JUDGMENT 1. This is an appeal at the instance of defendants 12 and 13 in O.S.No.144 of 1973, Sub-Court, Mayuram, against the final decree for mesne profits passed in I.A.No.616 of 1977 in O.S.No.144 of 1973 determining the liability of the appellants for mesne profits in a sum of Rs.30,000 for the period from 1.8.1972 to 22.10.1977, on an application taken out in that regard by respondents 1 and 2 in this appeal, who figured as the plaintiffs in O.S.No.144 of 1973. 2. In order to appreciate the controversy between the parties to this appeal, it would be necessary to briefly set out the facts. A and B schedule properties in O.S.No.144 of 1973, with which this appeal is concerned, belonged to one Natesa Iyer, who died in 1948. He had a son of the name of Krishnamurthy and two daughters Rajammal alias Rajalakshmi and Manga-lambal, the second plaintiff in O.S.No.144 of 1973. One Rajambal is the wife of Krishnamurthy and she is the first plaintiff in O.S.No.144 of 1973. On 19.1.1939, Natesa Iyer executed a Will in relation to A and B schedule properties. Under that will, Natesa Iyer bequeathed a life interest to his son Krishnamurthy in relation to A and B schedule properties and it was also further provided that after the lifetime of Krishnamurthy, the children of Krishnamurthy and Rajambal, male and female, should take the properties. A further provision was also made that in the event of Krishnamurthy and Rajambal not having any children, A schedule properties should be taken by Rajambal and B Schedule properties should be taken by Rajammal alias Rajalakshmi and after the death of Rajammal alias Rajalakshmi, Mangalambal, the second plaintiff in O.S.No.144 of 197 3, should take B schedule properties. There is no dispute that on the death of Natesa Iyer, the provisions in his will as aforesaid took effect. Though Krishnamurthy, under the terms of the Will of Natesa Iyer, was entitled only to a life interest in the properties bequeathed in his favour, yet, he purported to sell the properties to the first appellant herein under a sale deed dated 5.8.1950. The extent so sold was 20.70 acres. Krishnamurthy and Rajambal did not have any children. Krishnamurthy and Rajammal alias Rajalakshmi died on 1.8.1972. In accordance with the terms of the Will of Natesa Iyer, Rajambal and Mangalambal, became entitled to A and B schedule’ properties. The extent so sold was 20.70 acres. Krishnamurthy and Rajambal did not have any children. Krishnamurthy and Rajammal alias Rajalakshmi died on 1.8.1972. In accordance with the terms of the Will of Natesa Iyer, Rajambal and Mangalambal, became entitled to A and B schedule’ properties. Therefore, they instituted O.S.No.144 of 1973 praying for recovery of possession of A and B schedule properties in that suit with past and future mesne profits. Several persons in possession of the properties inclusive of the appellants in this appeal were impleaded as defendants. It would suffice for purposes of this appeal to notice only one of the several defences raised by the appellants herein. They claimed that they were not in possession of any of the properties as they had sold the same to various persons for valuable consideration and the alienees were in possession. Issue No.3 in the suit related to the question whether the first appellant herein was a bona fide purchaser for value. The Court found that the first appellant herein had purchased the properties from Krishnamurthy being fully aware of an insurance policy without paying anything in cash and that none of the alienees had purchased the properties in good faith. Dealing with the issue relating to the plea of adverse possession raised by the appellants herein which formed the subject-matter of issue No.15, the Could held that the rights of the plaintiffs in the suit would not in any manner be affected. On the question of mesne profits, it was found that some defendants are in possession of certain lands and some others in possession of certain other lands and, therefore, the quantum of mesne profits, past and future, should be relegated to a separate proceeding under Order 20 , Rule 12 , Code of Civil Procedure, Ultimately, on 24.2.1977, a decree for recovery of possession of A schedule properties was passed in favour of the first plaintiff in the suit and a similar decree for recovery of B schedule properties was granted in favour of the second plaintiff, the quantum of mesne profits being relegated to proceedings under Order 20 , Rule 12, Code of Civil Procedure. Thereafter, on 22.10.1977, the plaintiffs in O.S.No.144 of 1973 filed I.A.N0.616 of 1977 for ascertainment of mesne profits from A and B schedule properties payable by the defendants in O.S.No.144 of 197 3 for the period from 1.8.1972 to 22.10.1977. Thereafter, on 22.10.1977, the plaintiffs in O.S.No.144 of 1973 filed I.A.N0.616 of 1977 for ascertainment of mesne profits from A and B schedule properties payable by the defendants in O.S.No.144 of 197 3 for the period from 1.8.1972 to 22.10.1977. Against the decree and judgment in O.S.No.144 of 1973, defendants 1 and 2 therein preferred an appeal in A.S.No.661 of 1977, while, the appellants herein filed A.S.No.632 of 1977 before, this Court. The appellants also moved for and obtained stay, though subject to certain conditions. Both the appeals were dismissed on 30.6.1982 by this Court. While disposing of A.S.No.632 of 1977, this Court noticed the contention raised on behalf of the appellants herein that they had subsequently sold the properties purchased by them and no decree for mesne profits could be passed against them and stated that such a contention has to be agitated in the course of proceedings arising under Or.20, R.12, Code of Civil Procedure. 3. In the affidavit filed in support of I.A.N0.616 of 1977, the plaintiffs in O.S.No.144 of 1973 stated that though they had claimed Rs.5,400 and Rs.9,500 as past profits in respect of A and B schedule properties, the yield from those lands, which are double crop wet lands, would be not less than 12 kalams per mah and the defendants are liable to pay mesne profits from 1.8.1972 at that rate till 21.10.1977. It was also stated that in respect of an extent of 15.52 acres, defendants 1 and 2 in the suit had agreed to deliver 400 kalams of paddy. With reference to the appellants herein, the plaintiffs in O.S.No.144 of 1973 stated that the yield from the lands in their possession” would also be 12 kalams per mah as admitted by the village Karnam and the mesne profits should be determined on this basis. In the counter filed by the first appellant herein, which was adopted by the second appellant, while admitting the purchase of 20 acres and his liability to account, it was stated that many items had been sold to third parties. An objection was also raised that the application for determining the mesne profits during the pendency of the appeals A.S.Nos.661 and 632 of 1977 was not maintainable. 4. A Commissioner was appointed and documents on both sides were marked, in addition to the examination of witnesses. An objection was also raised that the application for determining the mesne profits during the pendency of the appeals A.S.Nos.661 and 632 of 1977 was not maintainable. 4. A Commissioner was appointed and documents on both sides were marked, in addition to the examination of witnesses. With reference to the 20 and odd acres purchased by the first appellant, the Commissioner took the view that as the plaintiffs in O.S.No.144 of 1973 had not filed any reply statement repudiating the stand of the appellants that they had sold the properties purchased by them to others and as the memo filed by the Advocate for the plaintiffs showed that the first appellant herein was in possession of 44 cents in R.S.No.100 and that was admitted by P.W.4 as not being * in the possession of the first appellant, the appellants are not in wrongful possession and, therefore, not liable to pay any mesne profits. However, when the matter came to be dealt with by the Court, the learned Subordinate Judge relied upon the circumstance that only the appellants had preferred A.S.No.632 of 1977 before this Court and not the alienees to conclude that the appellants alone were in possession of the properties and prevented the plaintiffs from taking possession of the properties and that they were in wrongful possession. It was also further held that even assuming that the appellants were not in possession, under law, they were bound to pay mesne profits as they prevented the plaintiffs from taking possession. Accordingly, the appellants were held liable to pay mesne profits. Regarding the quantum of yield from the lands, the learned Subordinate Judge fixed 300 kalams of paddy per year as the net income from the lands in the possession of the appellants. Proceeding to fix the amount of mesne profits, the Court below adopted the price of Rs.20 per kalam and for a period of five years from 1972 to 1977 and fixed the mesne profits in a sum of Rs.30,000 at the rate of Rs.6,000 per annum. It is the correctness of this that is challenged by the appellants in this appeal, while, the plaintiffs in O.S.No.144 of 1973 have preferred the Memorandum of Cross-objections claiming that a further sum of Rs.20,000 should have been awarded by the Court below by way of mesne profits. 5. It is the correctness of this that is challenged by the appellants in this appeal, while, the plaintiffs in O.S.No.144 of 1973 have preferred the Memorandum of Cross-objections claiming that a further sum of Rs.20,000 should have been awarded by the Court below by way of mesne profits. 5. During the pendency of the appeal, the second respondent herein, the second plaintiff in O.S.No.144 of 1973, died and her legal representative has been brought on record by an order of this Court dated 23.8.1985 in CM.P.No.13470 of 1985. 6. The learned Counsel the appellants raised three contentens in support of this appeal. Firstly, it was contended that the appellants, had, even on 1.8.1972, when the plaintiffs in O.S.No.144 of 1973 became entitled to the properties under the will of Natesa Iyer, parted with the properties purchased from Krishnamurthy and, therefore, they cannot be made liable for mesne profits in the manner done by the Court below. On the other hand, the learned Counsel for the respondents submitted that In the course of I.A.No.616 of 1977, it had been clearly stated that the appellants were in possession of the double crop wet lands and that had not been controverted at all. It was also pointed out that even in the course of trial in O.S.No.144 of 1973, the appellant's plea that they were not in possession had not been accepted and that the putting forward of a plea of acquisition of prescriptive title by the appellants clearly indicated that they were in possession. The learned counsel further submitted that in any event, the appellants, as persons who had prevented the respondents from taking possession of the properties, are liable for mesne profits. Reliance in this connection ‘was placed upon the decision of the Supreme Court in Lucy Kochuvareed v. P. Mariappan Gounder Lucy Kochuvareed v. P. Mariappan Gounder (1978)3 S.C.C. 150=A.I.R.1979 S.C.1214. 7. The question of possession of the properties purchased by the first appellant from Krishnamurthy has to be first considered before the liability to mesne profits can be fastened. It is seen from the Judgment in O.S.No.144 of 1973, Sub Court, Mayuram, (which is available in A.S.No.632 of 1977 filed by the appellants herein) that the appellants put forth the plea that even on 1.8.1972, they had parted with the properties purchased from Krishnamurthy in favour of others. It is seen from the Judgment in O.S.No.144 of 1973, Sub Court, Mayuram, (which is available in A.S.No.632 of 1977 filed by the appellants herein) that the appellants put forth the plea that even on 1.8.1972, they had parted with the properties purchased from Krishnamurthy in favour of others. Three documents of sale executed by the first appellant In favour of defendants 7, 11 and. 8 in the suit were also relied upon. It was found that the first appellant had taken an assignment of an insurance policy without making any payment for the purchase of properties from Krishnamurthy on 5.8.1950 and that none of the alienees purchased properties in good faith, but their conduct clearly established bad faith or want of good faith. It was also, further found that the first appellant had coerced Krishnamurthy into taking an insurance policy and the assignment thereof and that subsequent to the death of Krishnamurthy, the first appellant had also collected the amount of Rs.45,000 due under the policy. Thus, the Court was not inclined to accept the sale in favour of the first appellant as supported by consideration or the so-called further sales by the first appellant in favour of others as bona fide. Ultimately, the Court granted a decree for recovery of possession against all the defendants. If really, as the appellants would now contend, they had parted with possession of the properties purchased by them from Krishnamurthy and they were not in possession, it is difficult to understand how the Court proceeded to grant a decree for possession even as against the appellants. That is not all. The filing of the appeal in A.S.No.632 of 1977 by the appellants herein before this Court has already been referred to. It is significant that none of the so-called alienees from the first appellant had filed the appeal or joined the first appellant in filing the appeal. That would clearly establish that the real persons aggrieved by the decree for recovery of possession were not the alienees, but the appellants. Unless the appellants were in possession of the properties, their filing the appeal and obtaining stay cannot be explained at all. Besides, the appellants raised in the course of trial a plea of adverse possession. That was also negatived. Such a plea could have been raised only on the strength of the possession of the appellants. Unless the appellants were in possession of the properties, their filing the appeal and obtaining stay cannot be explained at all. Besides, the appellants raised in the course of trial a plea of adverse possession. That was also negatived. Such a plea could have been raised only on the strength of the possession of the appellants. That also indicates that the appellants were in possession of the properties and wanted to defeat the plaintiffs in O.S.No.144 of 1973 by a plea of adverse possession, though that was not accepted by the Court. Above all, in the affidavit filed in support of I.A.No.616 of 1977, the plaintiffs have clearly stated that the appellants had admitted the lands to be in their possession and those lands were double crop wet lands, the net income from which would be 12 kalams per mah. The counter filed by the first appellant in this behalf is bald and not very clear or specific in that it does not categorically deny the possession of 20 acres by the appellants. But, while admitting the liability to account for the same, it proceeds to state that items had been sold to third parties. The passing of a decree for possession against the appellants despite their setting up a plea that they had parted with the properties purchased from Krishnamurthy has already been referred to. Three instances of sale were also relied upon. The Court had not accepted the sales as bona fide or genuine transactions. That would mean that the transactions of sale were only make-believe transactions and not real ones. Further, Exhibit A-3 shows that the first appellant has sworn to an affidavit as late as 3.11.1977 stating that he was anticipating better kuruvai crops and was expecting to remit a sum of Rs.10,000, but that he was not able to owing to submersion of lands in water and damage to crops. On this ground, the appellants sought a variation of the earlier order passed, by extending the time for payment of the amounts directed by the Court earlier. It is thus clearly established that the appellants were in possession and had raised crops and were anticipating a good harvest, which turned out to be a disappointment, and therefore variation of the order and extension of time became necessary. This would also show that the appellants were in possession, though they stated that they were not. It is thus clearly established that the appellants were in possession and had raised crops and were anticipating a good harvest, which turned out to be a disappointment, and therefore variation of the order and extension of time became necessary. This would also show that the appellants were in possession, though they stated that they were not. The aforesaid features which could be culled out from the judgment in O.S.No.144 of 1973 and the other materials clearly point out that the appellants continued to remain in possession of the properties, but wanted to avert a decree for possession by saying that they had sold the properties and parted with possession, which was not established either in the course of the trial of the suit O.S.No.144 of 1973 or even now in the course of the present proceedings. There is also no acceptable material to show that the so-called vendees from the first appellant were put in possession of the properties stated to have been sold in their favour. Undoubtedly, therefore, the appellants as persons in possession of the properties have to be held liable for mesne profits. 8. Even on the footing that the appellants were not in wrongful possession and enjoyment of the properties, they cannot avoid their liability for mesne profits, for, it is seen that the plaintiff's being kept out of possession is attributable to a joint or concerted act of the appellants and the other so-called alienees from the appellants. Illustrative of this principle is the decision of the Supreme Court in Lucy Kochuvareed v. P. Mariappa Gounder (1978)3 S.C.C.150= A.I.R.1979 S.C.1214. The Supreme Court observed at page 1219 thus: “… It is clear that wrongful possession of the defendant is the very essence of a claim for mesne profits and the very foundation of the defendant's liability therefor. As a rule, therefore, liability to pay mesne profits goes with actual possession of the land. That is to say, generally, the person in wrongful possession and enjoyment of the immovable property is liable for mesne profits. As a rule, therefore, liability to pay mesne profits goes with actual possession of the land. That is to say, generally, the person in wrongful possession and enjoyment of the immovable property is liable for mesne profits. But, where the plaintiff's dispossession, or, his being kept out of possession can be regarded as a joint or concerted act of several persons, each of them who participates in the commission of that act would be liable for mesne profits even though he was not in actual possession and the profits were received not by him but by some of his confederates. In such a case where the claim for mesne profits is against several trespassers who combined to keep the plaintiff out of possession, it is open to the Court to adopt either of the two courses; It may by its decree hold all such trespassers jointly and severally liable for mesne profits, leaving them to have their respective rights adjusted in a separate suit for contribution; or it may, if there is proper material before it, ascertain and apportion the liability of each of them on a proper application made by the defendant during the same proceedings.” The above observations of the Supreme Court would be squarely applicable to this case. It is as a result of the concerted action of the appellants as well as the so-called alienees that the plaintiffs have been kept out of possession. Therefore, leach one of them participating in that fact, which results in the plaintiffs’ being ‘kept out of possession, would be liable for mesne profits, even though he was not in actual possession and profits were not received by him but by others. On the facts of this case, it is clearly established that the appellants as well as the so-called alienees from them, even during the trial of the suit, attempted to avert the passing of a decree for possession as well as mesne profits, which, however, did not succeed. Again, in the course of the mesne profits enquiry, the appellants have attempted the same defence with a view to escape the liability for mesne profits on the ground that they are not in actual possession. However, in view of the finding already rendered that the appellants were in possession of the properties in question, they would be undoubtedly liable for mesne profits. However, in view of the finding already rendered that the appellants were in possession of the properties in question, they would be undoubtedly liable for mesne profits. Even assuming that possession was not actually with the appellants, they have to be treated as persons who had prevented the plaintiffs from taking possession of the properties and, therefore, liable for mesne profits, irrespective of the fact whether they were in possession of the properties and were in receipt of mesne profits, as laid down by the Supreme Court in the decision referred to earlier. 9. Reliance was placed by the learned Counsel for the appellants upon the filing of a memo by the Counsel for the plaintiffs in O.S.No.144 of 1973 in the course of the enquiry for mesne profits that the first appellant was in possession of a very small extent of land. That is not really very material for, even if the appellants were not in possession of that small extent of land, they could nevertheless be made liable on the principle enunciated by the Supreme Court and extracted earlier. No importance can, therefore, be attached, to the memo stated to have been filed in the course of the proceedings before the Commissioner. Under those circumstances, the Court below was quite right in concluding that the appellants would be liable for mesne profits. 10. The learned counsel for the appellants next contended that the yield at 300 kalams of paddy fixed by the court below is excessive. According to the learned Counsel, there is really no basis for the fixation of the yield as done by the Court below. On the other hand, the learned Counsel for the plaintiffs in O.S.No.144 of 1973 relied upon the lease agreement executed by the first defendant in the suit even as far back as 14.9.1972 (Exhibit A-13 in the proceedings before the Commissioner) as well as Exhibit A-1 to contend that the quantum fixed by the Court below at 300 kalams of paddy is erroneous. 11. In the affidavit filed by the plaintiffs in support of the application for mesne profits, they have referred to the execution of the lease deed by defendants 1 and 2 agreeing to deliver 400 kalams of paddy for an extent of 15-32 acres. That the net yield from the lands in question is 12 kalams per mah has also been set out by them. That the net yield from the lands in question is 12 kalams per mah has also been set out by them. The rate is also stated to be Rs.20/- per kalam. In respect of all this, the appellants have not even whispered anything in denial. Further, it is seen from Exhibit A-13 that the first defendant had agreed to cultivate the suit properties and pay 400 kalams of paddy and to take the surplus for the trouble taken by him. This was at a time when there were no disputes between the parties. The yield mentioned in Exhibit A-13 can, therefore, be taken to represent the normal yield available to the plaintiffs. Nothing has been suggested as to why the yield reflected in Exhibit A-13 is not acceptable. Further, it is seen from Exhibit A-1 that the first defendant executed the agreement Exhibit A-13 agreeing to pay 400 kalams of paddy per year. However, he had admitted in Exhibit A-1 his liability to pay at least at the rate of 250 kalams of paddy per year. It is not the case of the appellants that the tharam or the fertility of the lands is different. Therefore, the minimum to which she plaintiffs would be admittedly entitled is 250 kalams of paddy for about 15-32 acres. The Court below had accepted that the appellants are liable to pay more than 250 kalams of paddy. On the basis of Exhibit A-13, the appellants should have been held liable to pay 540 kalams of paddy. However, the court below made some allowance for cultivation expenses and kist. In doing so, it overlooked that under Exhibits A-1 and A-13, the net yield measurable had been stated as 250 and 400 kalams of paddy respectively after making provisions for expenses. Thus, even rounding off 140 kalams of paddy, the appellants have to pay at least 400 kalams of paddy per year. Therefore, the appellants are held liable to pay 400 kalams of paddy per year instead of 300 kalams of paddy, as fixed by the Court below. 12. Lastly, the learned Counsel for the appellants submitted that the fixation of price of paddy at Rs.20 per kalam during the period in question is excessive. Therefore, the appellants are held liable to pay 400 kalams of paddy per year instead of 300 kalams of paddy, as fixed by the Court below. 12. Lastly, the learned Counsel for the appellants submitted that the fixation of price of paddy at Rs.20 per kalam during the period in question is excessive. On the other hand, the learned Counsel for the respondents pointed out that even the Revenue Court had fixed the price of paddy at Rs.22.23 per kalam for faslis 1384 to 1386 and there is, therefore, no justification for the fixation of price of paddy at Rs.20 per kalam. It is seen from paragraph 34 of the report of the Commissioner that the price adopted by the Revenue Court for the years 1975, 1976 and 1977 is Rs.22.23 per kalam. There is nothing to show that the fixation of price by the Revenue Court was either excessive or on the high side. Nothing has also been suggested as to why the price as fixed by the Revenue Court cannot be accepted for those years in question. Therefore, for faslis 1384 to 1386 (1974 to 1977), the rate per kalam has to be fixed at Rs.22.23. However, for faslis 1382 and 1383, the price of paddy was less than the price during faslis 1384 to 1386. It is seen from the evidence of P.Ws.1 and 3 as well as the purchase bills of paddy during the relevant period that during fasli 1382, the price of paddy was Rs.17.50 per kalam and it was Rs.20.38 per kalam for fasli 1383. Computing the mesne profits at the rate 400 kalams of paddy per year at the rates mentioned above, the appellants have to pay the respondents the following amounts: Fasli 1382 (1972-1973) for 400 kalams of paddy at Rs. 17.50 per kalam = Rs. 7,000 Fasli 1383 (1973-1974) For 400 kalams of paddy at Rs.20.38 per kalam = Rs. 8,152 Fasli 1384 to 1386 (1974 to 1977) For 400 kalams of paddy at Rs,22.23 per kalam (Rs.8,892 × 3) = Rs.26,676 Total ---------= Rs.41,828 --------- Thus, the appellants are liable to pay a sum of Rs.41,828 instead of Rs.30,000, as fixed by the Court below for the period in question and there will be a decree accordingly in favour of the respondents. 13. 13. Consequently, the appeal will stand dismissed with costs of the first respondent and the Memorandum of Cross-objections will stand allowed in part to the extent indicated. There will be, however no order as to costs in the Memorandum of Cross-objections. Appeal dismissed.