JUDGMENT 1. In the year 1894, the Appellants, the Dutta Chowdhurys, instituted in the Court of the Subordinate Judge of Khulna a suit for declaration of title to and recovery of possession of a three-eighths share of a chuck known as Biluarnia in Pergunnah Belfulia. They alleged dispossession by the joint action of three sets of Defendants-the Rays, Biswases and Ray Chowdhurys. The Ray Chowdhurys (Defendants Nos. 7 to 23) were the proprietors of Pergunnah Hogla which included the remaining five-eighths share of Biluarnia. The Rays and Biswases were gantidars or permanent lessees under two different leases from the Ray Chowdhurys. On the 8th March 1897, the Dutta Chowdhurys obtained a decree against the Defendants which declared their right to a six annas or three-eighths share of Biluarnia according to a map prepared by a Civil Court amin deputed during the course of the suit to make a local investigation and prepare a map of the locality and of the disputed land. The decree also directed the recovery by the Dutta Chowdhurys of the joint possession of the said share with the Ray Chowdhurys or their tenants, the Rays and Biswases, and also mesne profits from the date of dispossession (Magh 1300, B. S.) till the date of recovery of possession. On the 16th August 1899, the decree made by the Subordinate Judge was affirmed by the High Court. On the 26th August 1901, the Dutta Chowdhurys obtained possession by execution of the decree and they then asked for the determination of mesne profits in accordance with the decree. The Civil Court amin deputed to make an enquiry as to the amount of mesne profits recoverable by the Dutta Chowdhurys came to the conclusion that the amount was Rs. 10,177-11-1 pie plus Rs. 3,732 3-11 as interest, i.e., the total sum of Rs. 13,909-15. He rejected the books of account and the zamindari papers filed by the Defendants as unreliable and defective and based his conclusion on an estimate of the income of the Ray and Biswas Defendants, from the quantity of cultivated land and the rates of rent as given by the witnesses examined on behalf of the Dutta Chowdhurys. 13,909-15. He rejected the books of account and the zamindari papers filed by the Defendants as unreliable and defective and based his conclusion on an estimate of the income of the Ray and Biswas Defendants, from the quantity of cultivated land and the rates of rent as given by the witnesses examined on behalf of the Dutta Chowdhurys. The Defendants raised various objections to the report of the Civil Court amin but their main contention was that the Dutta Chowdhurys were entitled to no more as mesne profits than the amount which their co-sharers, the Ray Chowdhury Defendants, did actually realise from the tenant Defendants with respect to a three-eighths share. 2. The lower Court accepted the contention of the Defendants and accordingly passed a decree for Rs. 713 only. 3. The main contention before us relates to the principle of assessment of mesne profits. It is indisputable that the Dutta Chowdhurys obtained a decree for recovery of khas joint possession and mesne profits against all the Defendants, the proprietor as well as the lessee Defendants. This is clear from the finding on the nth issue raised in the suit and the nature of possession which has without objection been actually delivered by the Court. The Ray and the Biswas Defendants were held to be trespassers in the same way as the Ray Chowdhury Defendants. The decree made no practical distinction between them and we cannot but read it as one directing recovery of mesne profits from all the Defendants jointly and severally. In fact the Rays and Biswases were found to be tenure holders and middlemen and were as much wrong-doers in the eye of law as their lessors. They could not rely on a statutory title as taiyats cultivating the soil. The finding of the lower Court on the nth issue raised in the suit was not questioned in the appeal to this Court. The decree was, therefore, one for the ejectment of all the Defendants as far as a three-eighths share was concerned and the recovery of mesne profits in accordance with the directions in the decree. 4. If the Ray Chowdhurys were the only Defendants in the suit, the measure of damages might have been the amount actually realised by them from their lessees, and nothing could have been fairly urged against the assessment made by the lower Court. 4. If the Ray Chowdhurys were the only Defendants in the suit, the measure of damages might have been the amount actually realised by them from their lessees, and nothing could have been fairly urged against the assessment made by the lower Court. But they were not the only persons held to have been wrong-doers. Their lessees, the Rays and the Biswases were also guilty of tortious conduct and so far as they were concerned they were liable for the profits they had received or could with ordinary diligence have received from the raiyats in occupation. 5. The CPC (Explanation to sec. 211) defines mesne profits. They " mean those profits which the person in wrongful possession... actually received or might with ordinary diligence have received together with interest on such profits." If, as found in the suit, the Rays and Biswases were in wrongful possession they were bound to make over to the rightful owners the profits they actually received or might with ordinary diligence have received from the share in suit. Mesne profits are damages for trespass or wrongful occupation of land and it may be brought against the person actually in possession though only a tenant, and in this case the decree in the suit directs that the landlords and tenants are equally liable. The Rays and the Biswases are, therefore, liable to make over to the Appellants the profits they actually received or might with ordinary diligence have received during the period of their wrongful occupation. It is no answer to the claim for mesne profits, after the decree in ejectment, that the settlement with them (the Rays and Biswases) was made in due course of practice in the locality and that they were therefore protected. Such a defence was, in fact raised in the suit and protection from ejectment was claimed on such or a similar ground; but the Court did not listen to it. Even if such a ground were not distinctly taken in the suit before decree, it might and should have been taken if there was any substance in it and the Court would then have considered whether the Rays or Biswases could be protected from eviction and payment of damages on the ground now set up and attempted to be proved by the deposition of Raj Kishore Chatterjee. If Bil mehals in Pergunnah Belfulia are always settled with gantidars and the settlements made by the Ray Chowdhurys were fair and reasonable and in accordance with established usage, the decree in ejectment and for recovery of damages is erroneous, but such a defence is now obviously incompetent. 6. The lower Court relies on the statement of Raj Kishore Chatterjee but giving it the fullest weight and assuming that the statement may now be taken into consideration in judging the question of the liability of the Ray and Biswas Defendants, we do not think the statement goes far enough. It is also unsupported by any other evidence. We cannot find from this statement only that any invariable usage or established practice has been proved which would exonerate these Defendants from liability either as to ejectment or mesne profits. 7. The Court executing the decree is bound to give full effect to it and mesne profits must be assessed on the basis of the profits which the judgment-debtors did realise or could with ordinary diligence have realised. 8. It has been contended by Mr. Pugh on behalf of the Repondents that the Appellants are entitled to a decree for such a sum only as they themselves might have realised if they were in possession. The argument assumes that mesne profits must be regulated not by what profits the wrong-doer received or might with ordinary diligence have received but by what the rightful owner was receiving before wrongful eviction, or what he could have received under ordinary circumstances if he was not wrongfully evicted. Authorities for such a view have also been cited before us. But the facts of those cases are distinguishable and we cannot go behind the words of the law as laid down in the Code. In the present case we have every reason to suppose that the Appellants could have realised the same profits as the Rays and the Biswases did or could have realised with the exercise of ordinary diligence. There is, at least, nothing on the record to induce us to come to a different conclusion. The Appellants are admittedly wealthy landlords with sufficient resources at their command, and we do not see why they could not have effected the same improvements as the Rays and the Biswases did. There is, at least, nothing on the record to induce us to come to a different conclusion. The Appellants are admittedly wealthy landlords with sufficient resources at their command, and we do not see why they could not have effected the same improvements as the Rays and the Biswases did. But irrespective of the question of the means and ability to effect improvements and thereby to obtain higher profits, the law-makes every presumption against wrongdoers and a wrong-doer cannot plead his own means and resources as against the rightful owner in abatement of the wrong and thereby reduce the amount of compensation payable by him. The law is imperative-the person guilty of a tortious act must disgorge whatever he received by virtue of occupation by such an act and more if he was further guilty of laches and negligence in the management of the property in his wrongful occupation. We cannot, therefore, accept Mr. Pugh's contention as sound. 9. So far as the Ray and the Biswas Defendants are concerned, mesne profits must be assessed on a principle other than the one adopted by the lower Court. The true principle is laid down in the Code and the Civil Court amin acted according to it. But there were objections to the report of the amin which were not considered by the lower Court and we cannot express any opinion on the correctness or otherwise of the report without considering the objections to it. Prima facie the amount found by the amin to be payable as mesne profits is unduly high having regard to the claim in the plaint and the nature of the land as it was before the suit. 10. We are also of opinion that the condition of the land was such before the exclusive occupation by the Defendants that it is fair and reasonable that the Defendants should be allowed to mitigate damages by setting off not only the sums spent by them annually in the construction of embankments and other works necessary for reclaiming the land and making it fit for cultivation and to protect it from floods, etc., but also the value of the permanent improvements made by them. Dr. Rash Behary Ghosh on behalf of the Appellants has very frankly conceded that such allowances should be made. Dr. Rash Behary Ghosh on behalf of the Appellants has very frankly conceded that such allowances should be made. In estimating the mesne profits for every year of the occupation of the Defendants, allowance should be made for the necessary expenses incurred by the Defendants for bond fide improvements and protective works. The parties are co-sharers and the Defendants have the larger share and we think under the peculiar circumstances of the case that such a course is the most equitable. 11. The only other matter that requires discussion is the one relating to the measure of the liability of the Ray Chowdhury Defendants. They are admittedly liable for the profits they actually received in respect of the three-eighths share of the Appellants. Are they liable jointly with the other Defendants for the profits actually made or which could be made with ordinary diligence by the latter ? They were in the eye of the law joint wrongdoers, they were treated as such in the suit and the decree was joint and several against them all. 12. It is settled law that where more persons than one are concerned in the commission of a wrong, the wronged person has his remedy against all or any one or more of them at his choice. Every wrong-doer is liable for the whole damage and it does not matter whether they acted as between themselves as equals or one of them as agent or lessee of another (Pollock on Torts, 7th Ed., 194). In Mudan Mohan Singh v. Ram Das Chuckerbutty 6 C. L. R. 357 (1880), the joint liability of the lessor as well as the lessee for mesne profits was affirmed. The liability of all the Defendants was so affirmed by the decree in this case. 13. The proceedings in the suit were commenced in 1894 and the proceedings in execution began in 1900 and if we were to remand the case to the lower Court for ascertaining the amount of mesne profits in accordance with the view we have expressed above, it will take again a long time to terminate the litigation. The evidence on the record is almost complete and in fact the parties declined in the lower Court to adduce further evidence. The evidence on the record is almost complete and in fact the parties declined in the lower Court to adduce further evidence. The enquiry which we intend to direct may satisfactorily be made by a Commissioner appointed by us in this Court who should submit his report within a limited time. 14. We therefore direct a Commission to issue for enquiry on the following points, viz.: 1. What is the amount actually realised by the Defendants or any of them from the raiyats in occupation or as rent of falkar or bankar, etc., during the period from Magh 1300 to Sravan 1308 ? 2. What profits, if any, were actually received by the Defendants or any of them from khas cultivation during the above period ? 3. What further profits, if any, the Defendants or any of them could have received by the exercise of ordinary diligence during the above period ? 4. What amount was annually spent by the Defendants or any of them for embankments, khals, etc., for the reclamation of the land and for protective works during the said period ? 5. What amount, if any, was spent by the Defendants or any of them for permanent improvements during the said period ? 6. What amount, if any, was paid by the Defendants or any of them during the period on account of cesses and expenses of management ? 15. The Commissioner is empowered to admit additional evidence to enable him to come to definite conclusions on the above points and is directed to draw up an account showing the final result of the enquiry in accordance with the directions contained in the decree in the suit and this judgment. [The appeal was finally decided upon a compromise. The order which was passed thereon, dated the 25th March 1907, was as follows: Maclean, C.J. (FLETCHER, J., concurring).- Order by consent that the decree of the lower Court be set aside and in lieu thereof a decree be entered in favour of the decree-holders, Appellants, for the aggregate sum of Rs. 4,634-5-1949 pie, being the amount of mesne profits and interest, as ascertained by the Commissioner, with further interest thereon at the rate of six per cent, per annum from this date until realization; and order further that each party do recover costs in proportion to their success in this Court. 4,634-5-1949 pie, being the amount of mesne profits and interest, as ascertained by the Commissioner, with further interest thereon at the rate of six per cent, per annum from this date until realization; and order further that each party do recover costs in proportion to their success in this Court. We assess the hearing fee at five gold mohurs for the whole appeal. No order need be passed in the other appeal.]