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1924 DIGILAW 42 (ALL)

Girwar Singh v. Ram Piari Kuer

1924-01-22

body1924
JUDGMENT Stuart, J. - The learned District Judge has applied the principles which are laid down by a Bench of this Court in Ram Din v. Bhup Singh (1908) 30 All 225 which affirms the view taken by a single Judge in Kashi v. Bajrang Prasad (1908) 30 All 36. The learned Counsel for the appellant admits that the law has been applied correctly but he takes exception on one point. The decree for redemption was passed on 23rd April 1919 and possession was not obtained until the 16th July, 1919. His case is that although a separate suit is barred for the profits prior to 23rd April, 1919, he was entitled in the suit out of which this appeal arises to the profits which accrued between the 23rd April, 1919 and the 16th July, 1919. I cannot however accept this argument. The law as laid down in the two above rulings is based upon the provisions of the CPC which in order to prevent multiplicity of suits direct that all questions arising out of one cause of action should be heard and determined in the same suit and that if a plaintiff omits to take his remedy at the time of the original suit he shall be debarred from taking it at a later stage. But the law also provides for the awarding of mesne profits up to the date of obtaining possession and so it was open to the plaintiff-appellant not only to have asked for the mesne profits up to the date that the decree was passed but up to the date that he obtained possession and his omission to have done so tells against him not only up to the date that the decree was passed but up to the date that he obtained possession. Apart from that fact it is difficult to understand how any profits could have accrued between the 23rd April 1919 and the 16th July 1919, for in that period there are not ordinarily any crops standing on the ground. The question of date of rent demand would probably not enter into the case. 2. For the above reasons I accept the view taken by the learned District Judge and dismiss this appeal with costs on the higher scale.