JUDGMENT : This second appeal arises out of the plaintiff-appellant;' s suit for the recovery of Rs.600/- as her share of the profits of certain lands situated in Mouja Bagera for the years Samvat 2000, 2001 and 2002. The plaintiff sought to recover this amount, also in the alternative, as damages for the use and occupation of the lands by the defendants. The plaintiff-appellant sued on the allegations that the land in Mouja Bagera was the ancestral property of a joint family consisting of her deceased husband and the defendants; that she was a recorded co-tenant of the land and had one-third share in it and that since the year Samvat 1997, the defendants were in possession of her share of the land with her pemission and that they had not paid to her, her share of the profits of the land for the year Samvat 2000, 2001 and 2002 at the rate of Rs.200/- per annum. It was further stated by the plaintiff that previous to the institution of the present suit, she (had instituted a suit for the recovery of the amount of profits for the years Samvat 1997, 1998,1999 and that the suit was decreed in her favour. The plaintiff pleaded in the alternative that if the defendants be held to be in possession of her share in the land without her permission, then her claim be decreed as damages for the use and occupation of the land by the defendants. The defendant-respondents admitted that the appellant Gangabai was a recorded co-tenant of the land but denied that the land in question was a joint family property or that Gangabai had any share in it. They resisted the suit also on the ground that it was barred by O.2, R.2 inasmuch as in the previous suit for mesne profits, the plaintiff Gangabai did not seek the relief of possession of the land, she was not now entitled to claim the possession of the land, and that therefore he could not claim any mesne profits. 2. The learned Munsiff of Tarana who tried the suit, found that Gangabai was a recorded co-tenant of the land and had one-third share in the profits thereof and was, therefore, entitled to recover Rs.600/- as her share for the three years from Samvat 2000 to 2002. 2. The learned Munsiff of Tarana who tried the suit, found that Gangabai was a recorded co-tenant of the land and had one-third share in the profits thereof and was, therefore, entitled to recover Rs.600/- as her share for the three years from Samvat 2000 to 2002. He also held that the land was the property of the joint family constituted by the defendants and Gangabai's deceased husband. But he dismissed the plaintiff' s suit on the ground that Gangabai having failed to sue for possession of the land in the previous suit, her present suit for mesne profits was barred under O.2, R.2. In coming to this conclusion, the learned Munsiff followed - 'Saghir Hassan v. Tayab Hasan', AIR 1940 All 524 (A); - 'Mahomed Yunas v. Mt. Jahan Sultan', AIR 1942 Pesh 9 (B) and - Tayyab Hasan v. Saghir Hasan', AIR 1939 All 52 (C). The plaintiff, thereupon, appealed to the court of District Judge Shajapur. The learned District Judge only considered the question of the applicability of O.2, R.2 and agreeing with the decision of the trial court on the point, upheld the decree of the trial court dismissing the plaintiff's suit. The plaintiff has now appealed to this court from the decision of the District Judge Shajapur. 3. Before me Mr. Samvatsar the learned counsel appearing on behalf of the appellant argued that the decisions relied on by the courts below which related to the recovery of possession and mesne profits of the property from a person in wrongful possession of the property, were not applicable in the present case as the plaintiff Gangabai's suit was not a suit for the recovery of mesne profits from a person in wrongful possession of the land in suit. It was maintained that Gangabai's present suit, as her previous suit, was for the recovery of her share of profits from a co-sharer whose sole possession of the land was the possession of all the co-tenants and who had received the profits of the joint property and who had not paid to the plaintiff her snare. It was maintained that Gangabai's present suit, as her previous suit, was for the recovery of her share of profits from a co-sharer whose sole possession of the land was the possession of all the co-tenants and who had received the profits of the joint property and who had not paid to the plaintiff her snare. Learned counsel for the appellant further argued that Gangabai's previous suit and the present suit were based on different causes of actions; that in the previous suit, the cause of action was Gangabai's title as a co-sharer and the realisation by the defendants of her share of the profits for the years Samvat 1997, 1998 and 1999 and that in the present suit, the cause of action consisted of Gangabai's title and the receipt by the defendants of her share of the profits for the years Samvat 2000 to 2002. In support of this argument, learned counsel placed reliance on - 'Dunichand v. Jagdev', AIR 1949 EP 243 (D). It was also said on the authority of - 'Ram Karan Singh v. Nakchhad Ahir', AIR 1931 All 429 (SB) (E) - Tadepalli Ramiah v. Madala Thathiah', AIR 1937 Mad 849 (F) and - Venugopal Pillai v. Thirugnanavilli Pillai', AIR 1940 Mad 934 (G) that a claim for possession and a claim for mesne profits were based on different causes of action and that, therefore, even if Gangabai's claim was regarded as one for the recovery of mesne profits from a person in wrongful possession of the land, O.2, R.2 could not be a her to her present claim. 4. The argument of Mr. Chitale, learned counsel for the respondent, was that in the courts below it was not the case of the appellant that the respondents being her co-sharers, the possession and the receipt of profits by them could not in law be wrongful and that therefore, her right to such profits was not as mesne profits received by a person in wrongful possession but as appurtenant to her right in the share of the property and that, therefore, she was entitled to sue for the recovery of those profits for any period whenever the defendant co-sharers realised her share of profits and withheld them from her. Learned counsel for the respondent drew my attention to the decision of the Indore High Court in an appeal arising out of the previous suit of the appellant Gangabai and said that by that decision Gangabai's claim for the profits of the years Samvat 1997 to 1999 was regarded as a claim for mesne profits and decreed on the admitted fact that the respondents had ousted Gangabai .from her tights and denied her claim to a share. It was further said that as the present suit of the plaintiff was framed to fit in with the decision of the Indore High Court in the previous suit, it could not but be regarded as one for the recovery of mesne profite from persons in possession without title. Referring to the teste, laid down by the Privy Council in - 'Mahomed Khalil Khan v. Mahoub Ali Mian' , AIR 1949 PC 78 (H) to determine whether the causes of action in two claims are different or the same, learned counsel argued that the causes of action. in Gangabai's former suit and the present suit were the same, namely, the plaintiff's being kept out of possession and that as Gangabai failed to sue for possession in the previous suit, she was not entitled to file a second suit claiming mesne profits for the period subsequent to the previous suit during which she was kept out of possession by the defendant. Learned counsel for the respondents proceeded to say that there was no doubt a conflict of opinion as to whether a suit for the mesne profits bars a (subsequent suit for possession or for mesne profits, and commended for acceptance the view that a second suit for mesne profits or possession is barred by O.2, R.2 by saying that the contrary view which regarded a claim for possession and a claim for mesne profits as founded on two different causes of action was. difficult to reconcile with the opinion of the Privy Council in - 'Naba Kumar Hazra v. Radhashayam Mahish', AIR 1931 PC 239 (I) to the effect that a claim for mesne profits rested on the same foundation of facts and law as theright to seek possession of the property, In support of this submission, Mr. difficult to reconcile with the opinion of the Privy Council in - 'Naba Kumar Hazra v. Radhashayam Mahish', AIR 1931 PC 239 (I) to the effect that a claim for mesne profits rested on the same foundation of facts and law as theright to seek possession of the property, In support of this submission, Mr. Chitale further relied on -'Channappa Girimalappa v. Bagalkot Bank', AIR 1942 Bom 338 (J) where it is observed that the provision in O.2, R.4 C.P.C., that no cause of action shall unless with the leave of the court be joined with a suit for the recovery of immovable property, except claims for mesne profits or arrears of rent, is a provision "inserted ex abundanti cautela without intending to lay down that the causes of action for possession and for mesne profits or arrears of rent accruing were distinct." 5. On a prolonged and careful consideration of the arguments of learned counsel for the parties, I have formed the opinion that this appeal must be dismissed. 6. The identity of the cause of action being the Sine Qua Non to the application of O.2, R.2, the main question that arises for determination in this appeal is whether the cause of action in the appellant Gangabai's previous suit far the recovery of profits for the years Samnvat 1997, 1998 and 1999 was different from the cause of action in the subsequent suit oat of which this appeal arises. If the causes of action in the two suits are the same, then, undoubtedly the plaintiff appellant' s present suit must be held to be barred under O.2, R.2. The principles governing the applicability of O.2, R.2 have been authoritatively laid down in a number of Privy Council and English cases which have been reviewed in ' AIR 1949 PC 78 (H). The principles governing the applicability of O.2, R.2 have been authoritatively laid down in a number of Privy Council and English cases which have been reviewed in ' AIR 1949 PC 78 (H). Briefly summarised the principles are that "(1) the correct test in cases falling under O.2, R.2 is whether the claim in a new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit; (2) the cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment; (3) if the evidence to support the two claims is different, then the causes of action also are different; (4) the causes of action in the two suits may be considered to he the same, if in substance they are identical and (5) the cause of action has no relation whatever to the defence that may be set up by the defendant. Nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour". 7. Before proceeding to find out on an application of these principles whether the causes of action in Gangabai's previous suit and in the present suit are the same or distinct, it is necessary to bear, in mind the distinction between a suit for the recovery of profits of a property from a person who has been in wrongful possession thereof and a suit for the recovery of profits from a person who has realised the profits and who is under an obligation to account and hand over the profits to the plaintiff. Wrongful possession by the defendant is the very essence of a claim in the first type of suit which is a suit for the recovery of mesne profits as defined in S.2, Cl.12, Civil P.C., such profits being really in the nature of damages. In the second type of cases, the possession or the receipt of the profits by the defendant is not wrongful and the plaintiff' s claim rests on his right to the profits, the realisation of the profits by the defendant and the defendant' s obligation to account and pay the profits to the plaintiff. In the second type of cases, the possession or the receipt of the profits by the defendant is not wrongful and the plaintiff' s claim rests on his right to the profits, the realisation of the profits by the defendant and the defendant' s obligation to account and pay the profits to the plaintiff. Now when one co-sharer seeks to recover profits from another co-sharer in sole occupation of the common property, the suit may be of either type. He may claim mesne profits because the defendant co-sharer has excluded or ousted him from possession or has challenged his title to joint possession of the property of which they are tenants-in-common. In such a case, in the absence of ouster, the plaintiff co-sharer would not be entitled to any decree for mesne profits. Or, he may, when there is no ouster or exclusion, claim profits from the co-sharer in sole possession on the ground- that the defendant co-sharer by reason of his exclusive possession, of the property is bound to account to the plaintiff for the profits received by him in excess of his share. Learned counsel for the appellant sought to argue on the authority of - 'Hardit Singh v. Gurumukh Singh', AIR 1918 PC 1 (K); - 'Kimappa v. Manjaya', AIR 1923 Bom 440 (L) and AIR 1949 EP 243 (D) that where co-sharers are entitled to joint possession of immoveable property as tenants-in-common each of such co-sharer is entitled to be in possession of each and every part of the common land and that the exclusive possession of the property by a tenant-in-common is not adverse to his co-tenant and enures for the benefit of all and that, therefore, it is always open to a tenant-in-common to sue a co-sharer who is in the exclusive possession of the common property for the recovery of profits as the right to an account and payment of profits is one implicit in the right to a share in the property. I do not think that any of the cases cited by the learned counsel for the appellant lay down the proposition that even when a co-sharer has been dispossessed or ousted, he 'can' instead of suing for mesne profits, maintain a suit against the co-sharer in wrongful possession for his share of profits and for an account of the profits. I do not think that any of the cases cited by the learned counsel for the appellant lay down the proposition that even when a co-sharer has been dispossessed or ousted, he 'can' instead of suing for mesne profits, maintain a suit against the co-sharer in wrongful possession for his share of profits and for an account of the profits. The remedy of the co-sharer who is dispossessed must be to sue the other for joint possession and he can claim along with it mesne profits. It is true that the principle of possession between the co-owner is that every co-owner is a tenant-in-common and that the possession of a tenant-in-common is not adverse to his co-tenant and as a general proposition the entry of one co-tenant in the absence of clear proof to the contrary enures for the benefit of all. But it is clear from the observations made in the very cases relied on by the learned counsel far the appellant that where a co-sharer enters into possession of the share of other co-sharer not in his right as co-tenant but in denial of such right of the co-tenant cannot be said that this possession would enure for the benefit of the other co-sharers whom he has excluded from the enjoyment of the property. A person cannot be a tenant-in-common with a person who has never recognised him as a co-tenant, and claim that the sole possession of such a person is not wrongful. 8. Turning now to the nature of the two suits of Gangabai it appears to me that in the previous suit which was filed in 1945 Gangabai alleged that she was a co-tenant of the land with the defendants that the defendants were in the sole possession of the property and had been receiving the profits and had not paid her share to her, and on that basis asked for mesne profits for the years Samvat 1997, 1998 and 1999. The defendant in that suit admitted that she was a recorded co-tenant but claimed exclusive right of possession and title by adverse possession as against Gangabai. The learned Judge in that suit passed a decree in favour of Gangabai for Rs.200/- as damages for the use and occupation of the land by the defendant. The defendant in that suit admitted that she was a recorded co-tenant but claimed exclusive right of possession and title by adverse possession as against Gangabai. The learned Judge in that suit passed a decree in favour of Gangabai for Rs.200/- as damages for the use and occupation of the land by the defendant. The defendants then appealed to the Indore High Court and took the objection that the suit as framed did not lie as there could be no suit for damages for the use and occupation as between co-tenants. In rejecting this objection and in affirming the decree of the trial court, Rege, J., of the Indore High Court said in his judgment: - "The plaint, it is true, is artistically drafted but it is a common ground that the defendant has ousted the plaintiff from her rights and denied her claim to a share The, formal defect in the plaint, therefore, has not caused any prejudice". The precise form in which the objection to the plaint in that suit was taken is not clear from the judgment in appeal of the Indore High Court in that suit. But I understand from the observations of the learned Judge reproduced above that the defect in the plaint consisted in Gangabai's omission to state that she had been ousted. The learned Judge however found that as a fact that she has been dispossessed and then decreed her claim as mesne profits. It is thus clear that the foundation of Gangabai's first suit was the wrongful possession of the defendants and her suit was for the recovery of mesne profits. Gangabai may have described in the plaint her claim as one for the recovery, of her share of profits, not as mesne profits but as appurtenant to her right in the share of the property. But the true juridical nature of the relationship between her and the defendants was that she was a co-tenant who had been ousted by the defendants. That being so, it was the admitted fact of ouster which furnished a cause of action for her claim to mesne profits. 9. But the true juridical nature of the relationship between her and the defendants was that she was a co-tenant who had been ousted by the defendants. That being so, it was the admitted fact of ouster which furnished a cause of action for her claim to mesne profits. 9. In the suit out of which this appeal arises, Gangabai seeks to recover Rs.600/- as profits from the defendants alleging in the first instance that the defendants are in sole occupation of the land with her permission and that, therefore, they are under an obligation to account and pay the profits of her share of the land. In the alternative she pleads that if the defendants possession be regarded as wrongful since Samvat 1997, her claim may be decreed as damages for the use and occupation of the land by the defendants. It is strenuously contended on behalf of the appellant that on these statements in the plaint, there can be no doubt that Gangabai's present suit is not for the recovery of mesne profits from a person in wrongful possession of the property but is one for the recovery of her share of profits from a tenant-in-common whose sole possession of the land is the possession of all and who has realised the profits of the common property. In my view, having regard to the nature of the previous suit of Gangabai and to the basis on which she secured a decree for mesne profits in that suit, the contention of the learned counsel for the appellant is untenable. Gangabai' s first suit being based on the fact of the ouster and the decree for mesne profits in her favour in that suit being made to rest on the finding of ouster, the possession of the defendant-respondent at the institution of the present suit must also be regarded as wrongful. If a co-tenant is in wrongful possession of the property and the court makes a declaration showing that his possession is wrongful then as pointed out by the Privy Council in - 'Subbaiya Pandaram v. Mohamad Mustafa', AIR 1929 PC 175 (M), that does not affect the quality of his possession but merely advertises the fact that it is adverse. If a co-tenant is in wrongful possession of the property and the court makes a declaration showing that his possession is wrongful then as pointed out by the Privy Council in - 'Subbaiya Pandaram v. Mohamad Mustafa', AIR 1929 PC 175 (M), that does not affect the quality of his possession but merely advertises the fact that it is adverse. The appellant Gangabai is bound by the plea she took in her suit of 1943 and by the decision in that suit, and she cannot now say that although she did not pray for the relief of possession in that suit and obtain joint possession of the property, the effect of the decree in her previous suit was to break possession of the defendants so far as it was adverse to her. If as I think and has been found by the courts below the defendant respondent's possession of the land was wrongful at the institution of the suit then Gangabai's claim to the profits she seeks to recover can only be as mesne profits and her present suit cannot on her pleadings be regarded as any other than one for the recovery of mesne profits from persons in wrongful possession of the property. 10. It is clear from what has been stated above that the facts relied on by Gangabai in her first suit are in substance the same as those on which she seeks to rely in the action with which we are now concerned. The media or the grounds of the suit of 1943 and of the present suit are the same, namely, the plaintiff's title to the land and her dispossession by the defendants which commenced in samvat 1997. The cause of action therefore, in the present suit is the same as the cause of action in the first. The fact that the previous suit was for the recovery of mesne profits for the years Samvat 1997 to 1999 and the present suit is for the recovery of the profits for the subsequent years makes no difference. To say that because of this fact the cause of action in the two suits is not the same, is to confuse the cause of action with the relief claimed which as stressed by the Privy Council in ' AIR 1949 PC 78 ' (H) is a common error. To say that because of this fact the cause of action in the two suits is not the same, is to confuse the cause of action with the relief claimed which as stressed by the Privy Council in ' AIR 1949 PC 78 ' (H) is a common error. The period during which the defendant's wrongful possession continued is material only for fixing the extent of his liability for the amount of mesne profits. But the plaintiff' s right to recover mesne profits arises out of her title to the property and her right to immediate possession of the property. If the cause of action in the appellant' s two suits were not the same the result would be that even if she had failed to establish her right to mesne profits in the first suit, she would have been entitled to file a fresh suit to recover the land or the mesne profits. But this she could not have dearly done for her isepoad suit would hane been barred by the plea of res judicata as to her title. The causes of action in Gangabai's two suits being the same, the further point that arises for decision is whether she could have in the first suit claimed in substance any relief which she is seeking in the present suit. It is quite true that as Gangabai' s first suit was not for the recovery of possession of the property she could not have under O.20, R.12 claimed in that suit future mesne profits. But she could have sued for possession of the land in her first suit. She, however, omitted to do so though she was entitled to joint possession of the land. As the relief of the recovery of possession could have been claimed in the first suit, the relief cannot be granted in a subsequent suit founded on the same cause of action. Again a person is not entitled to a decree for mesne profits, unless he shows that he is entitled to immediate possession, of the property. It follows, therefore, that Gangabai having omitted without the leave of the court to sue in the first suit for the recovery of possession in the land, she is now debarred from doing so under O.2, R.4(3) and if she cannot now sue for possession, she can have no claim for mesne profits. It follows, therefore, that Gangabai having omitted without the leave of the court to sue in the first suit for the recovery of possession in the land, she is now debarred from doing so under O.2, R.4(3) and if she cannot now sue for possession, she can have no claim for mesne profits. The view that a claim for mesne profits rests on the same foundation of facts and law as the right to seek possession of the property seems to me supported by the judgment of the Privy Council in ' AIR 1931 PC 229 (I)' . It is also supported by the decisions reported in 'AIR 1539 All 52 (C)'; ' AIR 1940 All 524 (A)'; AIR 1942 Pesh 9 (B)' and - 'Hiromal v. Faridkhan', AIR 1915 Sind 35 (N). 'In these four cases, it has been held that where the plaintiff on being dispossessed of land files a suit for mesne profits only which is decreed in his favour, he cannot subsequently file a suit for recovery of possession of the land and if he is not entitled to possession, he is not entitled to mesne profits also. A contrary view has, no doubt, been taken in - Monohur Lall v. Gouri Sunkur'. 9 Cal 283 (O) is distinguishable on the ground that in that case it was held on the facts of the, case that there were two different causes of action, one arising upon the death of one person and the second cause of action arising upon the death of that person' s widow. The decision in - 'Tirupati v. Narasimha', 11 Mad 210 (P) proceeded on the basis that a claim for possession and a claim for mesne profits were separate causes of action. It seems to me difficult to reconcile the view taken in 11 mad 210 (P) with the observations of the Privy Council in ' AIR 1931 PC 229 (I)' to the effect that the right to the rents and profits of a property rests on the same foundation of facts and law as the right to have the possession of the property. With reference to this Privy Council decision it has been observed in ' AIR 1937 Mad 849 (F)' and ' AIR 1940 Mad 934 (G)' that the Privy Council case did not deal with a claim for mesne profits and there is nothing in that decision contrary to the principle laid dawu in - 'Ponnamal v. Ramamirda Aiyar.', AIR 1915 Mad 912 (FB) (Q) that a claim for possession and a claim for mesne profits are distinct causes of action. It is difficult for me to see how the fact that in the Privy Council case there was. no question of wrongful possession by the purchaser, affects the general principle indicated in that case that the right to the profits of a property rests exactly on the same facts and law as the claim to the corpus of the property, I am, therefore, not inclined to agree with the view taken in 11 Mad 219 (P)' that a claim for possession and a claim for mesne profits are separate causes of action and that a suit for mesne profits only is no bar to a subsequent suit for possession or mesne profits. 11. I do not think it necessary to consider in this case the decisions reported in ' AIR 1931 All 429 (SB) (E)' and ' AIR 1937 Mad 849 (F)'. These and other cases relied by the appellant are all cases in which a suit for possession had been brought in the first instance and a claim for mesne profits was made in a subsequent suit. These cases are not in point here. I may however, observe that all these cases treat a claim for possession and a claim for mesne profits as distinct causes of action mainly on the wording of O.2, R.4, Civil P.C., which provides that no cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except claims for mesne profits or arrears of rent in respect of the property claimed or any property thereof. It seems to have been thought Gat this rule itself recognises a claim for mesne profits and a claim for possession as separate and distinct causes of action. I do not, however, think that the words of O.2, R.4 imply this conclusion. It seems to have been thought Gat this rule itself recognises a claim for mesne profits and a claim for possession as separate and distinct causes of action. I do not, however, think that the words of O.2, R.4 imply this conclusion. I agree if I may say so, with what has been said by Beaumont, C.J., in - 'Chanappa v. Bagalkot Bank', AIR 1942 Bom 338 (J) with reference to the wording of O.2, R.4. He said that "it may well be that the expression 'cause of action' in O.2, R.2, has a wider meaning than the expression in O.2, R.4. Moreover, the provision in the latter rule may have been inserted ex abundant cautela without intending to lay down that the causes of action for possession and mesne profits or arrears of rent accruing were distinct." It may also be noted that in AIR 1915 Sind 35 (N) Pratt J. C, after comparing O.2, R.4 with the analogous rule of the Supreme Court of England observed: "There the use of word claim as synonymous with cause of action is probably due to the fact that in the phraseology of the English Law, a plaint is called a statement of claim. The word claim therefore, denotes, not only the demand for relief bat the basis on which that demand is made. In the Sind case Fawcett, A.J.C, was inclined to think that O.2, R.4 must be read with the provisions of Rr.1 and 2, and so read, R.4 only meant that "no claim shall, unless with the leave of the court, be joined with a claim for the recovery of immovable property except ………" 12. In my opinion, cl.(a) of O.2, R.4 means nothing more than that the joinder of claims for mesne profits or rent, being on the same cause of action is not forbidden by the rule. The rule cannot be taken to mean that in all cases a suit for the recovery of immovable property must necessarily be based upon a cause of action different from that in a suit for arrears of rent or mesne profits of the property. 13. The rule cannot be taken to mean that in all cases a suit for the recovery of immovable property must necessarily be based upon a cause of action different from that in a suit for arrears of rent or mesne profits of the property. 13. For the above reasons, I am of the opinion that the appellant Gangabai having omitted without the leave of the Court to sue in the first suit for the recovery of possession is precluded from suing for the relief of possession in the present suit, and that as she is not entitled to possession, she cannot also claim mesne profits. The courts below were, therefore, right in holding that the appellant's present suit was barred by the previsions of O.2, R.2, Civil P.C. 14. In the result, this appeal must, and is accordingly, dismissed with costs.