The Plaintiff-Respondent purchased an entire estate consisting of 42 villages at a sale held under sec. 14 of Act XI of 1859 for arrears of Government revenue, on the 27th March, 1902. The sale was confirmed on appeal by the Commissioner on the 1st September, 1902, and the purchase took effect from the 13th January, 1902, i.e, the day after the last day of payment of revenue for the January kist of 1902. The Plaintiff appears to have obtained formal delivery of possession of the estate from the Collectorate in September 1902. Shortly after that, the ex-proprietors and some of the mokararidars of the estate brought several suits for setting aside the sale in the Civil Court, and the sale was set aside by the Subordinate Judge on the 18th September, 1903. On appeal to the High Court, however, the decree of the Subordinate Judge was reversed and the sale was upheld on the 13th February, 1907. The Plaintiff then issued notices on the 26th July, 1907 for avoiding the under-tenures within one month, and then instituted the present suit on the 19th September, 1907 for declaration that the under-tenure of the Defendants was void, for possession of the same and for mesne profits. The suit was contested on various grounds by the Defendants, but they were overruled and a preliminary decree was passed on the 20th July, 1908 ordering possession to be given to the Plaintiff and directing assessment of mesne profits.

The Plaintiff obtained possession of Monohar Chak on the 5th October, 1908 and on the 3rd May, 1909 applied for assessment of mesne profits. A Commissioner was appointed for the purpose, and he submitted his report on the 8th September, 1909. Objections were taken by the Defendants, but they were overruled by the lower Court and that Court upheld the Commissioner's report, and passed a decree on the 16th April, 1910 directing the Defendants 12 to 14 to pay Rs. 1,051-1-3 and the Defendants 15 and 16 to pay Rs. 2,102-2-6 as mesne profits to the Plaintiff.

The Defendants 12 to 16 were the mokararidars of Monohar Chak, one of the villages comprised in the estate and they are the only Defendants who have appealed to this Court, and three contentions have been raised on their behalf. The first is that the Plaintiff was not entitled to mesne profits from the 13th January, 1902, i.e, from the date from which his purchase took effect, but only from the 26th August, 1907, the date on which the term of the notice for avoiding the mokarari expired; secondly, that according to the provisions of Article 109 of the Limitation Act, the Plaintiff was not entitled to mesne profits for any period beyond 3 years prior to the institution of the suit; and, thirdly, that the amount of mesne profits had been wrongly assessed.

As regards the first convention, there is no doubt that the Plaintiff's purchase took effect from the 13th January, 1902, and as purchaser of an entire estate she purchased it free from all incumbrances, and was entitled to avoid and annul all under-tenures with certain exceptions as laid down by sec. 37 of Act XI of 1859.

But the sale does not ipso facto avoid the incumbrances and under-tenures, but only renders them voidable at the option of the purchaser. See Titu Bibi v. Mohesh Chunder Bagchi(1), Mafizuddin v. Korbad Ali(2), and Mir Wazirddin v. Lala Deokinandan, Ramratan Kapali v. Aswini Kumar Dutt(4). It is not necessary for the purpose of avoiding an under-tenure that the purchaser should give notice before bringing his suit and the option may be exercised by the institution of a suit within the time allowed by law. It was held in the case of Ramratan Kapali that where such a suit has been instituted, the tenure must be regarded as annulled from the date of the commencement of the suit, and that for the period antecedent to such a suit the possession of the under-tenure-holder is not wrongful and a purchaser at a revenue sale is not entitled to claim by way of damages for use and occupation any sum in excess of what actually represents the rent payable by the tenure-holder of the first degree. We agree with the view taken in the above case, and as a notice was served in the present case for avoiding the mokarari, the period whereof expired on the 26th August, 1907, we are of opinion that the Plaintiff is entitled to mesne profits only from that date. The possession of the Defendants not being wrongful before that date, the Plaintiff cannot recover mesne profits for the said period. It has been contended on behalf of the Respondent, that under sec. 29 of Act XI of 1859, the Collector has the power to order delivery of possession of the estate to be made by removing any person who may refuse to vacate the same and by proclamation to the occupants of the property by beat of drum, or in such other mode as may be customary, and that the delivery of possession to her under sec. 29 of the Act amounted to avoidance of the Defendants' mokarari, and that at any rate, the possession of the Defendants became wrongful from the date on which the Plaintiff obtained delivery of formal possession through the Collector. But the Collector under sec. 29 has the power to remove any person who may refuse to vacate, whether the purchase is of an estate or a share of an estate. Now in the case of a share of an estate, the purchaser under sec. 54 of the Act acquires the share subject to all incumbrances and does not acquire any right which were not possessed by the previous owners, and in such a case no question of removal of under-tenure-holders or incumbrancers can arise. The words ‘Any person,’ therefore, who may refuse to vacate, and who may be removed by the Collector, seem to us to refer to the former proprietors or persons claiming proprietary right through them, and does not refer to under-tenure-holders. Difficult questions may, and often do arise, whether a particular tenure or land comes within the exceptions to sec. 37 of the Act. There is no procedure prescribed in Act XI of 1859 for the Collector's trying such questions, and there is no provision even for a summary trial of questions, which may arise, involving civil rights. There may be numerous tenures and raiyati holdings in an estate, and if the purchaser asserts that they do not come within the exceptions to sec. 37 of the Act, the Collector must either turn out all the tenants in the estate or summarily try their rights, if the contention of the Respondent is well-founded. There is no authority for such a contention and there is nothing in the Act in support of it. The purchaser must bring a suit to remove a tenure-holder if he refuses to vacate, and Article 121 of the Limitation Act prescribes a period of 12 years for a suit to avoid incumbrances or under-tenures in an entire estate sold for arrears of Government revenue.

In the case of Mir Waziruddin v. Lala Deokinandan, the question was whether formal possession obtained from the Collector by a purchaser at a revenue sale is operative against the under-tenure-holder so as to save limitation in a suit for annulment of an under-tenure and recovery of possession, and the question was answered in the negative. Reliance has been placed however on certain observations made by the learned Judges in that case, viz., that it might be conceded that the principle upon which symbolical possession is considered as effective against a party to the proceedings is applicable, when possession has been delivered strictly in accordance with sec. 29 of Act XI of 1859 to a purchaser at a sale for arrears of revenue, and that the election to annul under-tenures may be indicated by actual ejectment by the Collector under sec. 29. But it appears to have been conceded only for the sake of argument, and was at most an obiter, as possession had not been delivered by removing the undertenants, and formal possession only was delivered to the purchaser.

The purchaser may elect to annul an under-tenure not only by institution of a suit, or by giving a notice to vacate but may indicate it by other means. And even assuming that the Collector has any power to remove under-tenure-holders, there is nothing to show that the purchaser in the present case indicated her election to avoid the mokarari by applying to the Collector to do so. In the present case possession was not delivered by removing any person. The Plaintiff admits in her plaint that only symbolical possession of the mahal was delivered to her in October 1902.

The notice issued by her on the 26th July, 1907 recites that she had purchased the estate free from incumbrances and had obtained possession through the Collectorate and then states “And whereas I hereby avoid and annul all undertenures and all other incumbrances in the said mahal and in particular the said alleged mokarari tenure of the 3rd November, 1838. Now therefore I call upon you to deliver up to me possession of all the lands in the said mahal in which you have been in possession within one month from this date, and I hereby declare that in default of your doing so I shall proceed to eject you therefrom by due process of law.”

It was by this notice therefore that Plaintiff indicated her option to avoid the mokarari and called upon the Defendants to give up possession within one month, and there is nothing to show that she expressed her intention to annul the mokarari before the notice was issued. Besides it appears that, notwithstanding the sale of the mahal, the Defendants 12 to 16 went on paying Government revenue and ceases into the Collectorate in respect of Monohar Chak until 1908 when Plain if obtained possession through the Civil Court, and it is not suggested that the Plaintiff paid the said amount of revenue.

Under the circumstances the possession of the Defendants prior to the expiry of the term of the notice, was not wrongful, and the Plaintiff is not entitled to mesne profits for any period prior to that date, but is entitled only to damages for use and occupation on the basis of the mokarari rent which was payable in respect of Monohar Chak.

In this view the second point raised on behalf of the Appellant, viz., whether the Plaintiff is entitled to any mesne profits for any period beyond 3 years of the institution of the suit, having regard to the provisions of Article 109 of the Limitation Act, does not arise.

We accordingly hold that the Plaintiff is entitled to recover mesne profits from the 26th August, 1907 to the 5th October, 1908 when she obtained actual possession from the Civil Court.

The last point relates to the assessment of mesne profits. It is contended on behalf of the Appellants that there has been no proper trial of the objections to the Commissioner's report by the Court below. The Court below simply said that it saw no ground to differ from the conclusions arrived at by the Commissioner. The first objection raised is that the Commissioner ought to have measured the lands and ought not to have taken 90 bighas to be the area of the lands in respect of which the mesne profits were to be assessed. It appears however that the Defendants themselves stated the area to be 58 acres which the Commissioner finds to be equivalent to 90 or 91 bighas, and although subsequent to the examination of Plaintiff's witnesses before the Commissioner they put in a petition before the Court stating that the area was 58 bighas and not acres, the petition was not sent to the Commissioner. Having regard to the facts that the area was originally admitted to be 90 bighas and the objection as to the area was not taken until at a late stage, which if taken earlier might have been at once settled by measuring the lands, we are not disposed to allow the question of area to be reopened at this stage, which would necessitate a fresh commission for measuring the lands. The next objection is that no mesne profits ought to have been allowed on the 15 bighas of patti lands but the Commissioner has found that they were culturable lands which yielded paddy and other crops and had been left uncultivated for 2 or 3 years. It was contended that in assessing mesne profits, the Court should take into consideration what the Defendant made, not what the Plaintiff lost, and reliance was placed upon the decision of this Court in Miscellaneous Appeal No. 267 of 1910. That case however does not help the Appellant. In that case the Plaintiff before dispossession had settled the lands at a rental of Rs. 40 per year and the lower Appellate Court assessed mesne profits on that basis although the Munsif found that the land yielded profits to the amount of Rs. 766 during the period of dispossession. This Court was of opinion that the lower Appellate Court had proceeded upon a wrong basis and observed as follows:

“The Appellate Court considered not what the Defendant may be taken to have made, but what the Plaintiff lost. This is not the correct basis, as is shown by the definition of mesne profits in sec. 2, sub-sec. 12 of the Code of Civil Procedure. The duty of the Court in estimating mesne profits is there so clearly indicated that we need not amplify the matter …… It was therefore the duty of the Appellate Court to … assess mesne profits as described in the Code and we remit the case to the lower Appellate Court in order that mesne profits may be ascertained accordingly.”

Now, sec. 2, sub-sec. 12 of the Civil Procedure Code says that mesne profits means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received. That decision therefore goes against the Appellant's contention. The third objection is as to the bhaoli rent, but the average produce has been found on the evidence and the rent has been assessed at half the produce. The fourth objection relates to the charges on account of well and earthwork but the Commissioner has found that they do not exceed very much the allowance of 10 per cent allowed on the head of collection charges. We are not disposed to interfere with the assessment made by the Commissioner. There is no reason, however, why the Defendants should not be allowed a deduction of the amounts paid by them on account of Government revenue and cesses, the chalans of which were filed in the case.

The parties have agreed that the Plaintiff will get damages to the extent of Rs. 75, for the period prior to the 26th August, 1907, and Rs. 325 as mesne profit from the 26th August, 1907 to 5th October, 1908, total Rs. 400.

There will accordingly be a decree for Rs. 400 in favour of the Plaintiff. The Defendants 12 to 14 will be liable to the extent of ⅓rd, and the Defendants 15 and 16 to the extent of ⅔rd.

The Defendants 12 to 16 will get half their costs in both Courts after the preliminary decree, the Plaintiff hearing his own costs after the preliminary decree, and if the Plaintiff has withdrawn any money deposited by the Defendants 14 to 16 the latter will be entitled to restitution of the said amount within a month of the arrival of the record in the lower Appellate Court. No interest will be charged on the Rs. 400 to be paid by the Defendants 12 to 16 to the Plaintiff, nor upon the amount deposited by the Defendants 12 to 16 if the Plaintiff pays back the money within a month of the arrival of the records in the lower Appellate Court after which period interest will run.

Decree modified.