The fourth contention deserves consideration. The definition of mesne profits as given in the Codeof Civil Procedure, Section 2, Sub-Section (12) runs in these words: "Mesne profits of properties means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received there from together with interest on such profits, but shall not include profit s due to improvements made by the person in wrongful possession." Wrongful possession by the defendant is the very essence of a claim for mesne profits, and the very foundation of a decree therefor. In the case of Haradhun Duit v. Joy Kisto Banerjee (1869) 11 W.R. 444, Jackson, J. observed that it would be impossible to hold the defendant liable for profits which he had not received and could not have received. In the case of Indurjeet Singh v. Radhey Singh (1874) 21 W.R. 269, Phear J., observed as follows: "Generally from the nature of claim to mesne profits, means profits ought not to be estimated for any period during which the defendant, who is to be made responsible for them was not active in keeping the plaintiff out of possession." In that case the property was in the hands of a Receiver appointed by the Court and the learned Judge pointed out that the defendant could not be answerable for damages for mesne profits in respect of those years during which an officer of the Court and not the defendant was keeping the plaintiff out of possession. In the case of Abbas v. Fassihuddin [1897] 24 Cal. 413 Trevelyan and Beverley, JJ., observed, "If the defendant was excluded from possession she can scarcely be said to have been in wrongful or any possession. She cannot be said to have actually or even impliedly received the profits, nor could she, with ordinary or extraordinary diligence, have received them." It was further held in that case that a wrongdoer is not responsible for the acts of another wrong-doer who is independent of him. In the case of Ishan Chandra Budhan v. Amuddin [1901] 5 C.W.N. 720, Hill, J. held that damages are claimable only for the period of the defendant's wrongful possession actual or constructive. The same principle is deducible from the decisions in the case of Churn Singh v. Rangoo Singh [1871] 15 W.R. 221 and Kishnanand v. Partab Narain [1884] 10 Cal. 785. In the case of Kali Charan v. Ashutosh [1916] 25 C.L.J. 140 Sanderson, C.J., at p. 144 very clearly pointed out the necessity of the defendant being in possession during the period for which the mesne profits were claimable, and Mookerjee, J. at pp. 147-148 on a review of the authorities laid down " that it is an elementary rule that in an action for mesne profits when the ground of the action is the bare fact of possession, damages can only be recovered for the time possession was actually retained." Applying these principles to the question which we have to consider in my opinion it is impossible to hold by any stretch of imagination, that during the time that the lands remained under attachment by the operation of the order under Section 146, Cr.P.C. and this Court was in custody of it on behalf of the rightful owners, that is to say of the plaintiffs in the present case, that the defendants were in possession of the lands. The direction regarding mesne profits in so far as it relates to the 9 hals of land kept under attachment as aforesaid cannot therefore be supported in law.
Calcutta High Court
Chhaganmull Agarwalla And Ors. vs Amanathulla Mohammad Prodhan And ... on 13 March, 1924
Equivalent citations: AIR 1924 Cal 1010
JUDGMENT M.N. Mukerji, J.
