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1934 DIGILAW 99 (ALL)

Jugal Kishore v. Prag Kalwar

1934-03-06

BAJPAI

body1934
JUDGMENT Bajpai, J. - This is an appeal by the Plaintiff Jugal Kishore whose suit for the recovery of mesne profits has been dismissed by the Courts below on the plea that the suit is barred by the provisions of Order II, Rule 2, Code of Civil Procedure. The facts are that the Plaintiff brought a suit for recovery of possession against the Defendants and obtained a decree on the 23rd December, 1926. He subsequently had to bring a suit for partition and possession on the 11th February, 1928, and that suit was decreed on the 15th July, 1929. He brought a suit for mesne profits for the period beginning from the 23rd December, 1926, and ending in June 1929. Before the lower appellate Court the claim was confined to the period from the 5th of February, 1928, (the date when the Plaintiff obtained formal possession in pursuance of the decree of the 23rd of December, 1926), to the 30th of June, 1929. It was held on the authority of two cases in Mewa Kuar v. Banarsi Prasad (1895) 17 All. 533 and Goswami Gordhan Lalji Maharaj v. Bishambhar Nath (1927) 25 A.L.J, 409, that the claim for mesne profits for this period which was covered by the partition suit is barred by the principle of Order II, Rule 2, Code of Civil Procedure, inasmuch as it was open to the Plaintiff to have joined in the claim for partition the claim for mesne profits during the pendency of the suit. The Plaintiff contends that this view of law taken by the Court below is incorrect in view of the Full Bench decision of this Court in the case of Rup Narain Singh v. Nakchhed Ahir (1931) 1931 A.L.J. 673 (F.B.). This is a clear authority for the proposition that the claim for mesne profits accruing subsequent to the institution of the previous suit is a claim based on a different cause of action and is not barred by the provisions of Order II, Rule 2. The Full Bench considered the two cases on which reliance has been placed by the Court below and held that the case in Mewa Kuar v. Banarsi Prasad was clearly distinguishable whereas the case in Goswami Gordhan Lalji Maharaj v. Bishambhar Nath was definitely dissented from and overruled. The Full Bench considered the two cases on which reliance has been placed by the Court below and held that the case in Mewa Kuar v. Banarsi Prasad was clearly distinguishable whereas the case in Goswami Gordhan Lalji Maharaj v. Bishambhar Nath was definitely dissented from and overruled. It was not possible for Learned Counsel on behalf of the Respondents in view of the Full Bench decision to support the judgment of the Courts below, but it was pointed out on their behalf that the Defendants would be liable for mesne profits only if they were in wrongful possession and the finding of the lower appellate Court on this point is not very satisfactory, specially in view of the fact that the Court of first instance arrived at a different finding. It is true that the Defendants can be made liable for mesne profits only if they were in possession and the mere finding that the Appellant was not in possession would not justify in law the passing of a decree against the Defendants. The lower appellate Court however has discussed the evidence in the case and has come to the conclusion that from September 1927, a tenant on behalf of the Defendants was in occupation of the house for two years and the finding is that: "It is thus proved that the Respondents were in possession." This finding is challenged on the ground that there is no decision by the Court below that the Respondents realised the rent from the tenant but the fact remains that there is no evidence that the Appellant realised any rent from the tenant. The tenant having been let into possession by the Defendant it is a reasonable inference that the rent was also realised by him. The finding of fact that the Respondents were in possession cannot therefore be challenged on any reasonable ground of law. For the reasons given above, namely, that the Plaintiff's suit is not barred by Order II, Rule 2, I hold that the Plaintiff is entitled to mesne profits from the 11th of February, 1928, to the 30th of June, 1929. The Court of first instance found the rate at which the Plaintiff is entitled to mesne profits but there is no finding by the lower appellate Court. The Court of first instance found the rate at which the Plaintiff is entitled to mesne profits but there is no finding by the lower appellate Court. I therefore allow this appeal to this extent that, I decree the Plaintiff's suit for mesne profits from the 11th of February, 1928 to the 30th of June, 1929, and under Order XLI, Rule 23 remand the case to the lower appellate Court for the determination of these mesne profits. As the decision of the Court below proceeded upon a preliminary point and the remand is under Order XLI, Rule 23 the Plaintiff is entitled to a refund of court-fee. Costs here and heretofore will abide the event.