Sharf-ud-din Khan vs Fatehyab Khan

John Edge, C.J. and Burkitt J.

This appeal arises out of an assessment of mesne profits. The appellant complains, firstly, that he was deprived of the benefit of evidence in the suit which was on the record in the High Court at the time when the mesne profits were being assessed. In order to support that ground, it would be necessary to show that the evidence he desired to have was material. He has not taken the trouble to procure the production of that record here, and he has failed to prove that one word of that evidence was material. He also complains that in taking the account for mesne profits he was allowed an insufficient sum for expenses. His claim for expenses was made up of, amongst other things, a claim for the salary of two karindas. That portion of the claim alone would have brought the expenses on the amount collected to something near 12 per cent., an allowance which we could never sanction in favour of a wrong-doer. It would be excessive in any case. However, his main complaint as to expenses relates to the fact that he was disallowed the expenses he was put to in suing tenants on the estates, who were not his tenants, who owed him no rent, but against whom he obtained decrees for rent. The result shows that the appellant was never entitled to those decrees. He was a wrong-doer. He was not entitled to the possession of the land, nor was he entitled to the receipt of rents and profits. It may well be, and certainly the contrary has not been shown, that if the decree-holder, the rightful owner, had not been disturbed in possession by the appellant and had been in possession, all his tenants would have paid their rents and there would have been no necessity for a single suit against any of them. Expenses of decrees for rent obtained under such circumstances by a wrong-doer who is not entitled to them certainly cannot be allowed to him in the assessment of mesne profits. We dismiss this appeal.