1. This appeal is presented on behalf of the plaintiffs against judgment and decree of Mr. S.S. Hussain, Additional Subordinate Judge of Arrah, dated 4-2-1947.

2. The decree in question is a final decree for mesne profits. The plaintiffs claimed mesne profits for four years, that is, 1348 Fasli to 1351 Fasli as regards the land described in Sen. C to the plaint. With respect to Sen. D land the claim of the plaintiffs for mesne profits was for three years from 1348 Fasli to 1350 Fasli. The total claim of the plaintiffs for mesne profits for both Sens. C and D lands was valued at Rs. 27,717/15/3. A pleader commissioner was appointed in this case to make, local investigation.

According to his report, the plaintiffs were entitled to Samjira paddy at the rate of ten maunds per bigha, Ujla paddy at the rate of nine maunds per bigha, Silhat paddy at the rate of six maunds per bigha and Catch crops (Khesari and Kerao) at the rate of one maund per bigha and Tisi at the rate of hall a maund per bigha. The calculation was made in terms of Pucca bigha and Pucca maund. With respect to Schedule D land, the Commissioner took the view that the produce of wheat would be at five maunds per bigha, and wheat and gram at 3 1/2 maunds per bigha. It is necessary to mention that, according to the case of the plaintiffs, Samjira paddy was grown on G.38 acres, Ujla paddy was grown on 12.02 acres and Silhat paddy on 4.20 acres. The area or Schedule D land was 11.46 acres, out of which wheat was grown on 2.40 acres and Gochana (wheat and gram) was grown on 9.06 acres.

The pleader commissioner found that crops were grown on the Schedules C and D lands except plot No. 1004 having an area of 28 acre on which there was no produce grown. The Commissioner also was of the opinion that the price of the crops should be calculated at the Gazette rates for all the crops except that for Shamjira paddy, the price of which should be 33-1/3 per cent, higher than that of the common paddy as mentioned in the Gazette. When the matter came before the learned Additional Subordinate Judge, it was contended on behalf or the defendants that for the past years, 1345 Fasli to 1347 Fasli, the plaintiffs had claimed in the plaint mesne profits at the flat rate of five rupees per bigha for Schedule C lands and at the fiat rate of Rs. 3/8/- per bigha for Schedule D lands. The rate mentioned in the plaint refers to Kucha bigha, and allowance has been given for the cost of cultivation also.

The learned Additional Subordinate Judge accepted the argument, of the defendants and held that for the subsequent years from 1348 to 1349 Fasli the plaintiffs could not be given mesne profits at a higher rate than what they had themselves claimed in the plaint for the past years. For the years 1350 and 1351 Fasli, the learned Additional Subordinate Judge granted mesne profits at the rate of rupees six per bigha of Schedule C land and for the year 1350 Fasli at the rate of rupees lour per bigha of Schedule D land. In effect, the decree for mesne profits granted to the plain-tills was for a sum of Rs. 2,488/10/- and interest of Rs. 675/1/6, calculated from the 1st of Magh, 1348 Fasli.

3. The main argument of Mr. Verma in support of this appeal is that the report of the Commissioner should have been accepted by the learned Additional Subordinate Judge and there is no justification at all for allowing the plaintiffs mesne profits at the flat rate without taking into consideration the nature and quality of the land and the produce grown on it for the years in question. On this point learned counsel referred to the decision of the Judicial Committee in --Harry Kempson Gray v. Bhagu Mian : AIR 1930 PC 82 (A), in which Sir George Lowndes has laid down the test for assessment of mesne profits. The test is clearly not what a person has lost by his exclusion, but what the trespasser has or might reasonably have made by his wrongful possession. The true test in calculating mesne profits is what the ordinary prudent agriculturist would have grown on the land from which the plaintiffs have been excluded.

Mr. Verma put forward the contention that, merely because for the previous years the plaintiffs have claimed mesne profits at reduced rates, there is no question of estoppel. In our opinion, the argument addressed on behalf of the appellants is well founded. The claim for the past years from 1345 to 1347 Fasli made by the plaintiffs was at the flat rate of Rs. 5 per bigha of Schedule C and at the flat rate of Rs. 3/8/- per bigha of Schedule D land. It is no doubt a circumstance in this case to be taken into account for the purpose of assessment of mesne profits, but the admission in the plaint is, by no means, conclusive. It might well be that the plaintiffs deliberately claimed mesne profits at a low rate for the purpose of avoiding payment of court-fee. The real test to be applied is what an ordinary prudent agriculturist would have grown on the land in dispute for the years 1348 to 1351 Fasli. We think the learned Additional Subordinate Judge has misdirected himself in law in holding that the claim of the plaintiffs for the years 1345 to 1347 Fasli was a decisive circumstance.

As regards the actual produce grown on the land, the Commissioner has given an elaborate report in this case after making local inspection. There was a previous report by Mr. Radhikaraman Prasad regarding the crop cutting experiment. This report was rightly disregarded by Mr. Thakur Lalmina Prasad, who made the assessment of mesne profits. The reason given by him was that the result of crop cutting experiment was always

"faulty and experience has shown that generally, the produce of the entire land never comes to the quantity answering to the experiment rate."

The learned pleader commissioner placed reliance upon the village note, Ex. 9, which mentions that "the produce of rabi and paddy is 5 to 8 maunds per bigha". The village note also mentions that the weight & measurement are of 11 Gandas: 1 Seer and 1 Lagi: 3 1/2 Haths. The rate of standard weight and measurement, according to the village note, would be 7 to 11 Pucca maunds per one Pucca bigha.

The pleader commissioner also referred to the important circumstance that the defendant had suppressed the Delhi papers in this case, though such papers were admittedly maintained. As regards the plaintiffs evidence, the pleader commissioner took the view that it was much exaggerated, and ultimately he found that for Schedule C land the produce of Samjira paddy would be ten maunds per bigha, of Ujla paddy nine maunds per bigha, of Silhat paddy six maunds per bigha and of catch crops, 1 maund of Khesari and Kerao and 1/2 maund of Tisi per bigha. As regards Schedule D land the Commissioner reported that the produce of wheat would be five maunds and of wheat and gram (Gochana) 3 1/2 maunds per bigha.

There is no dispute between the parties that Samjira paddy was grown on 6.38 acres, Ujla paddy on 12.02 acres, Silhat paddy on 4.20 acres, wheat on 2.40 acres and Gochana on 9.06 acres, We consider that the pleader commissioners report represents a fair estimate of the produce of the different crops on the land for the period in dispute. But, there is one defect in the pleader commissioners report, and that is that he has not allowed any deduction on account of the cost of cultivation. We think that a fair allowance is 20 per cent, as cost of cultivation for each class of land and that allowance ought to be given. We, therefore, hold that the pleader commissioners report should be accepted subject to the reduction of 20 per cent, of the produce on account of cost of cultivation with respect to each kind of produce.

4. As regards the sale rates, Mr. Verma on behalf of the appellants conceded that he would not challenge the report of the pleader commissioner, nor does learned counsel challenge the report that there was no produce grown on plot No. 1004 for the years in question. In our opinion, the plaintiffs should be granted a final decree for mesne profits for the lands in question according to the rate of produce and the sale rate given in the pleader commissioners report subject to the condition that 20 per cent, should be deducted as costs of cultivation. As regards the rate of interest, the Commissioner has given six per cent. per annum, which is a fair rate. We accept this part of his report also, and direct that interest should be calculated accordingly.

5. For these reasons we allow this appeal with costs to the extent indicated above.

6. It is necessary to add that the memorandum of appeal in this case is valued at Rs. 5000, and court-fee has been paid on that amount alone. In the prayer portion also the appellants only stated that "the claim of mesne profits may be increased to the extent of Rs. 5000 more, or any other order or orders may be passed as may be thought fit and proper". We should, therefore, make it clear that if the amount of mesne profits calculated accord ing to our directions exceeds the decree of the lower Court by more than Rs. 5000. the appellants should be entitled only to a decree to the extent of Rs. 5000 in excess of what has already been de creed by the lower Court.