P L D 1969 Dacca 120 (PLP)

M. R. KHAN, J.‑This first appeal by the sole defendant Sreenath Paul arises out of Money Suit No. 1 of 1957 of the Court of the Subordinate Judge, Noakhali, which was one for recovery of mesne profits. The plaint of the suit contains four Schedules, namely, 'Ka' 'Kha', 'Ga' and 'Gha'. The lands of schedule 'Ka' include, among others the lands of Schedule 'Kha' which appertain to the "Lakheraj Puran Khane Bati". The lands of Schedule 'Ga' represent two‑thirds share of the lands of Schedule 'Kha', The plaintiffs claimed mesne profits in respect of the lands of Schedule 'Ga'. The account of mesne profits from the lands of Schedule 'Ga' are shown in Schedule 'Gha'. This suit was preceded by a number of litigations between the parties the earliest of them commenced on 25‑9‑1925. On the said date, Partition Suit No. 326 of 1925 was instituted in respect of the lands of Schedule 'Ka' of the plaint of the present suit. The plaintiffs' case, as it appears from the plaint and other undisputed records of litigations between the parties, is that the lands of Schedule 'Ka' belonged to one Jagat Roy Basu. He was survived by his four sons Joykumar, Rajkumar Nabakumar and Kalikumar. Kalikumar died unmarried whereupon Joykumar, Rajkumar and Nabakumar got those lands in equal shares. Joykumar died leaving three sons Dinabandhu, Jagabandhu and Anathbandhu. The plaintiffs 1 to 4 are the heirs of Anathbandhu, the plaintiff No. 5 is the widow of Dinabandhu and the plaintiffs 6 to 10 are the heirs of Jagabandhu, Naba kumar was succeeded by his three sons Ambika. Abhoy and Aparna. Rajkumar's one‑third interest in the lands was auction purchased by the present plaintiffs' predecessors on 21‑1‑193V in Money Execution Case No. 5 of 1929. In the same Money Execution Case No. 5 of 1929, Sreenath Paul, the defendant of the present suit auction purchased the one‑third share of the lands inherited by Ambika, Abhoy and Aparna from their father Nabakumar. The said Partition Suit No. 326 of 1925 was instituted by Dinabandhu, Jagabandhu and Anath (predecessors of the present plaintiffs) against Rajkumar, Ambika, Abhoy and Aparna. By transposition under toe Court's order, Ambika and Aparna became plaintiffs 1 and 2 of the said Partition Suit. Rajkumar remained as defendant No. 1, Dinabandhu, Jagabandhu and Anath became defendants 2 and 4, and Abhoy became defendant No. 5 of that suit. Sreenath Paul who auction purchased one‑third share of the lands during the pendency of the Partition Suit was not made a party in that suit. A preliminary decree was passed in the Partition Suit on 22‑8‑1931 which was made final on 13‑3‑1943. As the result of the final decree in the partition suit, the present plaintiffs got a separate allotment of some lands including the lands of schedule 'Ga' of the present plaint. They got possession of the lands in their allotment except the lands of Schedule 'Ga'. In the meantime, the defendant Sreenath Paul brought Title Suit No. 52 of 1943 in the Court of the Subordinate Judge, Noakhali, against the present plaintiffs and prayed for a permanent injunction restrain ing them from taking possession of the lands of schedule 'Ga' of the present plaint on the declaration that the decree in Partition Suit No. 326 of 1925 is not binding on him. An application for a temporary injunction was also made in that suit, but it was disallowed by the trial Court. On appeal, a temporary injunction was granted on 14‑3‑1944 with the result that the present plaintiffs could not take delivery of possession of the lands of Schedule 'Ga' which fell in their allotment. The said Title Suit No. 52 of 1943 was dismissed on 30‑4‑1945. Title Appeal No. 120 of 1945 was preferred by Sreenath Paul against the decree dismissing his Title Suit No. 52 of 1943. The appeal was allowed on 24‑9‑1945. A second appeal, being No. 423 of 1946 was preferred to this Court by the present plaintiffs which was allowed on 16‑8‑

54. As the result of the judgment of this Court in the said second appeal, Sreenath's Title Suit No. 52 of 1943 stood dismissed. Sreenath Paul moved the Federal Court against the decision in the said second appeal, but leave to appeal was refused on 29‑5‑1956. During the entire period from the grant of the temporary injunction on 14‑3‑1944 to the date of refusal of leave by the Federal Court on 29‑5‑1956, the plaintiffs of the present suit were unable to take delivery of possession of the 'Ga' schedule lands on account of the order of temporary injunction and order of stay granted by the High Court and the Federal Court. After the refusal of leave by the Federal Court on 29‑5‑1956, the plaintiffs brought the present suit on 1‑10‑1956 claiming mesne profits from the defendant Sreenath Paul for the period from 17‑9‑1943 to 30‑9‑1956 in respect of the lands of Schedule 'Ga' on the ground that during the said period, he wrongfully received the profits of those lands belonging to the plaintiffs. The defendant filed a written statement denying generally the plaintiffs' contentions. But during the trial of the suit he did not dispute that the lands of Schedule 'Ka' of the plaint belonged to three brothers Jyokumar, Rajkumar and Nabakumar, nor did he dispute the genealogy as set out in the plaint. The fact that the plaintiff's predecessors auction purchased one‑third share of Rajkumar in Money Execution Case No. 5 of 1929 was not also disputed by him. He, however, contended that as the result of an amicable partition among the original owners, the present 'Kha' schedule lands fell exclusively to the share of Nabakumar and that Nabakumar's share, after it devolved upon his sons, was auction purchased by him in Money Execution Case No. 5 of 1929 on 21‑1‑1930 and since then he has been in exclusive possession of those lands on the basis of such auction purchase. The further case of the defendant is that the owners of the lands of 'Ka' schedule mortgaged those lands to one Krishna Kumar Dey who obtained a decree in Mortgage Suit No. 127 of 1930 against the present plaintiff's predecessors and in execution of that decree in Mortgage Execution Case No. 33 of 1931, auction purchased those lands and got possession thereof except the lands of the present 'Kha' schedule which were auction purchased by the defendant in Money Execution Case No. 5 of 1929. In view of the mortgage sale, the plaintiffs, it is alleged, lost all their interest in the lands and, for that matter, the lands of Schedule 'Ga' which are now in suit. In 1941, the present plaintiffs brought Title Suit No. 44 of 1941 against the present defendant and some others for declaration of title to, and recovery of possession of, some lands covered by Schedule 'Ka' of the present plaint. That suit arose out of proceedings under section 145 of the Criminal Procedure Code. The said suit was dismissed on 25‑7‑1942. Thereafter the present plaintiffs brought another Title Suit, being Title Suit No. 4 of 1943 against the present defendant and some others. That suit also arose out of proceedings under section 145 of the Code of Criminal Procedure, but it was dismissed for default on 16‑11‑1943. The defendant, therefore, contended that the plaintiffs, in view of the sale in Mortgage Execution Case No. 33 of 1931 and the dismissal of their Title Suit Nos. 44 of 1941 and 4 of 1943, have no subsisting interest in the lands of Schedule 'Kha' and, for that matter, the lands of Schedule 'Ga' of the plaint and as such they are not entitled to any mesne profits. The defendant further pleaded limitation and that the decree passed in favour of the plaintiffs in Partition Suit No. 326 of 1925 is invalid, inoperative, null and void. On the pleadings, the following issues were framed in the suit "(1) Is the suit barred by limitation ? (2) Are the plaintiffs entitled to any mesne profits? If so, to what extent? (3) Have the plaintiffs any right, title and interest in the suit lands ? (4) Is the partition decree in question (decree of O. O. Suit No. 326 of 1925) legal, valid, genuine and operative?" The trial Court answered all the issues in favour of the plaintiffs and, having regard to the evidence on record as to the profits of the lands of Schedule 'Ga' passed a decree for mesne profits for the period from 14‑3‑1944 to 29‑5‑56 as against the suit period from 17.9‑1943 to 30‑9‑1956. Taking the amount of mesne profits at Rs. 1,465‑13‑0 per annum, the suit was decreed for Rs. 17,739‑12‑0 with costs. In this appeal, all the aforesaid issues except issue No. 4 were pressed on behalf of the defendant appellant. It is not disputed that as the result of the final decree in Partition Suit No. 326 of 1925, the plaintiffs got the lands of Schedule 'Ga' of the plaint, among other lands, in their allotment. The defendant being a purchaser of one‑third share of the lands of Schedule 'Ka' in Money Execution Case No. 5 of 1929 during the pendency of the Partition Suit, was not impleaded in that suit. In Title Suit No. 52 of 1943 brought by the present defendant Sreenath Paul against the present plaintiffs it was asserted that the decree in Partition Suit No. 326 of 1925 was not binding against Sreenath, Exh. 2 is the judgment of the trial Court in Title Suit No. 52 of 1943. In that suit, the following issues were framed "(1) Is the decree in Partition Suit No. 326 of 1925 of the local Sub‑Judge's Court binding against the plaintiff ? (2) To what relief, if any, is the plaintiff entitled?" The Court trying the said suit held that the decree obtained by the present plaintiffs in Partition Suit No. 326 of 1925 is binding against the plaintiff of Title Suit No. 52 of 1943, i.e., Sreenath, the present defendant. In that view of the matter, that Court held that Sreenath Paul was not entitled to any relief and accord ingly dismissed his Title Suit No. 52 of 1943 on 30‑4‑1945. On appeal, being Title Appeal No. 120 of 1945, the District Judge of Noakhali, by his judgment dated 24‑9‑1945 Exh. 2 (e), allowed the appeal, decreed the Title Suit No. 52 of 1943 declaring that the plaintiff of that suit, namely, Sreenath is not bound by the decree made in Partition Suit No. 326 of 1925 and an injunction was granted restraining the defendants of that (i.e., the plaintiffs of the present suit) from disturbing the possession of Sreenath. A second appeal, being No. 423 of 1946 against the decree passed in Title Appeal No. 120 of 1945 was preferred to this Court. The decision of this Court in the said second appeal, vide the judgment, dated 16‑8‑1954 Exh. 2 (a) was as follows: "From what we have discussed above, we are of opinion that the learned Appellate Court was wrong in its decision that the plaintiff was not bound by the doctrine of lis pendens and that the defendants' claim was barred by limitation. We however hold that the plaintiff is hit by the doctrine of lis pendens and the defendants are not barred by limitation and that the learned trial Court was fully justified in dismissing the plaintiff's suit. The result, therefore, is that the appeal is allowed with costs, the judgment and decree of the Court of appeal below are set aside and those of the trial Court are restored and the plaintiff's suit is dismissed." Thus the decree in the Partition Suit No. 326 of 1925, as the ultimate result of Title Suit No. 52 of 1943, was found to be binding against Sreenath. In this connection, it is pertinent to note that the decree passed in Mortgage Suit No. 127 of 1930 brought by Krishna Kumar Day and the sale held thereunder as also Title Suits Nos. 44 of 1941 and 4 of 1943 were pleaded in Title Suit No. 52 of 1943 and these were taken notice of by the Court deciding that suit and also by the successive Courts of appeal. Mr. D. C. Bhattacharya, the learned Advocate for the defendant‑appellant, submits that although the decree in Partition Suit No. 326 of 1925 is binding against Sreenath, the plaintiffs have no interest in the suit lands inasmuch as their interest had already been sold in execution of the mortgage decree obtained by Krishna Kumar Day. As already stated, Krishna Kumar Day obtained his mortgage decree and executed it during the pendency of Partition Suit No. 326 of 1925. Therefore, the sale held in execution of the mortgage decree was also hit by its pendens. That being so, the plaintiffs were competent to proceed with the partition suit, and the decree was, therefore, rightly passed in their favour in that suit. When the decree in the partition suit is binding against Sreenath, the plaintiffs can execute that decree and recover from Sreenath the possession of the lands of Schedule 'Ga' of the plaint which fell in their allotment. This they can do, notwithstanding the sale, if any, in execution of the mortgage decree obtained by Krishna Kumar Day. Iii this connection, Mr. Asaduzzaman Khan, the learned Advocate for the plaintiffs respondents, submits that the lands of Schedule `Kha' of the plaint including the lands of Schedule 'Ga' which appertained to "Lakheraj Puran Khane Bati" were not the subject‑matters of the mortgage in favour of Krishna Kumar Dey. In support of this contention, the learned Advocate has drawn our attention to the following passage in the judgment of the trial Court in Sreenath's Title Suit No. 52 of 1943 Exh. 2 :‑ "It should be noted here that the trust deed and the mortgage bond in favour of Krishna Kumar were executed on the same date, but the trust deed was registered 15 days before the mortgage bond. From the trust deed it is also sufficiently clear that the khas lands (the whole of Ka lands is khas excepting .25 decimals) were made over to the trustees by all the Boses and the mortgage to Krishna Kumar was of properties other than the khas lands. From the judgment in the section 105 B. T. Act case it is clear that the Niskar Puran Khane Bati is treated as a separate property from the lands of the Osat Taluk and the Osat Taluk is assessed separately and the Puran Khane Bad described in Lot No. 8 is excluded from assessment. The sale certificate (Exh.9) shows that no Niskar land was sold or mortgaged. Only Mal lands were sold and the Lakeraj lands were not attracted by the sale certificate." On the same subject, the District Judge, Noakhali, in his judgment in Title Appeal No. 120 of 1945 Exh. 2 (e), which went in favour of Sreenath, made the following observation: ‑ "The plaintiff's case is that all the Boses had mortgaged the land of the Lakheraj to Krishna Kumar Day and the latter purchased the property on 19‑1‑32 in execution of his decree upon the mortgage. The title of all the Boses to this Lakheraj land had thus passed to Krishna Kumar Day under the above execution sale and they had none any title to the property subsisting after that. That they had none this any right to prosecute a partition suit in respect of this Lakheraj land after the above date and the whole proceeding in respect of this Lakheraj land should be regarded as collusive after the suit had been restored in 1940, for a final decree. On this last point, it does really appear that this Lakheraj land was indeed excluded from the mortgage in favour of Krishna Kumar Day. This will be apparent on a perusal of the document purported to be a deed of trust (Exh. N) and Krishna Kumar Day's sale certificate Exh. 9." In the High Court in Second Appeal No. 423 of 1946, the position taken on behalf of Sreenath in this regard was that the Lakheraj lands, i.e., the lands of Schedule 'Kha' of the present plaint were not mortgaged to Krishna Kumar Day. The observation of this Court in the judgment of the said Second Appeal Exh. 2 (a) is as follows: - "The fact that there was no previous partition among the co‑sharers is not challenged. It is also not disputed before this Court that the Lakheraj in question was not mortgaged to Krishna Kumar Day and as such the question of any extinction of interest due to the mortgage sale does not arise." This negatives the contention of Mr. D. C. Bhattacharya that the plaintiffs have no title to the lands of Schedule 'Ga' of the present plaint because of the alleged auction sale in execution of the mortgage decree obtained by Krishna Kumar Day. Even otherwise, when the decree passed in Partition Suit No. 326 of 1925 is binding on Sreenath, he cannot be permitted to deny the plaintiffs' title to the suit lands of Schedule 'Ga'. In spite of the final decree passed in the plaintiffs' favour in Partition Suit No. 326 of 19,45 as early as 13‑3‑1943, the defen dant Sreenath did not give up possession of the lands of Schedule 'Ga' which fell in the plaintiffs' allotment. When the partition decree is binding on Sreenath, he was under an obligation to give up possession of the lands of Schedule 'Ga' in favour of the plain tiffs even before the decree was put into execution. Far from giving up possession of the said lands, Sreenath embarked upon litigation by bringing Title Suit No. 52 of 1943 and thereby succeeded in deferring delivery of possession. As Sreenath's possession of the suit lands of Schedule 'Ga' was unauthorised throughout, the plaintiffs, as owners of the lands of that Schedule on the basis of the partition decree, are entitled to get compensation from Sreenath on account of the profits received by him from those lands. The question then arises as to the period for which the plaintiffs are entitled to mesna profits. This brings in the question of limitation, Mr. D. C. Bhattacharya submits that the suit for mesne profits is governed by Article 109 of the Second Schedule to the limitation Act and as such the plaintiffs in any case, are not entitled to mesne profits for any period exceeding three years preceding the date of the institution of the suit Mr. Asaduzzaman Khan, on the other hand, submits that when is Sreenath's Title Suit No. 52 of 1943 a temporary injunction against the present plaintiffs was issued on 14‑3‑1944 and when the execution of the partition decree was stayed by the orders of different Courts till 29‑5‑1956, the plaintiffs were not in a position to bring a suit for mesne profits and are, therefore, entitled to exclude the whole period from 14‑3‑1944 to 29‑5‑1956 in computing the period of limitation. This contention made on behalf of the plaintiffs during the trial of the suit was accepted by the trial Court in the following words "In the present case, I have already referred to above that the judgment passed by the District Judge in Title Appeal No. 120 of 1945 dated 24‑9‑45 debarred the plaintiffs from taking delivery of possession in Ga Schedule lands. Would the plaintiffs file any suit for the recovery of mesne profits, that suit would have been dis missed in the face of this judgment referred to above. The learned pleader for the defendant argued that Article 109 of the limitation bars the claim for a period antecedent to three years prior to the institution of the suit. His argument is that as this suit was instituted on 1‑10‑56 the plaintiffs are not entitled to mesne profits for a period (i) prior to 1‑10‑

53. The title of the plaintiffs was in suspense till the Federal Court judgment passed on 29‑5‑56 when for the first time they were placed in a position to assert and establish their right. It is thus clear that the right of the plaintiffs was kept in a state of suspended animation from 14‑3‑44 to 29‑5‑56 solely by reason of the opposition of the defendant. The plaintiffs could neither sue for recovery of possession nor for realisation of mesne profits inasmuch as the right to mesne profits is an appendix to right to possession. That being the position, I am constrained to hold that the time could not be taken to runt against the plaintiffs since 14‑3‑

43. In the result I find that the plaintiffs are entitled to recover mesne profits or compensation for the period from 14‑3‑44 to 29‑5‑56, i.e. about 12 years." In support of this view of the trial Court Mr. Asaduzzaman Khan has cited before us the case of Dwijendra Narayan Roy v. Joges Chandra De and others (39 C L J 40). The facts of the cited case, are quite different from these of the present case. In the cited case, four compulsorily registrable documents were executed on the 17th January 1913, but those were registered on the 22nd June 1918. After their registration, those deeds took effect retrospec tively from the date of their execution on the 17th January 1913. On these facts, it was observed in the cited case: ‑ "The position, consequently, is that though by virtue of sections 47 and 49 of the Indian Registration Act, the title of the plaintiff related back to the 17th January 1913, that title was in suspense as it were till the 22nd June 1918, when for the first time he was placed in a position to assert and establish his right. His right was kept in a state of suspended animation from the 17th January 1913, to the 22nd June 1918, solely by reason of the unfounded opposition of the defendant. He could neither sue for recovery of possession nor for realisation of mesne profits, inasmuch as the right to mesne profits is an appendage to the right to possession." In the present case, however, the plaintiffs' right to the suit lands of Schedule 'Ga' stood established with the passing of the final decree in the partition suit, and they became entitled to and were also in a position to claim compensation for every day of unauthorised occupation of those lands by Sreenath. While the final partition decree was passed on 13‑3‑1943, there was no order of temporary injunction against the plaintiffs until 14‑3‑1944. Even that injunction, as we shall presently show, was not one restraining the plaintiffs from bringing a suit for compensation or mesne profits. The stay order granted in the appeals arising out of Title Suit No. 52 of 1943 and also by the Federal Court did not prohibit the plaintiffs from bringing any suit for compen sation or mesne profits against the defendant. Therefore, the case reported in 39 C L J 40, in our opinion, is of no assistance to the plaintiffs and cannot be taken to be in support of the view taken by the trial Court. After the passing of the final decree in the partition suit on 13‑3‑1943, the cause of action for compensation accrued to the plaintiffs from day to day. The plaintiffs were, therefore required to bring a suit within the period of limitation prescribed by Article 109 of the Second Schedule of the Limitation Act, unless they were entitled to the benefit of section 15 of that Act. Section 15 of the Limitation Act runs thus: "(1) In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. (2) In computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded." Let us see if the requirements of the said section was complied with in this case. In Title Suit No. 52 of 1943 which was a suit for permanent injunction, a temporary injunction was sought for, but it was refused by the Court trying that suit. On appeal (Miscellaneous Appeal No. 94) the pray or for temporary injunction was allowed in the following terms, vide Exh. 2 (b) (Not printed); - "The appeal is thus allowed with costs. Pleader's fee Rs.

16. Let a temporary injunction issued restraining the defendants from executing the decree of the partition suit and interfering with the possession of the plaintiff in the disputed 'Kha' and 'Ga' schedule lands." By this order, the institution of a suit for compensation or mesne profits was not at all restrained. What, however, was restrained by this order was the execution of the decree in the partition suit and interference with the possession of the plaintiff of the said suit, namely, Sreenath. The stay order granted by this Court in Second Appeal No. 423 of 1946 as also the stay order granted by the Federal Court, as conceded by the learned Advocate for the plaintiffs, were only in regard to the execution of the partition decree, but had nothing to do with the institution of a suit for compensation or mesne profits. When the plaintiff were not debarred by any order of any Court from bringing a suit for compensation or mesne profits, they are not entitled to the benefit of section 15 of the Limitation Act. The application of We said section 15 was invoked in a case, via., Narayan Jivangounda Patii and another v. Puttabai and others (AIR 1945PC5) decided by the Judicial Committee of the Privy Council. In that case, the plaintiff filed a suit challenging the adoption of the defendant and for a declaration that ho was in possession and also for a permanent injunction restraining the defendant from dispossessing him. The plaintiff prayed for and obtained a temporary injunction to the above effect. The plaintiff succeeded in two Courts including the High Court, but the judgments of the two Courts were reversed by the Privy Council on appeal and the defendant's title to the lands was established. Thereafter the defendant brought a suit for recovery of possession of the lands, and this suit was brought beyond the statutory period of limitation of 12 years. That matter ultimately came before the Privy Council, and their Lordships, while giving interpretation of section 15 of the Limitation Act, held: - "The question whether in a particular case a party has been restrained by an injunction or order from instituting a suit must always depend for its decision upon the order, or the decree, made in the case. It appears to their Lordships there is nothing in the injunction or in the decree to support the contention that the appellant was prevented from instituting a suit for possession in 1920, or at any time before the expiry of the period of limitation. The various restraints imposed on the appellant by the decree cannot be made to mean by any process of interpretation that he is thereby prevented from instituting a suit for possession for the suit properties. It is not maintained that there is any express order restraining him from instituting such a suit. Mr. Parikh, the learned counsel for the respondents, said that the injunction or order relied upon, to be effective should contain an express prohibition, but it is not necessary to consider that point as their Lordships are satisfied that there is no prohibition, either express or even implied in the injunction or the decree in the present case, which restrains the appellant from instituting a suit for posses sion. Sir Thomas Strangman contended strongly that since the title of the contending parties was involved in the suit it would be quite futile to institute a suit for possession. Their Lord ships are unable to appreciate this point for the institution of a suit can never be said to be futile if it would thereby prevent the running of limitation. For the above reasons their Lordships hold that the appellant's suit was barred by limitation, and also that the appellants was not entitled to restitution and other reliefs claimed by him in his petition under section 144 and section 151, Civil P. C. The principle enunciated in the said Privy Council case applies equally to the present case inasmuch as the plaintiffs were not debarred at any time by any order of any Court from institut ing a suit for compensation or mesne profits. The plaintiffs are, not therefore, entitled to mesne profits for any period in excess of 3 years before the institution of the suit. In this connection, Mr. Asaduazaman Khan contended that in view of the temporary injunction and stay orders granted by different Courts in Title Suit No. 52 of 1943, it could not be said that the defendant Sreenath was in wrongful possession of the suit lands during the continuance in operation of the injunction and stay orders and as such the plaintiffs were not in a position to sue him for compensation for wrongful possession. It is difficult to accept this contention as sound for, the temporary injunction and the stay orders did not convert the possession of Sreenath lawful which was unlawful right from the time of the final partition decree. In fact, the plaintiffs themselves stated in the last part of para. 3 of their original plaint in Bangali that Sreenath having obtained a temporary injunction was wrongfully possessing the lands of Schedule 'Kha' As regards the quantum of compensation, it appears that a Pleader Commissioner was appointed by the trial Court during the pendency of the suit for the purpose of ascertaining mesne profits in respect of the lands of Schedule 'Ga'. The report of the Pleader Commissioner which forms part of the decree under appeal shows that the Pleader Commissioner went to the locality with notices to the parties, inspected the lands and examined witnesses. The defendant took time, but ultimately did not care to remain present at the time of the local enquiry. After taking various factors into consideration, the Pleader Commissioner reported that a sum of Rs. 1,465‑13 annas should be the mesne profits of the lands of Schedule 'Ga' for each year. We have looked into the evidence of the witnesses examined in this case with regard to the yield and price of crops. The defendant, as D. W. 1, did not utter a word about the yield per kani of land or price of crop D. W. 2 said that the yield per kani of land is 8 to 10 maunds of paddy and the price thereof is Rs. 10 to 12 per maund. D. W. 3 stated in his cross‑examination that he himself got 25 maunds of paddy from his two kants of lands. This means that the yield of paddy per kani is 12J maunds. On the basis of the evidence taken by him, the Pleader Commissioner took the yield at 15 maunds of paddy per kani and the price thereof at Rs. 10 per maund. As regards jute, the yield, accord ing to his report, is 15 maunds in each crop and the price thereof is Rs. 15 per maund. We do not think that the yield and the price taken by the Pleader Commissioner is anything on the high side. The plaintiffs, are, therefore, entitled to recover mesne profits for three years before the institution of the suit at the rate of Rs. 1,465 13‑0 per year, I.e. Rs. 4,397‑7 annas in all. 'In the result, we allow the appeal in part and pass a decree In plaintiffs' favour for Rs. 4,397‑7‑0 as compensation for the period of three years before the institution of the suit on 1‑10‑1956. The decree of the trial Court is modified accordingly. The plaintiffs shall get proportionate costs throughout. MAKSUM‑UL‑HAKIM, J.‑I agree. A. H. Appeal allowed in part.