and it comes to this : He begins with the decree land he says that was a decree for joint and several liability. Then he says :

Oh, these people really did not take this point sufficiently.

" Well, they may not have taken it sufficiently in the first Court because their Lordships think they rather wandered into the question which they have already dealt with, but their Lordships think it is perfectly clear from what has been read of the judgment that they took it in their second point referred to by the High Court."

Then the argument proceeds thus :

The judgment was against them, and it was against them upon this theory that these people were all trespassers; not only were the Kundu defendant trespassers but Srish was a trespasser. He was put in by the Kundus ; the Kundus had no real right, and therefore, he had not a right. Accordingly as the decree was for joint and several liability you may take the mesne profits upon the calculation of what Srish got out of the land, and get decree against all the others for that amount. Their Lordships have great difficulty in looking upon Srish as a trespasser, or, for that matter, in one sense, even the Kundus as trespassers, because they were in possession of the land and on the only legal title to it which existed, namely, the lease from the Government. It is quite true in one sense that they were in wrongful possession because they were taking the whole profits, whereas they were only entitled to six annas of the profits and not to 16 annas of the profits. Be that however as it may, their Lordships cannot accept this argument. They do not view the decree as a proper joint and several decree. The think it is to be construed applicant singula singulis. Let this test be taken: Suppose any one of the numerous defendants had refused to quit possession could all the other defendants have been put in prison because that one defendant was in contumacy to the decree ? What authority is there for saying that under such a decree as against any one particular defendant you are entitled to say : I will hold you liable not for the mesne profits which you got according to the terms of the Act, but for the mesne profits which somebody else got and with whom, under the decree, you are liable ? Their Lordships think it would be the height of injustice to hold that and they do not see that they are bound to hold it. Therefore, their Lordships think that the basis of the judgment of the High Court here fails and that dealing with these Kundu defendants, and with them alone, their liability is just exactly what it is said to be by S. 211, Civil P. C., viz., that which they themselves received no case having been made that they by ordinary diligence could have got any more.

The result is that upon this second point their Lordships are of opinion that the appeal succeeds.

Their Lordships will, therefore, humbly advise His Majesty to declare that the mesne profits to be allowed up to the date of the re-admission of the plaintiffs to the land, but are to be calculated only on what the defendants actually themselves received as rent from the land let. There will be no costs either before this Board or in any of the Courts below as this has been a divided success, and any costs paid must be repaid.

Order accordingly.

Gurudas Kundu Choudhury And Others v. Kumar Hemendra Kumar Roy And Others

Concise Analytical Summary of the Opinion (Viscount Dunedin)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants / Kundu Defendants (as articulated in the opinion)

Plaintiffs / Other Families and Respondents (as articulated in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Gurudas Kundu Choudhury And Others v. Kumar Hemendra Kumar Roy And Others

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