Judgment M. P. Singh, J. 1. This appeal by the defendants from a final decree of the Additional Subordinate Judge, Begusarai, of 9th March, 1968 is solely concerned with the question of ascertainment of mesue profits. The profits consist of the produce from 4 Bigha 10 Kathas of land. The point raised for determination in this appeal is as to the basis upon which mesne profits should be determined. The plaintiffs-respondent claimed mesne profits for 15 years from 1349 to 1363 Falsi. claiming Bhadai and Rabhi crops. They claimed maize as Bhadai crops for the year 1353 Fasli. and wheat, sugar-cane, Rahar, Mirchai, andi and Alua as Rabbi crops for different years. What was claimed only for three years, 1349, 1350 and 1353 Fasli. Sugarcane was claimed for five years, namely, 1351, 1352 and 1358 to 1360 Fasli. Rahar for two years 1355 and 1357 falsi; Mirchai and Andi for 1361 Fs. and Alua for two years 1356 and 1363 falsi. The total amount claimed after deduction of the cost of cultivation was Rs.77,054.25 in respect of both the Bhadai and Rabbi crops. 2. The learned Munsif Ist, Begusarai rejected the claim of the plaintiffs for Bhadai (maise) crops. He also disallowed the claim for Mirchai, Andi and sugarcane. He, however, allowed wheat (i ) for the years claimed (1349, 1350 and 1363 Fs) and (ii) also for 10 years more for which there was no claim. This was given on the ground that the land was capable of producing wheat according to the report of the Pleader Commissioner. He rejected the case of the defendants to the effect that the land produced only Jao-kerai every year. On appeal the learned Additional Subordinate Judge, Begusarai affirmed all the findings of the learned Munsif and he proceeded on the following basis as stated by himself in paragraph 28 of his judgment: - "it is now well-settled that mesne profits are allowed for the best crops grown in the year and in absence of that, the rightful owner is entitled to the best produce which a man in wrongful possession could have produced with due diligence as a prudent cultivator. . . . . . . . . " 3. . . . . . . . . " 3. The questions canvassed in this court are as to whether mesne profits have been Correctly determined (i) as to the defendants liability from the date of dispossession (16.4.1941) the date of the finding of the suit (17.3.1944) the same not having been mentioned in the preliminary decree for that period ; (ii) as to the plaintiffs right to obtain a decree for wheat for the period of 10 years for which no claim was made by them in the plaint or in evidence ; (iii) as to the quantity of produce of Alua allowed by the courts to the full extent of the claim at the rate of 900 maunds per year ignoring the report of the Pleader Commission who had allowed only 2/3rd of the claim, that is, at the rate of 600 maunds for each year ; (iv) as to the grant of interest not mentioned in the preliminary decree, though claimed in the plaint ; and lastly (v) as to the rate of produce and sale rate by ignoring the real evidence on record. 4. Mesne profits are defined in section 2 (12) of the Civil Procedure code as "these profits which the person in wrongful possession of such property actually received or might, with ordinary diligence, have received therefrom, together with interest of such profits, but shall not include profits due to improvements made by the person in wrongful possession". 5. It is quite clear that on the terms of this definition of mesne profits, the plaintiffs are entitled to (i) those profits which the person in wrongful possession of such property actually received :or (ii) in absence of that which the person in wrongful possession might with ordinary diligence have received therefrom, together with interest thereon and in such cases, as held in Secretary of State V/s. Saroj Kumar, (AIR 1935 P. C.49) : ". . . . . . . . What the plaintiffs have to show is that with reasonable diligence, ". . . . . mote might have been realised than was actually realised in the way of profits. . . . . . . . . As to what amounts to due diligence the person in wrongful possession is not liable for failure to realise the highest possible rates of rent and premium from the tenants. . . . . mote might have been realised than was actually realised in the way of profits. . . . . . . . . As to what amounts to due diligence the person in wrongful possession is not liable for failure to realise the highest possible rates of rent and premium from the tenants. It is enough if taking account of both rent and premium, if any, a fair return has been realised from the land, and their lordships will deal with the case on that basis in considering whether the plaintifis have shown that there has been a want of reasonable diligence on the part of the defendant". In that case the profits of land consisted of rent and Salami. The principles enunciated therein, however, will apply to the case of produce from agricultural land also. Reference may also be made to the case of E. . Dalgleisti and others v Nandan Missir and others, (AIR.1917 Pat 421 ). In that case the decree-holder had offered no evidence as to whether his cultivation of tobacco and chillies was more profitable to him or not. It was held that the learned subordinate Judge was wrong in awarding a large sum on account of tobacco and chilli cultivation. In the present case the courts below have not determined the question as to whether the plaintiffs showed want of reasonable diligence on the part of defendants in not growing wheat crops. They have held them liable simply because the land was capable of growing wheat crop. The approach thus, was wrong. Learned counsel for the appellants submitted that the plaintiffs adduced positive evidence to the effect that the defendants had grown particular crops in particular years and did not give any evidence that the defendants as ordinary prudent agriculturist would have grown wheat in those years for which wheat was awarded to them. It was urged that the onus was on the plaintiffs to prove it and in absence of the same, the courts below should have awarded mesne profits on the basis of crops actually grown by the defendants as provided in the first part of the definition of "mesne profits" In my opinion, counsel is right on this point. I have already referred to the principles enunciated in Secretary of State V/s. Saroj Kumar, AIR 1935 privy council 49 (supra ). I have already referred to the principles enunciated in Secretary of State V/s. Saroj Kumar, AIR 1935 privy council 49 (supra ). According to that decision, it is for the plaintiffs to show that with reasonable diligence the person in wrongful possession Would have cultivated more profitable crops. The two courts below have not dis:ussed the evidence on record from this point of view. They simply axepted the report of the pleader commissioner to the effect that the land was capable of growing wheat It is not char from the judgment of any of the courts below as to whether there is any oral evidence on the record even to show that the land was capable of growing wheat in each of the years for which no claim was made by the plaintiffs. In the circumstances the case will have to be sent back to the learned Additional Subordinate Judge for a fresh decision for ascertainment of mesne profits. 6. Learned counsel appearing for the plaintiff-respondents cited three decisions, namely, (1) E. Dalgleish and others V/s. Nandan Misser and others atr 1917 Pat 421, (2) Harry Kempson Grav and another V/s. Bhagu Mian and others, AIR 1930 Privy Council 82: (1929-30) XXXVI. Calcutta Weekly Notes 257 ilr 9 Pat 621 (PC) and (3) Jagannath Prasad and others V/s. Badiul Mulk khan and others, AIR 1954 Pat 447 . In my opinion these cases do not help the plaintiff-respondents. According to all thes cases, the criterion for calculation of mesne profits is that mesne profits, can only consist of what the person in wrongful possession of such property actually received or might with ordinarily diligence have received therefrom. In the Patna case (AIR 1917 Pat 421) it was further pointed out that there is a second principle for assessment of mesne profits. The second principle is that in determining the question of mesne profits the court should aim at doing justice between the parties having regard to all the circumstances of the case, the object being to see that the person wrongfully kept out of possession is put in the same position financially as if right had been done. This principle had been enunciated long ago by the Judicial Committee in Girish Chunder V/s. Shoshi, (1900) ILR 27 Cal 951 : 27 IA 110. This principle had been enunciated long ago by the Judicial Committee in Girish Chunder V/s. Shoshi, (1900) ILR 27 Cal 951 : 27 IA 110. While appreciating that the Code of 1882 introduced the words "interest on those profits" in the definition of mesne profits, it was observed in that case that, as mesne profits were in the nature of damages, the court might refuse interest in moulding a decree according to the justice of the case. It is clear from this case that there can be no rigid rule for determining the amount of mesne profits and the amount must be assessed in every case by a proper exercise of judicial discretion. It would depend upon the circumstances of each case, as for example, the court can refuse interest in a particular case or it can give less than six per cent per annum. The rate must depend upon a variety of circumstances. In the present case the court below has not kept in mind the second principle in calculating mesne profits. In the Privy Council case (AIR 1930 PC 82) the appellants were owners of an indigo factory and had utilised the lands in growing indigo for the special purposes of the factory. It was contended on behalf of the appellant that the actual cultivation having been in Indigo, the indigo profits only should have been allowed. The contention was repelled. It was observed that the growing of indigo was for the special purposes of the appellants Who were owners of the adjacent factory and that an ordinary farmer would have grown the other more profitable crops for which the land was admittedly adapted. Their Lordships said that in all such cases the true test must be what the ordinary prudent agriculturist would have grown. It is clear that the Privy Council case was decided upon its own facts and circumstances. In the present case the defendant-appellants did not cultivate the land for any special purposes. It is not suggested that they did not cultivate the lands in question as ordinary prudent farmers. This case, therefore, is not of any assistance to the respondents. 7. It is clear that the Privy Council case was decided upon its own facts and circumstances. In the present case the defendant-appellants did not cultivate the land for any special purposes. It is not suggested that they did not cultivate the lands in question as ordinary prudent farmers. This case, therefore, is not of any assistance to the respondents. 7. Counsel for the respondents relied upon the case of Jagannath Prasad, air 1954 Pat 447 for the purpose of showing that the claim of the plaintiffs for mesne profits should not be treated as a decisive circumstance and that it was open to the courts to award more mesne profits than claimed by the plaintiffs. The following observation made in that case was relied upon : "it might well be that the plaintiff deliberately claimed mesne profits at a low rate for the purpose of avoiding payment of court fee. The real test to be applied is what an ordinary prudent agriculturist would have grown on the land in dispute for the years. " As already stated the principles for assessment of mesne profits laid down in this case cannot be disputed. The difficulty in the present case, however, is that the principles for assessment of mesne profits have not been correctly applied by the two courts below to the facts of the present case. On behalf of the appellants it was brought to the notice of this Court that the suit was valued by the plaintiffs at Rs.970.50 only but the amount of mesne profit claimed was Rs.77,054.25 and that the courts below allowed mesne profits for Rs.20,848. Counsel for the appellants also submitted that although the lower appellate court held in paragraph 30 of its judgment that the plaintiffs were not entitled to the amount of mesne profits from the date of dispossession up to the date of filing of the suit, it awarded mesne profits to the plaintiff-respondents for that period simply on the ground that no such objection was taken by the appellants before the Munsif or in the grounds of appeal. In the view which I have taken of matters because the case is being remanded and all these matters can be placed before the court below for consideration. In the view which I have taken of matters because the case is being remanded and all these matters can be placed before the court below for consideration. On a consideration of the submissions raised on behalf of the parties, I am of opinion that the courts below have not correctly applied the principles in calculating mesne profits. However, 1 do not feel it necessary to set aside the judgment of the trial court because the errors committed by it can be corrected by the court of appeal below. 8 In the result the judgment and decree passed by the learned Additional subordinate Judge, Begusarai dated 9 March, 1968 are set aside, the appeal is allowed and the case is sent back to him for fresh decision in accordance with law and in the light of the observations made above. No costs. Appeal allowed.