Charles Perry Hobhouse, J.

1. The defendants in this case are grandsons of one BireswarRoy who died many years ago. The respondent is the senior of them and the onlyone who had attained majority when this suit was instituted. It is he who hasconducted the defence throughout. The plaintiff, now appellant, is also agrandson of Bireswar in this sense, that Baroda, Bireswars daughter, adoptedhim. Bireswar made several grants of property to Baroda which the plaintiffclaimed after her death either as heir or as devisee. Possession of them wastaken by or on behalf of the defendants, and in the year 1882 the plaintiffsued to recover them. The question to be decided in this appeal arose in theexecution of the decree then obtained by the plaintiff.

2. The decree is dated 23rd December 1883. It declares theplaintiffs right to the villages or estates of which he has been dispossessed,and it proceeds thus: "And that he do get from the defendants khaspossession of the same and mesne profits for the period of dispossession, andthe Rs. 2,400 claimed for maintenance allowance; that the mesne profits beascertained on inquiry at the time of the execution of decree; and that theplaintiff do get from the defendants a total of Rs. 1,255 7 annas 9 pies onaccount of the costs in this suit, with interest from this day till the day ofrealization at the rate of Rs. 6 per cent, per annum."

3. In the year 1885 the plaintiff obtained possession of allestates, except one called Nyadiar, of which he did not obtain possession tillMay 1891. The present proceedings for account and recovery of mesne profitswere commenced by petition filed in January 1890. The plaintiff asked for mesneprofits for three years prior to the institution of the suit up to the date ofrecovery of possession.

4. On the 14th February 1890 the Subordinate Judge appointedan amin to conduct the inquiry and gave him written instructions how toproceed. Another amin was afterwards substituted for the first, but heproceeded on the same instructions.

5. On 1st September 1891 the second amin made his reportwhich finds a sum of Rs. 14,774 due for mesne profits. The respondent filed apetition of objection on 19th September 1891 afterwards summarized and slightlyvaried on 28th November 1891. The case was heard by the Subordinate Judge on31st March 1892. He passed a judgment, which in most respects maintains theamins report. The respondent appealed to the High Court who, differing fromthe Subordinate Judge on several points both of principle and detail, set asidehis order and remanded the case for the purpose of ascertaining the mesneprofits which the plaintiff is entitled to in accordance with their foregoingobservations. That is the order from which the plaintiff now appeals. The caseruns very much into details, but there are some matters of principle to whichtheir Lordships will first address themselves.

6. As regards the form of the order which in effect throwsthe whole account open again, Mr. Mayne was asked whether under the provisionsof the Code which relate to remands it was not necessary to state morespecifically the issues which the Subordinate Judge is required to decide onremand; and he did not dispute that the remand made was incorrect. Thatmiscarriage in Procedure, however, though important, does not affect the legalmerits of the questions in dispute between the parties. If on those questionstheir Lordships agreed in substance with the High Court the decree could bebrought into conformity with the directions of Sections 562-566 of theProcedure Code But with few and unimportant exceptions their Lordships afterhearing full argument have to express agreement with the views of theSubordinate Judge.

7. The most important point on which the High Court hold theSubordinate Judge to be in error is the mode in which the amount of mesneprofits is ascertained. The Subordinate Judge directed the amin to ascertain asto certain nij lands, the value of the crop which could have been grown uponthem; as to some waste lands, their rates of rent; as to some gardens heldkhas, the value of their produce; as to land settled with tenants, their mesneprofits; and whether any land was settled at a low rate by the judgment-debtorsduring the period of dispossession.

8. He continues:

In order to ascertain these facts, it is necessary to makemeasurement, of the lands, and to ascertain the proper rates and rents, and toshow separately and in detail the mesne profits of the different itemsascertained, after receiving oral and documentary evidence and making a khatianof the dakhilas. of tenants.

9. From an interim report made by the first amin to theSubordinate Judge on 20th September 1890 it appears that the plaintiff wasmaking slow progress. He said there were four or five hundred tenants on theland; that they would not appear voluntarily, being under the influence of thedebtors; that there was difficulty in finding them, and in serving summonsesduring the rainy season. The amin adds that he is instructed to inspect thedakhilas of tenants which will take a long time because of their number, and bythe time that is done the land will be dry enough for measurement. In themeantime he is putting pressure on the plaintiff who, as he intimates, has notshown sufficient activity. Upon this report being made the plaintiff presenteda petition alleging that the delay was due to the amin who would not or couldnot come to the place before the rains. Shortly afterwards the change of aminstook place.

10. The report of the second amin, who did all the work thatwas done, again shows the difficulties that beset the plaintiff in the inquiry.

It was difficult for the decree-holder to adduce moreevidence than that found on the spot, because the judgment-debtors are powerfulzemindars of the place and all the tenants are under their control and obedientto them. The decree-holder is a man in ordinary circumstances. He was not a manof influence or power in the mofussil, so that he could duly muster thetenants, and prove his cause or make them file their dakhilas, andsatisfactorily establish his case.... Notwithstanding that the judgment-debtorNo. 1 (the present respondent) was repeatedly called upon to produce thecollection papers, the papers showing the lands and their jummas, no paper wereproduced on his behalf; and the evidence that was taken of the few witnesses onhis behalf was not sufficient. A sheet of paper containing the rates of rent ofSabrul village, which was produced on his behalf, was an incomplete copy, andit can hardly be relied on.

11. Under these circumstances the amin had recourse to otherevidence. As. regards Harifala, one of the largest properties, he made a mapaccording to the boundaries given in the decree. These boundaries were verifiedby witnesses; on both sides. Then he found the quantity by actual measurement,and ascertained by the collection papers and such other evidence as he couldget the rates at which the land could be let. Apparently he pursued the samecourse as regards Benodepur, the only other large property.

12. The defendants objection is that the amin did notproceed on the basis of the tenants dakhilas or receipts for rent. TheSubordinate Judge holds that the amin did rightly. The High Court thinkotherwise. They say that the Subordinate Judge has charged the defendant on thebasis of wilful default, and that there is no case for such a charge. What heought to have done was to ascertain the actual assets of the estate. Theycomment on the absence of rent receipts, and consider that in their absence theevidence is insufficient to show the value of the lands.

13. There are then two questions raised on this part of thecase: 1st, whether the Subordinate Judge was bound to ascertain the actualassets, by which, as their Lordships understand, the learned Judges mean theactual amount of money or value which reached the hands of the defendants; and2ndly, whatever was to be ascertained, whether it was essential to resort tothe evidence of rent receipts.

14. It seems to their Lordships that the first question issettled by the Code of Civil Procedure. The original Code of 1859 did notcontain any definition of mesne profits. The Code of 1877, Section 211, addedan explanation: "Mesne profits of property mean those profits which theperson in wrongful possession of such property actually received or might with ordinarydiligence have received therefrom." In the existing Code of 1882 thatexplanation is repeated with an addition which gives rise to another dispute inthis case, viz., "together with interest on such profits." The amin,as directed by the Subordinate Judge, has tried to ascertain the very thingwhich the Code directs. He called for evidence of actual receipts. Whether ifthat had been produced it would have satisfied the inquiry cannot be known. Itmight still have been necessary to enquire into the possibility of largerreceipts by ordinary diligence. But the plaintiff could not, and the defendantwho was the actual recipient would not, produce the evidence. So the aminturned to the other alternative, viz., to ascertain what might have been receivedwith ordinary diligence. The Subordinate Judges order does not charge thedefendants with wilful default. Indeed, if it did, it would adopt a principlemore favourable to the defendant than that of the Code; for there may be valuesrecoverable by ordinary diligence which yet it would not be wilful default notto recover. Wilful default is charged against persons in rightful possessionthough accountable for their dealings with the property. These defendants werewrongfully in possession. And prima facie it is fair to infer that a person inpossession of land may by ordinary diligence get rent for it according to theprevailing rates for such land, and that the true owner wrongfully dispossessedhas been a loser by that amount.

15. This view is quite consistent with holding that theproper evidence was not procured. The High Court attach great importance to thedakhilas and quite rightly. They are not indeed so important as they would beif the inquiry was confined to the actual receipts, because from variousmotives lands may be let at rates lower than the ordinary ones. Still indeciding a dispute on the question what is the ordinary rate, actual paymentsmade by tenants must always be of value. But it is clear from the reports ofboth amins that the plaintiff had great difficulty in procuring this evidence.The Subordinate Judge says speaking of Harifala:

As regards this item, the judgment-debtor contends that theamin is wrong in not ascertaining the amount of wasilat by referring to thedakhilas of the tenants, but by finding the quantities of the several kinds oflands contained within the mahal and the rate at which each bigha of land couldbe let out. I cannot say that the amin is wrong therein. All the tenants andall the dakhilas of each tenant could not be found. They are mostly ryots ofthe defendant judgment-debtor. The defendant should have produced all of themand made them produce all their dakhilas; and when he did not produce them andmake them produce all their dakhilas, I cannot say that the amin was wrong innot ascertaining the amount by reference to the dakhilas. Again the principleof ascertaining the amount by reference to the dakhilas is wrong. It may be, asurged by the decree-holder, that the judgment-debtor let out the lands at a ratelower than the ordinary one in order to make the tenants come over to his side.I am, therefore, of opinion that the amin was right in ascertaining the amountby finding out the quantities of the lands contained within the mehal and therate at which each of them could be let out.

16. Moreover the defendant was the beneficial owner of therents for which these dakhilas were given, and though he may have been a minorfor part of the time the evidences of receipt by his guardians must be in hispower. It has been shown above what the second amin says of his silence. It isclear that he could if he pleased have put in evidence which would show whetherthe inferences of value drawn by the amin Would or would not stand the test ofactual transactions between lessor and lessee; but he did not call the tenantswith their receipts or produce his own accounts. Their Lordships asked Mr.Mayne whether the defendant had given any counter-evidence at all to rebut theplaintiffs case, and he answered that none could be found, the plaintiffscase being left precisely as he put it before the amin and the SubordinateJudge.

17. On this part of the case it appears to theirLordships--1st, that the Subordinate Judge rightly apprehended what is theproper object of an inquiry into mesne profits; and 2ndly, admitting thetenants receipts to be evidence of value and possibly of great value, theywere not necessary evidence; their importance has been overrated owing to amisapprehension of the object of the inquiry; and the defendants failure toput them in has been visited by the Court on the head of the plaintiff.

18. Another question, important in principle, though itcannot be ascertained of what practical importance it was to the result of thecase, is whether the Subordinate Judge ought to have received further evidenceafter the amins report. It seems that after lodging objections the defendantsummoned witnesses and on their non-appearance applied for warrants of arrest.The following is the Subordinate Judges note of what passed in Court:

An objection has been preferred on the part of thedecree-holder that the judgment debtor has no right to put in new evidence. Itdoes not appear what matters the judgment debtor seeks to prove by producingwitnesses. An amin is appointed to ascertain the wasilat after taking evidencefrom the parties, and this was the case in this instance. It appears that bothparties have adduced evidence before the amin. The evidence which each partyneeded to adduce ought to have been produced before the amin. It has not beenobjected that the amin did not give the judgment-debtor an opportunity toadduce evidence, or that he declined to receive any evidence which has beenalready presented. No reason appears why the judgment-debtor should now beallowed to adduce evidence, which he might have and ought to have producedbefore the amin, but which he of his own accord withheld. If such a thing isallowed, then the main purpose connected with ascertainment of wasilat by theamin, and of the laws and circulars relating thereto, will stand defeated.Consequently, additional evidence in this matter cannot now be taken.

19. The High Court think this decision was wrong and theyfound their opinion on a judgment delivered by Sir Richard couch in the case ofAzim Sarung v. Almooddeen (1877) 17 W.R., 270. That report is one of the largenumber contained in The Weekly Reporter which are useless or misleading,because the facts of the case are not stated. The only point of law or ofpractice laid down in the judgment is that the Court will treat the aminsreport as part of the evidence in the suit, and will take other evidence ifnecessary. If that judgment is taken as laying down that it is necessary totake further evidence whenever one of the parties chooses, it has beenmisconstrued. The High Court in that case considered the further evidencenecessary and the reason given for rejecting it insufficient. Why, we do notknow, because no facts are stated except the tender of the evidence and itsrejection.

20. The sections of the Code (392, 393) which relate tolocal investigations do not contemplate the tender of further evidence after anamins report, except the examination of the amin himself, but they do notforbid it. They are consistent with either course, and the point must bedecided on general principles according to the facts of each case.

21. In every trial there must come a time when it is properthat the evidence should be closed. After that time new evidence should not begiven as a matter of course or without the assent of the Court. As regardslocal inquiries it may in many cases be clearly proper and convenient to takeevidence in Court after taking it in the locality. In others it may be equallyclear that the locality is the proper place and the time of inquiry the propertime for bringing the proposed evidence. In this case the most obvious time forclosing evidence on the inquiry was the presentation of the amins report,which is itself made evidence by Section 393. What reason did the defendantgive for adducing further evidence None whatever, either in his writtenobjections to the report or in his grounds of appeal from the SubordinateJudge. He did not even state what was the nature of the evidence he desired tosubmit, nor does the High Court state it, nor can the Counsel at the bar nowstate it. It may for all that appears be purely frivolous. The learned Judgesbelow do not in terms affirm the absolute right of every party to a localinvestigation to adduce evidence before the Court after a Commissionersreport. But their decision cannot be supported, unless that right exists;however much the party may have neglected to produce his evidence at the propertime and in the proper place; even though, as in this case, he has disregarded repeateddemands of the amin for his evidence, and even though, as in this case, heeither cannot or will not state what is the nature of his fresh evidence, norwhy he brings it so late, which may be because a discussion in the localitydoes not suit him so well as a discussion at a distance. Their Lordships agreewith the Subordinate Judge that such a practice would, at least to a greatextent, defeat the very object of local investigation. The whole case might betried over again not in the locality but at the distant seat of the CivilCourt. It seems to them that the Subordinate Judge has applied sound principlesof adjudication to the facts of the case.

22. Another point on which the High Court reverse thedecision of the Subordinate Judge is the allowance of interest on the profitsas ascertained year by year. Mr. Branson has shown that there is error insupposing that the interest has been calculated with quarterly rests, but thatis not the ground of the judgment. The learned Judges below think that thedecree did not award any interest at all. That depends on the construction ofSection 211 of the Code which imports into the expression "mesneprofits" the addition of "interest on those profits."

23. The learned. Judges say that the Court has still jurisdictionto give or refuse interest as. it chooses. Their Lordships agree, because mesneprofits are in the nature of damages which the Court may mould according to thejustice of the case. But the question is, what is the effect of a decree whichgrants mesne profits, and says nothing about interest, which, as theirLordships think, is the proper construction of the decree in this suit. Thelearned Judges treat that silence as equivalent to a decision that there be nointerest. But then it is difficult to see what effect is given to thealteration made in Section 211 in the year 1882. Its obvious effect is toprovide that a simple decree for mesne profits shall carry interest on them. Noreason has been assigned for holding the true effect to be other than theobvious one. If the Court does not intend to give interest it should say so.The learned Judges give reasons for thinking that interest ought not to begiven in this case. But in execution proceedings we are only construing thedecree and not considering its merits. The case which is cited from 11 IndianAppeals, 88 [Kishna Nand v. Partab Narain Singh I.L.R (1884) 10 Cal., 785, hasno bearing on the present one. The defendant there was the manager of anencumbered estate under special statute and not in wrongful possession at all.The decree for account expressly disallowed interest. On appeal this Boardrefused to interfere with the discretion of the Courts below. Speaking in 1884,their Lordships declined to say "whether in the present state of the law,having regard to the provision in the Procedure Act in which there is anexplanation of mesne profits, interest was allowable."

24. Another question arises out of a tankha, or annuity, ofRs. 400 per annum granted in perpetuity by Bireswar to Baroda. It was speciallysecured to her by providing that she might deduct the amount out of the rentreserved and payable by her upon grants made to her of the Benodepur andHarifala estates by Bireswar. Of these properties the plaintiff wasdispossessed. The amount of tankha up to date was recovered by decree. Inestimating mesne profits after decree the defendant claimed to be allowed thereserved rent which was not disputed. But then the plaintiff claimed to set offthe tankha against it, and the Subordinate Judge allowed it. The High Courthave disallowed it. Their Lordships confess themselves unable to understand thereasons of this disallowance as printed in the report; nor could Mr. Mayneexplain them. It is not alleged that in any way the plaintiff has got thebenefit of the tankha twice over. He is certainly entitled to it once. It mustbe held that the Subordinate Judge was right.

25. On two small items, 3 and 4, in the amins index,relating to a property called Sabrul, an unusual kind of controversy hasarisen. The Subordinate Judge states that no party raised any objection tothese items. At the hearing of the appeal before the High Court the defendantsCounsel denied this statement and produced an affidavit from one of thedefendants amlas to the effect that objection was taken. The learned Judges,observing that no contrary affidavit had been produced, thought that the twoitems should be the subject of adjudication. In point of fact there was acontrary affidavit by the plaintiff himself, who was in Court during the wholehearing before the Subordinate Judge, instructing his pleaders; but this mustsomehow have been overlooked. It has been shown by the amins report that thedefendant produced to him a paper relating to the rates of rent in Sabrul, butin such an imperfect state as to be useless. In the defendants detailedobjections to the amins report Sabrul is not mentioned. In the summary Sabrulis placed among a list of five properties of which it is alleged in generalterms that the rates of rent and the classification of lands are wrong. Itstrikes their Lordships as highly inexpedient that such a controversy should beraised by affidavit before the High Court without any application to theSubordinate Judge himself. If these items stood alone they would not, on thematerials before them, feel justified in sending the case back to theSubordinate Judge; but as this must be done on other points it may be moresatisfactory to have this dispute cleared up

26. Other items which constitute points of difference, allcomparatively small may be briefly disposed of. On the question of collectioncharges, whether they should be 5 or 10 per cent, which is not made the subjectof evidence, their Lordships think it right to follow the High Court. As to thevillage of Nyadiar their Lordships agree with the High Court. The SubordinateJudge gives the plaintiff mesne profits up to the date of possession. But thatis more than three years from the date of the decree and to the extent of theexcess is unauthorised by Section 211 of the Code. As regards Chakran Pakuriaand Ghosepara in which cases the learned Judges think that the SubordinateJudge has made mistakes of a clerical kind, the mistakes have not been shown totheir Lordships, and the amounts must be very small; such as of themselveswould hardly justify further inquiry. But as the account has to be rectified insome particulars it may be reviewed on these points also.

27. There are several subjects on which the High Court abatethat the evidence is unsatisfactory to them; such as charges for fruit trees,for fruit-bearing land, and for cesses; and the existence and extent of khamarland in Benodepur. Their Lordships make the general observation that theappreciation of evidence by the High Court is and necessarily must besubordinated to their view of the proper issue to be tried, as to which theirLordships have expressed agreement with the Subordinate Judge. None of thesesubjects has been laid before their Lordships in any detail, and they see no reasonwhy the conclusions arrived at, first by the amin and afterwards by theSubordinate Judge, should be disturbed under a general re-opening of the wholeaccount.

28. Their Lordships will state the heads of the decree whichthey think the High Court should have made on the appeal to them. Declare thatthe collection charges should be at the rate of 10 instead of 5 per cent, andrefer it to the Subordinate Judge to remodel the account accordingly. Declarethat mesne profits for Nyadiar should not be allowed for any later time thanthree years from the date of the decree, and refer it to the Subordinate Judgeto remodel the account accordingly. Refer it to the Subordinate Judge toascertain whether he has erroneously allowed mesne profits for Ghosepara twiceover, and whether he has in his final estimate allowed mesne profits forChakran Pakuria which in his detailed judgment he disallowed. Refer it to theSubordinate Judge to make a formal adjudication on items 3 and 4 in the aminsindex. Let the Subordinate Judge finally readjust the amount recoverable by theplaintiff in accordance with his findings on the foregoing references. Quoadultra dismiss the appeal with costs in proportion to the amounts in respect ofwhich the parties may, after the inquiry has been completed, be found to havesucceeded and failed respectively.

29. That is the decree which their Lordships will humblyadvise Her Majesty to make in lieu of the decree now appealed from which willbe discharged.

30. As regards the costs of this appeal, in which the ruleof proportion observed in India does not prevail, their Lordships consider thesuccess of the defendant to be so minute in proportion to the whole controversythat it ought not to weigh on the question of costs. The mesne profits ofNyadiar constitute the only point of principle on which the respondent hassucceeded. Nyadiar is valued at Rs. 68 and a fraction, and the time ofexcessive mesne profits is less than 4 1/2 years; so there is little over Rs.300 in question. On all the important points the respondent is held to bewrong. He must pay the costs.

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Grish Chunder Lahirivs. Shoshi Shikhareswar Roy(24.03.1900 - CALHC)