( 1 ) THE suit instituted by the plaintiff for the recovery of mesne profits for three years has been dismissed by the trial Court and that decision has been affirmed by the appellate Court on the sole ground that the claim made by the plaintiff is barred by the provisions of Or. 2, R. 2 CPC. ( 2 ) THE plaintiff filed the suit on the 7th of September 1962 against the defendant in OS. 1107/62 on the file ,of the Munsiff of Mandya, claiming 1/4th share in the suit schedule properties. A preliminary decree was passed and in Exn. Case No. 1311 of 1965 on the file of the Munsiff of Mandya the plaintiff obtained possession through the Deputy Commissioner on the 29th day of August 1965. The plaintiff, thereafter, instituted the present suit OS. 1386/65"on the file of the Munsiff of Mandya for the recovery of mesne profits due to him for the period between 7-9-1962 and 29-8-1965. It was stated that the claim would be larger but he has confined his claim to only Rs. 1,000. ( 3 ) THE defendant raised various pleas and the first was one relating to the competence of the Court to entertain the second suit. ( 4 ) AS already stated, the trial Court upheld the preliminary objection that the suit was barred by the provisions of Or. 2, R. 2 CPC. and dismissed the suit. ( 5 ) THAT decision of the trial Court, as I have already stated, was affirmed by the appellate Court and the appeal was dismissed. ( 6 ) THE short question therefore is whether the suit filed by the present plaintiff is barred, having regard to the provisions of Or. 2, R. 2, CPC. ( 7 ) SEVERAL High Courts in India have considered this question and the majority of the High Courts are inclined to take the view that a second suit for the recovery of mesne profits is not barred under Or. 2, R. 2, CPC. ( 8 ) THE Bombay High Court has considered this question in two cases; the first one is in the case of Rama Kallappa Pujari v. Saidappa Sidrama pujari, AIR. 1935 Bom. 306. In that case it was held that a claim for future mesne profits does not arise on the same cause of action as a claim for possession of the land. 1935 Bom. 306. In that case it was held that a claim for future mesne profits does not arise on the same cause of action as a claim for possession of the land. Hence, where plaintiff sues for partition and possession of property with no prayer for mesne profits, a subsequent suit for future mesne profits is not barred by Or. 2, R. 2. The High Court of Bombay followed the judgments of Allahabad, Madras and Calcutta High Courts which all took the view that a suit of the present nature for the recovery of mesne profits was maintainable. This view taken by the Division Bench of the bombay High Court was later approved by the Full Bench of the same court in the case of Gangadhar Gopalrao Deshpande v. Sripad Annarao deshpande, AIR. 1938 Bom. 231 FB. . In that case, this is what was laid down:"the relief referred to in the Expln. V to S. 11 means relief arising out of a cause of section accrued at the date of the institution of the suit, and such relief does not cover future mesne profits in respect cf which the cause of action accrued subsequently to the suit. Thus after a suit for partition and possession of lands and mesne profits, past and future, has been brought and decided and the decree fails to award the claim to future profits, a second suit to recover mesne profits from the institution of the suit or the date of the decree till delivery of possession is not barred under S. 11, Expln. V. "thus, the view taken by the High Court of Bombay is that the cause of action tor the claim for mesne profits cannot be said to be the same as the cause of action for partition and possession; and the cause of action for inesne profits since it arose subsequent to tbe previous suit is not barred under Or. 2, R. 2 CPC. This view of the Bombay High Court, as already stated, gets support from the view taken by the Calcutta High Court in the case reporetd in AIR. 1931, Cal. 788 and the Allahabad High Court in air. 1931 All. 429. if. The Madras High Court has also considered this question In several cases, and the latest view is found in the judgment in Rasammal v. K. Subbaroya Goundar, AIR. 1963 Mad. 402. . 1931, Cal. 788 and the Allahabad High Court in air. 1931 All. 429. if. The Madras High Court has also considered this question In several cases, and the latest view is found in the judgment in Rasammal v. K. Subbaroya Goundar, AIR. 1963 Mad. 402. . In that case, Ramachandra Iyer, CJ. held as as follows:"a separate suit for mesne profits in respect of income received by the co-sharer in possession subequen to the institution of the prior suit for partition is maintainable and Or. 2, R. 2 or S. 11 would not bar such a separate suit for failure to include the claim for mesne profits in the partition suit. The claim by one co-sharer against another for compensation in respect of his share of the income received by the other, will arise only after the income had been received. There cannot therefore be any" prospective accounting. That would show that the cause of action will arise only on the receipt of the income i. e. , subsequent to the date of suit. Such cause of action cannot possibly exist even before it accrued. Therefore it will not be obligatory on the plaintiff in a suit for partition to ask for accounts in respect of future income, when he files the suit. The omission to do so will, therefore, not entail the application of the provisions of Order II, rule 2 or Section 11. "the Madras High Court approved fully the view taken by the Bombay and Allahababd High Courts and declined to accept the view taken by the patna High Court. ( 9 ) THE view of the Sind High Court is found in the case of Tikamdas motumal v. Kishnomal Jessomal,. AIR. 1939 Sind 367 ( 10 ) THE contrary view is stated to contain in two decisions; one is the judgment of the Patna High Court in the case reported in AIR. 1935 Patna, 80 (7 ). It is necessary to note that in the said decision of the Patna High court, the decisions of other High Courts were not discussed at length. ( 11 ) SO far as the Orissa High Court is concerned, its view is found in the case of Udekar v. Chandra Sekhar Sahu, AIR. 1961 Orissa 111. In that case the view taken by the High Court of Orissa was that a subsequent suit was not maintainable. ( 11 ) SO far as the Orissa High Court is concerned, its view is found in the case of Udekar v. Chandra Sekhar Sahu, AIR. 1961 Orissa 111. In that case the view taken by the High Court of Orissa was that a subsequent suit was not maintainable. The view taken by the Orissa High Court is found at paragraph 6 of the judgment and it reads thus :"it is now well settled that the expression 'mesne profits' as defined in S 2 (12) CPC. is restricted onlv to those profits which are derived by a person in wrongful posssesion of property belonging to another. It has absolutely no application to profits accountable by a person not in wrongful possession of the property such as by a co-sharer, before partition. This distinction was brought out in AIR. 1935 Pat. 80 and was also exhaustively dealt with in a Full Bench decision of the Madras high Court in Basavayya v. Gurvvayva (AIR. 1951 Mad. 938) which is the leading decision on the subiect That decision has been followed in Satyanarayana Murthy v Rhavara (AIR. 1957 AP. 766); krishnamma v. Lochuma naidu (AIR 1958 AP. 520) and Ram Narain prosad v. Ramaji Prasad (AIR. 1956 Pat. 244 ). As poinred out in AIR 1951 Mad. 938 where there is severance in the status of a joint Hindu family and the co-parceners thereupon become merely tenants in common, in a suit for partition filed by one of them against the others, the only right he has is the right to claim accounts of past and future mesne profits until the date of actual partition by metes and bounds after making all just allowance in favour of the collecting tenant in common. The tenant in common who is in possession cannot be said to be in wrongful possession though he may be liable to render accounts relating to his share. Such a claim for accounts is not, strictly speaking, a claim for mesne profits as defined in the CPC. The provisions of or. 20 R 12. CPC. or of Or. 2, R. 4 CPC , have absolutely no application to such claim for accounts. Such a claim for accounts is not, strictly speaking, a claim for mesne profits as defined in the CPC. The provisions of or. 20 R 12. CPC. or of Or. 2, R. 4 CPC , have absolutely no application to such claim for accounts. It is true that in a partition suit by a co-sharer the Court generally passes, first a preliminary decree and then a final decree, but this is based on the provisions of sub-rule (2) of Rule 18 cf Order 20, cpc. , which allows the Court afte passing the preliminary decree, to give " such further directions as may be required" ". So far as the Orissa High Court's decision is concerned, in my view, it is not possible to accept the view expressed bv that Court. As pointed out by Ramachandra Iyer, CJ. , in the case of Rasammal v. K. Subbaroua goundar (5), it has not been settled that the claim by one co-sharer against another for compensation in respect of his share of the income received by the other, will arise only after the income has been received. There cannot therefore be any prospective accounting. That would show that the cause of action will arise only on receipt of the income, that is subsequent to the date of suit. Such cause of action cannot possibly exist even before lit accrued. Therefore, it will not be obligatory on the plaintiff in a suit for partition to ask for accounts in respect of future income, when he filed the suit. Having regard to the provisions of Or. 2, R. 4, it is open to the plaintiff in the suit to ask for accounting, but it cannot be said that it is obligatory on the plaintiff to make a claim which prevents him from instituting a fresh suit/ ( 12 ) THE decision of the Madras High Court in AIR. 1951 Mad. 938 and the decision of the Andhra Pradesh High Court in AIR. 1957 AP. 766 do not directly deal with the question which arises for consideration in the present case. ( 13 ) THIS Court has had the occasion to incidentally consider this question in the case of Thimmanna Krishna Hegde v. Gopal Naga Bhat, (1969) 1 Mys. 1951 Mad. 938 and the decision of the Andhra Pradesh High Court in AIR. 1957 AP. 766 do not directly deal with the question which arises for consideration in the present case. ( 13 ) THIS Court has had the occasion to incidentally consider this question in the case of Thimmanna Krishna Hegde v. Gopal Naga Bhat, (1969) 1 Mys. L. J. 333 at page 336 of the said decision, Gopiyallabha Iyengar, J. was inclined to follow the view taken by the High Court of Madras in preference to the view taken by the Orissa High Court. ( 14 ) AS already pointed out, the preponderance of judicial opinion is in favour of the view that a subsequent suit filed for the recovery of mesne profits is not barred. The reason for this has been clearly enunciated in several decisions that a claim for mesne profits does not arise in the same cause of action as a claim for possession. The claim for mesne profits cannot be said to be the same cause of action as for partition or for possession in a case where the claim for mesne profit's arises subsequent to the suit for partition or possession and so that cannot obviously be barred under or. 2, R. 2 CPC. Whether the claim made by a co-sharer is for compensation or for mesne profits, the position is the same. For the compensation which one co-sharer claims against the other, for the income which he has received subsequent to the suit, the cause of action is one which has arisen subsequent to the suit. In that situation, in my view, there can be no bar to the institution of a fresh suit either for accounting or for mesne profits. As already stated, I am in respectful agreement with the view expressed above. The Courts were in error in dismissing the suit on the ground that the suit was barred by the provisions of Or. 2, R. 2 CPC. ( 15 ) THIS appeal is therefore allowed, the judgment and decree passed by the Courts below are set aside and the suit is remitted back to the trial court for a fresh disposal of the suit on merits and in accordance with law. ( 16 ) IN the circumstances of the case the parties will bear their own costs both in this Court and in the lower Appellate Court. ( 16 ) IN the circumstances of the case the parties will bear their own costs both in this Court and in the lower Appellate Court. ( 17 ) THE appellant is entitled to the refund of court fee pad on the memorandum of appeal both in this Court and in the lower Appellate court. --- *** --- .