1. The onus of proving what profits might, with due diligence, have been received in any year lies upon the party claiming mesne profits, but the onus of proving what profits the person in wrongful possession actually received lies upon the person in possession. Vide Ramakka v. Nagesana (C.M.A. Nos. 411 and 401 of 1921). The best evidence of the profits derivable from the cultivation of a particular field in any given year is the evidence as to the actual yield in that year minus the cost of cultivation. But such evidence, in order to be useful, must be exact, and it is always open to the party out of possession to falsify the accounts as to the number of measures of grain gathered at the harvest or the price prevailing when they were sold or the cost of cultivation. He may also adduce evidence to prove that the occupant was not diligent and might have got greater profits by proper diligence. In the absence of evidence as to actual profits, the next best evidence is evidence as to possible profits, of which evidence as to yield of similar adjoining lands in the year in dispute is an example. In the present case the petitioners did not prove that any particular items of the defendants declared accounts of the yield of lands kept under direct cultivation were incorrect, but they relied on the circumstance that for nine seasons there had been a net loss upon these lands as itself so highly improbable as to warrant the rejection of all the defendants' accounts on the ground that no man in his senses would go on cultivating the same land year after year, at a loss, although every one is liable to losses in particular bad seasons. The yield of the suit lands in other years, which the Subordinate Judge has adopted as the yield for the years in dispute, is not such a good guide as evidence as to the yield of neighbouring lands of similar quality in these years would be, and is open to the objection that as regards the lands under lease, which are not kept separate, the leases are better evidence of the profits.

2. The plaintiffs failed to produce such evidence. The only course for the Court to adopt under these circumstances was to disallow mesne profits upon the lands under direct cultivation on account of the absence of any evidence as to what they might have yielded and the incredibility of the defendants' story that they did not actually yield any profit at all and to award mesne profits upon the leased lands only.

3. I, therefore, agree in the order proposed to be made in my learned brother's judgment.

Srinivasa Aiyangar, J.

4. The only question that arises in this appeal relates to the mode of ascertainment of mesne profits. The suit is one for partition instituted by the daughter now dead and represented by her legal representatives of a deceased Mahomedan against her brothers and others for her share in their father's estate and for mesne profits.

5. The proceedings from which this appeal has been preferred relate to the raesne profits of the agricultural lands from the date of the plaint. ACommissioner was appointed to take evidence and report on the amount of mesne profits and he, in his report, fixed the sum of Rs. 3,561-14-6 inclusive of interest as the amount of mesne profit payable by defendants 1 and 2 to the plaintiff's representatives. On objection taken to the Commissioner's report by both the parties, the matter came up before the Subordinate Judge of Tuticorin who awarded to the plaintiff's representatives the sum of Rs. 5,033-1-6 and interest thereon. Defendants 1 and 2, who have been found liable for this latter amount, have preferred this appeal.

6. At the enquiry before the Commissioner the plaintiff adduced no evidence whatever. The defendants, however, produced several account books and also examined a number of witnesses. The learned Subordinate Judge has rejected entirely the evidence of these account books on the ground that in his opinion they had been specially fabricated by the defendants with a view to defeat and defraud the plaintiffs. The two circumstances that he relies on for coming to that conclusion are: firstly, that the defendants, at any rate, after the institution of the suit, knew that they would some day be held accountable for mesne profits and that they had, therefore, a strong motive for fabricating false accounts; and secondly, that the accounts of the khas or direct cultivation of certain lands by the defendants shows that such direct cultivation has, strangely enough, in almost every season during the accounting period, resulted not in profit but considerable loss. This latter circumstance is undoubtedly calculated to raise a great deal of suspicion. But that alone even coupled as it may be with the existence of strong motive would not be sufficient to discredit the account books altogether. It must be observed that the plaintiffs have not challenged the accounts in any other manner or sought to show by an examination of the accounts of cross-examination of witnesses to bring out any aspects or characteristics of the account books on which it may be found that the account books are not genuine. The Subordinate Judge, after rejecting the account books entirely, practically brushed aside the whole of the Commissioner's report and proceeded to assess mesne profits himself not on the basis of any figures available for the period in question but on the basis of figures found for a previous period by a former Commissioner appointed in the suit.

7. A considerable portion of the lands were lands let out to tenants even during the accounting period; and the agreements executed by the tenants in respect of the lands so leased out have all been produced and filed. In fact, so far as the rents recovered from these lands are concerned, both parties were clearly agreed that the plaintiff's representatives would be entitled to their proper share in the rents so realised. There was, therefore, no reason whatever for the Subordinate Judge to reject altogether the available figures in respect of the lands leased out.

8. We are clearly of opinion that the plaintiff's, representatives would be entitled to their seventh share of the amounts found by the Commissioner as recovered from the tenants in respect of the lands leased out during the nine periods of cultivation in question. As this account has not been separately made up, the matter might have to be referred to the lower Court for the taking of such accounts if the parties here should be unable to agree in the same.

9. As regards, however, the lands which have been directly cultivated by the defendants during,the period the net result of the cultivation in nearly all the periods has been shown to be considerable loss. The question arises in this connection whether the claimant for mesne profits in such cases is entitled merely to a share of the actual profits received or recovered by the person in possession, and, if not, what the true measure of mesne profits should be. The point to start from is that mesne profits are in the nature of compensation or damages. Their Lordships of the Judicial Committee have observed in the case of Grish Chunder Lahiri v. Shoshi Shikhareswar Roy (1900) ILR 27 C 951 at 967 that mesne profits are in the nature of damages which the Court may mould according to the justice of the case. In the case of Midnapnr Zamindari Co. Ltd. v. Kumar Naresh Narain Roy (1924) 47 MLJ 23 (P.C.) their Lordships of the Judicial Committee refer to mesne profits as compensation to the plaintiff for the exclusive use of the land by the other party. The damages are for the wrongful withholding of possession or exclusion from possession of the party entitled thereto or found to be so.

10. The definition of mesne profits in the Civil Procedure Code, Section 2, Clause 12, itself contains a clear indication as to what the true measure of mesne profits is. It lays clown that "mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom; that is to say, if, in respect of any particular property, the Court should find that profits received or recovered by the party in possession do not amount to what with ordinary diligence he might have received from the property, then the true measure is what would have bean so received with due diligence, or, in other words, what the party in possession actually receives or recovers is the proper measure except in cases where it is or can be shown that what is so received or recovered falls below what would have been so recovered or received with due diligence.

11. As it is conceivable that in respect of certain lands the party in possession might have cultivated with the diligence and with regard to others without such diligence, the question can be decided only with regard to each item of property.

12. Applying these principles to the lands under the direct or khas cultivation of the defendants themselves, we find that in all the nine seasons to which the accounting relates, the defendants are said to have not only not recovered any profits but suffered considerable loss, the expenses being alleged to be far in excess of the yield. We cannot, therefore, treat this kind of dealing by the defendants with certain lands as dealing with due diligence. The very facts clearly show that these lands have not been managed by the defendants with that amount of due diligence, which is indicated in the definition of mesne profits. It is clear that if the lands had been let out, they might have fetched, if not large rents as in the other cases, at least some low rent.

13. We are, therefore, left to find out the mesne profits in respect of all the lands under the khas or direct cultivation of the defendants by determining what rent or income they would or could have fetched in those seasons if they had been let out by the defendants to strangers. It was incumbent on the plaintiffs to adduce some affirmative evidence with regard to the amounts for which these lands might have been reasonably let in the particular seasons or years by the defendants. See judgment in Ramakka v. Nagesana AAO Nos. 411 and 401 of 1921 in this Court not yet reported. No such evidence whatever has been adduced. There is some evidence to the effect that all the lands that could be let were leased out by the defendants and that only the other lands were cultivated by them directly. There is, therefore, no material whatever from which the amount of mesne profits in respect of these lands could- be ascertained. There is also no principle or warrant for burdening the plaintiff's representatives who Were admittedly out of possession with any losses alleged to have been sustained by the defendants in the course of their khas or direct cultivation of lands which must have been carried on without due diligence.

14. The best course, therefore, in these circumstances would be to strike out from the account of mesne profits all the figures relating to the khas or direct cultivation of some of the lands by the defendants themselves and take only the lands leased out to tenants to ascertain the share to which the plaintiff's representatives would be entitled to therein. It seems to us that these figures could be easily worked out and agreed to by and between the parties themselves in this Court and in order to see whether they are in a position to do so, this case will be posted again for orders after the lapse of 10 days. If the parties, however, are unable to agree, the case will have to be sent back to the Lower Court for the figures being worked out on that basis.

15. As both parties have partially succeeded and partially failed, there will be no order as to the costs of this appeal and each party will pay and bear his or their own costs in this Court.