the 11th January 1839, plaintiff was at liberty to include mesne
profits in her suit for right or to sue separately; secondly, that
as the date of the institution of the suit for the recovery of
possession of the land on which the wasilat has accrued, must
be considered to be that on which a possession adverse to
plaintiff was taken up by the defendant, plaintiff is entitled to
mesne profits from that date and interest from the date of the
institution of the suit.

Held by the Court that the present suit is not barred by Section
XVI. Regulation III. of 1793, inasmuch as though the words
mesne profits occur in the plaint in the suit for possession, still,
in the final decision of that case, the question of mesne profits
was specially reserved, as was the practice in cases instituted
before 11th January 1839, consequently, as there was no ad-
judication on plaintiff's present claim in that case, the law above
cited is not applicable te the present suit.

Held also that the suit is not barred by the operation of the Circular
Order of 11th January 1839, inasmuch as this suit was insti-
tuted six years before the date of that Circular, and Circular
Orders or bye-laws are not retrospective, but the law of pro-
cedure in force when the action was commenced must govern
the case according to which a separate suit to mesne profits
was admissible.

Held generally that the period from which mesne profits should
be granted must be determined by the nature of the possession
of the opposite party whether it be a bona fide possession or
not; that is, a possession without knowledge on the part of the
possessor of the defect of his own title. If a party have bonâ
fide possession of land in the above sense, he is not liable to the
legitimate owner for mesne profits; immediately however he
has notice of the defect in his title, either by the institution of
a suit in court for the recovery of the land and another party
claiming it is his own or in any other way, he ceases to be a
bona fide possessor. If he be from the first a wrongful and an
adverse possessor, he is of course liable for mesne profits from
the date of the act placing him in the position of a wrong-doer
before the law.

Held that, as the defendant in this suit acquired possession of the
chur upon which the mesne profits are claimed, and which
partly adjoined to his own and partly to plaintiff's estate on its
first accretion, and as no party came forward to disturb his
occupation so obtained or to claim the land in his possession
until plaintiff instituted her suit for possession, the occupation so
acquired by defendant was a bona fide possession and remained
such until that suit was instituted, when, looking to result of
that suit, it became a wrongful and adverse possession.
Held consequently, in accordance with the decision of the judge,
that plaintiff is entitled to mesne profits at the rate of
rupees 9-2 per beegah from the date of institution of the suit
for possession, viz. 2nd September 1833, or 1240 B. E., with in-
terest from the date of suit, at the rate of 12 per cent. per annum,
provided that the yearly sum does not exceed Sicca rupees 592
as claimed by plaintiff. As bowever the Court cannot determine

the quantity of land upon which the mesne profis should be
awarded until the mofussil enquiry directed to be made in another
case be completed, this case is remitted to the judge, in order
that, after the quantity of land included within the boundaries
of the decree of March 1841 be ascertained, he apply the rules
as to mesne profits which have been laid down in this judg-

ment.

The appeal of Ranee Surnomoye is dismissed, and the appeal of
Pertabchand Burrooa decreed and remanded accordingly as
above indicated,

6. Under the peculiar circumstances described, claim to wasilat
thrown out,

7. The order of the lower court was modified as to wasilat by
consent of respondent's pleaders,

8. A decree having provided for calculation of wasilat after
mofussil enquiry, held that the jumma recited in a certain lease
would not supersede the necessity of such inquiry, although it
might be useful in testing the results of such inquiry.

See Limitation, No. 33. -

Putnee, No. 2.

512-513

729

1092

1924

The lower courts dismissed a suit, as brought within the year
from date of notification to claimants of intestate property,
whereas it should have been deferred for a year after its date.
Held that, as the claim was founded on a will, postponement
of suit for a year was not necessary,

ZEMINDAR,

See Agent and Principal, No. 2.

1171

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