1. The Plaintiff-Respondent purchased an entire estateconsisting of 42 villages at a sale held under sec. 14 of Act XI of 1859 forarrears of Government revenue, on the 27th March 1902. The sale was confirmedon appeal by the Commissioner on the 1st September 1902, and the purchase tookeffect from the 13th January 1902, i.e., the day after the last day of paymentof revenue for the January kist of 1902. The Plaintiff appears to have obtainedformal delivery of possession of the estate from the Collectorate in September1902. Shortly after that, the ex-proprietors and some of the mokararidars ofthe 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 wasreversed and the sale was upheld on the 13th February 1907. The Plaintiff thenissued notices on the 26th July 1907 for avoiding the under-tenures within onemonth, and then instituted the present suit on the 19th September 1907 fordeclaration that the under-tenure of the Defendants was void, for possession ofthe same and for mesne profits. The suit was contested on various grounds bythe Defendant, but they were overruled and a preliminary decree was passed onthe 20th July 1908 ordering possession to be given to the Plaintiff anddirecting assessment of mesne profits. The Plaintiff obtained possession ofMonohar Chak on the 5th October 1908 and on the 3rd May 1909 applied forassessment of mesne profits. A Commissioner was appointed for the purpose, andhe submitted his report on the 8th September 1909. Objections were taken by theDefendants, but they were overruled by the lower Court and that Court upheldthe Commissioners report, and passed a decree on the 16th April 1910 directingthe Defendants 12 to 14 to pay Rs. 1,051-1-3 and the Defendants 15 and 16 topay Rs. 2,102-2-6 as mesne profits to the Plaintiff.

2. The Defendants 12 to 16 were the mokararidars of MonoharChak, one of the villages comprised in the estate and they are the onlyDefendants who have appealed to this Court, and three contentions have beenraised on their behalf. The first is that the Plaintiff was not entitled tomesne profits from the 13th January 1902, i.e., from the date from which hispurchase took effect, but only from the 26th August 1907, the date on which theterra of the notice for avoiding the mokarari expired; secondly, that accordingto the provisions of Art. 109 of the Limitation Act, the Plaintiff was not entitledto mesne profits for any period beyond 3 years prior to the institution of thesuit; and, thirdly, that the amount of mesne profits had been wrongly assessed.

3. As regards the first contention, there is no doubt thatthe Plaintiffs purchase took effect from the 13th January 1902, and aspurchaser of an entire estate she purchased it free from all incumbrances, andwas entitled to avoid and annul all under-tenures with certain exceptions aslaid down by sec. 37 of Act XI of 1859.

4. But the sale does not ipso facto avoid the incumbrancesand under-tenures, but only renders them voidable at the option of thepurchaser. See Titu Bibi v. Mahesh Chunder Bagchi I. L. R. 9 Cal 683(1883).Mafizuddin v. Kotbad Ali I. L. R. 31 Cal. 393 (396) (1903). and Mir Wazirddinv. Lala Deokinandan 6 C. L. J. 472 (484) (1907). Ramratan Kapali v. AswiniKumar Dutt I. L. R. 37 Cal. 559 (1910) It is not necessary for the purpose ofavoiding an under-tenure that the purchaser should give notice before bringinghis suit and the option may be exercised by the institution of a suit withinthe time allowed by law. It was held in the case of Ramtatan Kapali I. L. R. 37Cal 559 (1910) that where such a suit has been instituted, the tenure must beregarded as annulled from the date of the commencement of the suit, and thatfor the period antecedent to such a suit the possession of theunder-tenure-holder is not wrongful and a purchaser at a revenue sale is notentitled to claim by way of damages for use and occupation any sum in excess ofwhat actually represents the rent payable by the tenure-holder of the firstdegree. We agree with the view taken in the above case, and as a notice wasserved in the present case for avoiding the mokarari, the period whereofexpired on the 26th August 1907, we are of opinion that the Plaintiff isentitled to mesne profits only from that date. The possession of the Defendantsnot being wrongful before that date the Plaintiff cannot recover mesne profitsfor the said period. It has been contended on behalf of the Respondent, thatunder sec. 29 of Act XI of 1859, the Collector has the power to order deliveryof possession of the estate to be made by removing any person who may refuse tovacate the same and by proclamation to the occupants of the property by beat ofdrum, or in such other mode as may be customary, and that the delivery ofpossession to her under sec. 29 of the Act amounted to avoidance of theDefendants mokarari, and that at any rate, the possession of the Defendantsbecame wrongful from the date on which the Plaintiff obtained delivery offormal possession through the Collector. But the Collector under sec. 29 hasthe power to remove any person who may refuse to vacate, whether the purchaseis of an estate or a share of an estate. Now in the case of a share of anestate, the purchaser under sec. 54 of the Act acquires the share subject toall incumbrances and does not acquire any right which were not possessed by theprevious owners, and in such a case no question of removal of under-tenure-holdersor incumbrancers can arise. The words Any person, therefore, who may refuse tovacate, and who may be removed by the Collector, seem to us to refer to theformer proprietors or persons claiming proprietary right through them, and doesnot 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 ofthe Act. There is no procedure prescribed in Act XI of 1859 for the Collectorstrying such questions, and there is no provision even for a summary trial ofquestions, which may arise, involving civil rights. There may be numeroustenures and raiyati holdings in an estate, and if the purchaser asserts thatthey do not come within the exceptions to sec. 37 of the Act, the Collectormust either turn out all the tenants in the estate or summarily try theirrights, if the contention of the Respondent is well-founded. There is noauthority for such a contention and there is nothing in the Act in support ofit. The purchaser must bring a suit to remove a tenure-holder if he refuses tovacate, and Art. 121 of the Limitation Act prescribes a period of 12 years fora suit to avoid incumbrances or under-tenures in an entire estate sold forarrears of Government revenue.

5. In the case of Mir Waziruddin v. Lala Deokinandan 6 C. L.J. 472 (1907) the question was whether formal possession obtained from theCollector by a purchaser at a revenue sale is operative against theunder-tenure holder so as to save limitation in a suit for annulment of anunder-tenure and recovery of possession, and the question was answered in thenegative. Reliance has been placed however on certain observations made by thelearned Judges in that case, viz., that it might be conceded that the principleupon which symbolical possession is considered as effective against a party tothe proceedings is applicable, when possession has been delivered strictly inaccordance with sec. 29 of Act XI of 1859 to a purchaser at a sale for arrearsof revenue, and that the election to annul under-tenures may be indicated byactual ejectment by the Collector under sec. 29. But it appears to have beenconceded only for the sake of argument, and was at most an obiter, aspossession had not been delivered by removing the under tenants, and formalpossession only was delivered to the purchaser.

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

7. The notice issued by her on the 26th July 1907 recitesthat she had purchased the estate free from incumbrances and had obtainedpossession through the Collectorate and then states "And whereas I herebyavoid and annul all under-tenures and all other incumbrances in the said mahaland 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 landsin the said mahal in which you have been in possession within one month fromthis date, and I hereby declare that in default of your doing so I shallproceed to eject you there from by due process of law."

8. It was by this notice therefore that Plaintiff indicatedher option to avoid the mokarari and called upon the Defendants to give uppossession within one month, and there is nothing to show that she expressedher intention to annul the mokarari before the notice was issued. Besides itappears that, notwithstanding the sale of the mahal, the Defendants 12 to 16went on paying Government revenue and cesses into the Collectorate in respectof Monohar Chak until 1908 when Plaintiff obtained possession through the CivilCourt, and it is not suggested that the Plaintiff paid the said amount ofrevenue.

9. Under the circumstances the possession of the Defendantsprior to the expiry of the term of the notice, was not wrongful, and thePlaintiff 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 themokarari rent which was payable in respect of Monohar Chak.

10. In this view the second point raised on behalf of theAppellant, viz., whether the Plaintiff is en titled to any mesne profits forany period beyond 3 years of the institution of the suit, having regard to theprovisions of Art. 109 of the Limitation Act, does not arise.

11. We accordingly hold that the Plaintiff is entitled torecover mesne profits from the 26th August 1907 to the 5th October 1908 whenshe obtained actual possession from the Civil Court.

12. The last point relates to the assessment of mesneprofits. It is contended on behalf of the Appellants that there has been noproper trial of the objections to the Commissioners report by the Court below.The Court below simply said that it saw no ground to differ from theconclusions arrived at by the Commissioner. The first objection raised is thatthe Commissioner ought to have measured the lands and ought not to have taken90 bighas to be the area of the lands in respect of which the mesne profitswere to be assessed. It appears however that the Defendants themselves statedthe area to be 58 acres which the Commissioner finds to be equivalent to 90 or91 bighas, and although subsequent to the examination of Plaintiffs witnessesbefore the Commissioner they put in a petition before the Court stating thatthe area was 58 bighas and not acres, the petition was not sent to theCommissioner. Having regard to the facts that the area was originally admittedto be 90 bighas and the objection as to the area was not taken until at a latestage, which if taken earlier might have been at once settled by measuring thelands, we are not disposed to allow the question of area to be reopened at thisstage, which would necessitate a fresh commission for measuring the lands. Thenext objection is that no mesne profits ought to have been allowed on the 15bighas of parti lands but the Commissioner has found that they were culturablelands which yielded paddy and other crops and had been left uncultivated for 2or 3 years. It was contended that in assessing mesne profits, the Court shouldtake into consideration what the Defendant made, not what the Plaintiff lost,and reliance was placed upon the decision of this Court in Miscellaneous AppealNo. 267 of 1910. That case however does not help the Appellant. In that casethe Plaintiff before dispossession had settled the lands at a rental of Rs. 40per year and the lower Appellate Court assessed mesne profits on that basisalthough 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 thelower Appellate Court had proceeded upon a wrong basis and observed as follows:

The Appellate Court considered not what the Defendant may betaken 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 theCode of Civil Procedure. The duty of the Court in estimating mesne profits isthere 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 thelower Appellate Court in order that mesne profits may be ascertainedaccordingly." Now, sec. 2, sub-sec. 12 of the Civil Procedure Code saysthat mesne profits means those profits which the person in wrongful possessionof such property actually received or might with ordinary diligence havereceived. That decision therefore goes against the Appellants contention. Thethird objection is as to the bhaoli rent, but the average produce has been foundon the evidence and the rent has been assessed at half the produce. The fourthobjection relates to the charges on account of well and earthwork but theCommissioner has found that they do not exceed very much the allowance of 10per cent, allowed on the head of collection charges. We are not disposed tointerfere with the assessment made by the Commissioner. There is no reason,however, why the Defendants should not be allowed a deduction of the amountspaid by them on account of Government revenue and ceases, the chelas of whichwere filed in the case.

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

14. There will accordingly be a decree for Rs. 400 in favourof the Plaintiff. The Defendants 12 to 14 will be liable to the extent of1/3rd, and the Defendants 15 and 16 to the extent of 2/3rd.

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

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Dursan Singh and Ors. vs. Bhawani Koer (09.05.1913 - CALHC)