Authored By : S.C. Ghose, Robert Fulton Rampini

S.C. Ghose and Robert Fulton Rampini, JJ.

1. This appeal arises out of an application made by thedecree-holder for. ascertainment and recovery of mesne profits in terms of anorder made in the decree passed between the parties.

2. It appears that the suit, which was instituted in theMunsifs Court, was for recovery of possession of certain lands upon the groundof illegal dispossession, and it was valued at Rs. 950 being the value of thelands in question. No mesne profits were claimed up to date of suit, there beingperhaps none to be recovered, the suit being instituted shortly after thedispossession, but it was prayed in the plaint that the mesne profits from thedate of suit to that of recovery of possession as might be ascertained inexecution of the decree should be awarded to the plaintiff. And a decree waspassed in accordance with the prayer of the plaintiff.

3. The decree-holder presented his petition to the Munsif,asking that the amount of mesne profits might be assessed, and he roughlyestimated it at Rs. 1,595, and thereupon a question of jurisdiction was raisedby the defendant; and both the Court of First Instance and the District Judgeon appeal have held that the Court of the Munsif has no authority to determinein this case the amount of mesne profits at any sum exceeding Rs. 50, thepecuniary jurisdiction of that Court being limited to Rs, 1,000 only, and thevalue of the claim in the suit being Rs. 950.

4. It appears to us that the arguments used by the lowerCourts, and those that have been pressed upon us by the learned vakil for therespondents, might perhaps apply to a proceeding for the recovery of mesneprofits accruing before the date of the institution of the suit in which thedecree was made. In such a case, a cause of action for the recovery of mesneprofits arises at the time of the suit, and such a cause of action may or maynot be joined with a suit for the recovery of the Immovable property (seeSections 44 and 45 of the Code of Civil Procedure); and if such mesne profitsare claimed in the same suit (the amount being only approximately given in theplaint) the Court may under Section 212 of the Code either determine the amountby the decree itself, or may pass a decree for the property, and direct anenquiry into the amount of mesne profits, and dispose of the same on furtherorders. In such a case, the final decree in the cause has to be made when theamount of mesne profits, if left undetermined at the time of the preliminarydecree for the Immovable property, is ascertained. But even in such a case itis extremely doubtful whether, if the amount of mesne profits determined onfurther orders being added to the value of the property itself, as given in theplaint, exceeds the pecuniary jurisdiction of the Court in which the suit was brought,the said Court would have no jurisdiction to make the final decree in thecause. But however that may be, where no cause of action for mesne profits hasarisen on the date of the institution of the suit, and where none can thereforehe claimed, as in this case, the Court may provide in the decree for thepayment of mesne profits from the date of suit until the delivery of possessionor until the expiration of three years from the date of decree (whichever eventfirst occurs) with interest thereupon. We do not think that in such a case, atleast, the Court which has to determine the amount of mesne profits should beguided in the matter of jurisdiction by the amount which may be approximatelyclaimed by the decree-holder in his application, or which may be determined oninvestigation. The amount of mesne profits would depend upon the length of timeduring which the defendant, notwithstanding the decree, may choose to keep theplaintiff out of possession. It may happen that the defendant delivers up possessionshortly after the decree, and in that event the amount recoverable by theplaintiff would be small and might fall within the pecuniary jurisdiction ofthe Court, while, if the defendant does not so deliver up possession, theamount may be much larger and exceed (the value of the suit being added to it)the jurisdiction of the Court In most cases, the Court would not be in aposition to say whether it has jurisdiction or not until the enquiry into theamount of mesne profits has been completed; and it is not probable that theLegislature should have intended that after all the enquiry has been made, theCourt should be deprived of jurisdiction, or should not be permitted to orderpayment of a larger amount than what, added to the value of the suit, wouldfall within its pecuniary jurisdiction, and that the plaintiff should either bedriven to another Court for the recovery of the amount exceeding the sumawarded by the Court executing the order, or should have no remedy at all inthat respect. In the case of Puran Chand v. Roy Radha Kishan I.L.R. Cal. 132decided by a Full Bench of this Court, the learned Judges observed as follows:The object of enacting Section 211 appears to have been the prevention ofunnecessary litigation and multiplicity of suits, and for this purpose theyempowered the Courts to give, with the possession of the real property, suchwasilat as the plaintiff would be entitled to by law. The proceedings,therefore, in determining the amount of wasilat are not proceedings in executionof a decree in regard to any fixed amount, but merely a continuation of theoriginal suit, and curried on in the same way as if a single suit were broughtfor mesne profits by itself." And it appears to us that if the Munsif hadjurisdiction to try the original suit, he has equally jurisdiction to giveeffect to the order he made in the decree as regards mesne profits.

5. The learned vakil for the respondent in the course of hisargument relied upon certain observations of a Divisional Bench of this Courtin Mohini Mohan Das v. Satis Chandra Boy I.L.R. Cal. 704 but it will beobserved that the question which the learned Judges had there to decide was asto the forum of appeal, and not as regards the jurisdiction of the OriginalCourt.

6. Upon the whole, we think that the Munsif had jurisdictionin this case to determine the amount of mesne profits claimable by thedecree-holder under the order passed in the decree and to award such sum as maybe found justly due to him.

7. The appeal will be allowed with costs and the caseremitted to the Court of First Instance for carrying out the order which wehave just made.

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Rameswar Mahton and Ors.vs. Dilu Mahton and Ors.(23.01.1894 - CALHC)