JUDGMENT-Both the Courts held that the plaintiffs' present suit for possession of immovable property was barred under Order 2, Rule 2 Civil Procedure Code as this relief, though available, was not included in the earlier suit for mesne profits relating to the same property. The question that arises is whether these decisions are correct having regard to the twin provisions of Order 2, Rule 2 and Order 2, Rule 4 of the Civil Procedure Code. My view is that they are not. 2. Before giving reasons in support of this conclusion it will be necessary to set out the skeleton facts. 3. One Kisan was owner of a field Khasra No. 15, area 11.99 acres at mouza Khapri, Tahsil Umrer, in District Nagpur. His son Bapurao died in the year 1941 and Kisan died 4 years thereafter leaving behind him widow Laxmi, daughter-in-law Gangubai (Original defendant No. 1) and daughters Ani, Tulshi and Tani (original plaffs.). Laxmibai executed a gift deed in respect of the suit property on 8th November 1952 in favour of the plaintiffs. Daughter-in-law then brought a regular civil suit No. 22-A of 1953 against the plaintiffs and their mother Laxmi for a declaration that the gift deed was not binding on her. There was mutual settlement and on that basis, the suit was disposed of on 13th April 1954. One of the terms of the compromise was that the gift deed was not binding on 1/2 share of Gangubai and that she should be entitled to that share as limited interest till her life. The case of the plaintiffs has been that in May 1954, the property was mutually divided by metes and bounds into two portions. The northern, 1 /2 portion was allotted to the share of the plaintiffs while the southern to Smt. Gangubai. The original second defendant Vasant, the adopted son of Gangubai, and Gangubai with the help of their associates disturbed the possession of the plaintiffs and destroyed the crops and since then they are in possession of the entire field. Regular Civil Suit No. 24-B of 1954 was filed by the plaintiffs for claiming share of their income for the year 1952-53. It was decreed on 18th July 1960. Subsequently, Regular Civil Suit No. 12-B of 1955 was filed for the similar relief for the year 1954-55 and it was decreed by compromise on 28th June 1962. Regular Civil Suit No. 24-B of 1954 was filed by the plaintiffs for claiming share of their income for the year 1952-53. It was decreed on 18th July 1960. Subsequently, Regular Civil Suit No. 12-B of 1955 was filed for the similar relief for the year 1954-55 and it was decreed by compromise on 28th June 1962. The plaintiffs got a decree for Rs. 200 and Rs. 120 respectively in those two suits. The present suit being Civil Suit No. 62 of 1963 is for damages for the subsequent period and also for the relief of possession of northern 1/2 portion or in the alternative for a preliminary decree for partietion and separate possession of 1 /2 share. 4. The first defendant Gangubai partly admitted the plaint allegations. She also raised a contention that in deference to the desire of her husbands she had taken second defendant in adoption, on 3rd June 1954. In Regular Civil Suit No. 53-A of 1954, this adoption was held to be illegal and was set aside. Subsequently, the Hindu Adoption and Maintenance Act, 1956, was brought on statute book investing a widow with a right to adopt. She, thereafter, adopted the second defendant on 18th January 1962 according to -the custom of the caste. Her contention was that the defendant never lost possession of the property. Thus, though the physical partition was disputed, the compromise decree was admitted. Second defendant raised a contention that the said compromise was not binding on him as he was not party to the same. Since the time of his adoption, he became an absolute owner of the properties of his adoptive mother. These defendants further raised a contention that the suit was barred in terms of provisions of Order 2, Rule 2 of the Civil Procedure Code. The trial Court has answered almost all issues in favour of the plaintiffs mainly on the basis of admitted positions and documentary evidence on record. However, the story as regards oral partition put up by the plaintiffs was not accepted. It held that the plaintiffs were entitled to mesne profits at the rate of Rs. 100 to which the claim was restricted in view of the mesne profits granted for the earlier years. However, the story as regards oral partition put up by the plaintiffs was not accepted. It held that the plaintiffs were entitled to mesne profits at the rate of Rs. 100 to which the claim was restricted in view of the mesne profits granted for the earlier years. Second defendant's objections to the effect that the compromise decree was not binding on him was negatived in view of section 12 of the Hindu Adoption and Maintenance Act, 1956, holding that the adopted son had no right to challenge the decree which was passed before his adoption. 5. In spite of these findings, the suit was dismissed as not maintainable, relying upon the provisions of Order 2, Rule 2 of the Civil Procedure Code and the decision of this Court in the case of Channappa Girimalappa v. Bagalkot Bank1 and the case of Dwarkadas Nathmal v. Balkrishna2. The finding is that earlier claim for mesne profits as well as present claim for possession is based on the same event of alleged dispossession in the year 1954 to which reference is made not only in the two previous suits but also in the present suit, Thus, the relief for possession was available when the two previous suits were filed and as no relief regarding possession was claimed, it could not be claimed in the subsequent suit. Consequently, the whole suit was dismissed including for the relief for mesne profits for the subsequent period 1960-61 to 1962-63. 6. Being aggrieved by the decree of dismissal of the suit, the plaintiffs preferred appeal in the District Court at Nagpur. Upholding the decision based on Order 2, Rule 2, Civil Procedure Code, the appeal was dismissed and the present second appeal is directed against these concurring judgments. Now, there cannot be any manner of doubt that in case Order 2, Rule 2 of the Civil Procedure Code is examined in isolation, the present suit for possession will be hit by the said provisions. This rule in terms lays down that in case a person entitled to more than one relief in respect of the same cause of action omits, except with the leave of the Court, to sue for all such reliefs, he shall be precluded from suing for the omitted relief. This rule in terms lays down that in case a person entitled to more than one relief in respect of the same cause of action omits, except with the leave of the Court, to sue for all such reliefs, he shall be precluded from suing for the omitted relief. The next rule refers to ‘Joinder of causes of action' providing, inter alia, that save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly, and the plaintiffs having causes of action in which they are jointly interested against the defendants may unite such causes of action in the same suit. Then follows Order 2, Rule 4 with which we are chiefty concerned. It reads thus: "No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except- (a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof; (b) claims for damages for breach of any contract under which the property or any part thereof is held; and (c) claims in which the relief sought is based on the same cause of action; Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property." 7. The perusal of the opening words of Order 2. Rule 4. clearly indicates that this Rule treats the cause of action for recovery of possession and cause of action for recovery of mesne profits and other causes of actions referred in items (a), (b) and (c) separately. If that was not so. there was no reason for specifically permitting the joining of the claim for mesne profits in a suit for recovery of immovable property. Except for such provision. the general prohibition of uniting the other cause of action in the suit for recovery of immovable property would have come into operation even in such cases. The last exception (c) in Rule 4 refers to the claims in which the relief sought is based on the same cause of action and provides for its joining with a suit for recovery of immovable property. The last exception (c) in Rule 4 refers to the claims in which the relief sought is based on the same cause of action and provides for its joining with a suit for recovery of immovable property. No doubt, Order 2, Rule 3 permits joinder of several causes of action but as the opening sentence indicates, it is subject to the contrary provision. The very scheme of these Rules under Order 2 indicates that the Legislature had no intention to permit in principle any other cause of action with a suit for recovery of immovable property. The underlying policy behind Rule 4 is obviously this. However, exception has been made with relation to three items of causes of action (a), (b) and (c) as enumerated in the said rule. In terms therefore, a claim for mesne profits has been treated as distinct and separate from the cause of action for recovery of immovable property. 8. It will not be out of place to take note of the fact that different limitations are prescribed for claiming mesne profits and possession of immovable property. In the former case, it is three years and in the latter, it is 12 years. Mesne profits accrue from day to day and would be continued. It is also pertinent to note that the facts which would constitute the cause of action in case of mesne profits are not necessarily identical in cause of action for recovery of immovable property. For decreeing the suit for possession, it would be enough if the plaintiff proves his title and entitlement. But in a case relating to mesne profits, he has to prove the period during which the so called unlawful possession of the defendant continued and deprivation of the property to which the plaintiff was entitled was made. The two wrongs are different in nature, the first arising when the trespass is committed and the second when the mesne profits should have been receivable by the plaintiff. 9. Even if the Legislative history of these provisions is stressed, it would be seen that always they have been treated as separate causes of action. It was for the first time by a Common Law Procedure Act, 1852, that a suit for mesne profits could lie without first obtaining a decree for recovery of immovable property. Before that this was not permissible. It was for the first time by a Common Law Procedure Act, 1852, that a suit for mesne profits could lie without first obtaining a decree for recovery of immovable property. Before that this was not permissible. Code of 1859 contained section 10 which in turn provided that a claim for recovery of immovable property and a claim for mesne profits arising out of that property should be distinct within the meaning of sections 8 and 9 of the said Code which dealt with joinder of causes of action the same suit. When this Code was remodeled in 1887 after the Judicature Act and the rules of practice framed there-under had come into force in England. The language of these rules was in many instances substituted for the language of the Code of 1859. Section 10 was dropped out and it was replaced by section 44. Order 2, Rule 4 is equivalent to section 44. It will thus be clear that despite some verbal changes, whenever Civil Procedure Code was remodelled, the policy underlying these provisions remained the same, and in effect Order 2, Rule 4, like its ancestor section 10 of the Code of 1859, treats these two causes of action as distinct and separate. 10. There is no doubt that in Channappa's case, the learned Chief Justice has passed the following observations :- "It seems to me that it may well be that the expression 'cause of action' in Order.2, Rule 2 has a wider meaning than the expression in Order 2, Rule 4. 10. There is no doubt that in Channappa's case, the learned Chief Justice has passed the following observations :- "It seems to me that it may well be that the expression 'cause of action' in Order.2, Rule 2 has a wider meaning than the expression in Order 2, Rule 4. Moreover, the provision in the latter rule may have been 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." However, in the case of Ramo Kallappa Pujari v. Saidappa Sidrama Pujari3, the following observations were made by the same learned Chief Justice: "The language of Order 2, Rule 4 which provides that no cause of action shall, unless with the leave of the Court, be joined with a suit for recovery of immovable property, except "(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof", certainly suggests that the Legislature regarded a claim for possession of immovable property and a claim for mesne profits in respect of that property as being separate causes of action." The case of Dwarkadas Nathamal (cited supra) related only to the point relating to the mesne profits for different arrears. However, reference is made in this decision to the observations of the learned Chief Justice in Channappa's case. 11. Shri Dhabe, the learned counsel for the appellants invited myattention to the decision in Shankarlal v. Gangabise1l4• It appears that the Full Bench has overruled the decision given in Channappa's case holding that there was absolutely no justification whatsoever for coming to the conclusion that sub-rule (a) may have been inserted ex abundanti cautela without intending to lay down that the causes of action for possession and for mesne profits on arrears of rent accruing were distinct. Reference is made in this connection also to the decision in Rama Kallappa's case. Shri Dani, the learned counsel for the respondent, on the other hand contended that Shankarlal's case had no application to the facts' of the present case inasmuch as in point of fact in that case two causes of action were treated as different one on the basis of lease and the other on the basis of title. No doubt, Shri Dani is correct to some extent. No doubt, Shri Dani is correct to some extent. But, Full Bench decision has not only proceeded on facts of that particular case, but has also dealt with the principles of law as will be clear from the following observations: "We think that it is clear beyond any doubt that claims for damages and claim for mesne profits are regarded as distinct and separate causes of action from the cause of action for recovery of immovable property and Order 2, Rule 4, says that they may be joined together, whereas otherwise they could out be joined together because of the general principle contained in the opening words of Order 2, Rule 4." 12. Shri Dani also invited my attention to certain observations in paragraph 39 of the said judgment while dealing with the Supreme Court decision on the point in the case of Gurubux Singh v. Bhooralal5. In this case, the Supreme Court did entertain it suit for possession and mesne profits after a previous suit for recovery of mesne profits only. The bar of Order 2, Rule 2 was urged, but the Supreme Court did not decide the question as no sufficient material for basing a plea of Order 2, Rule 2 was placed. It is in this connection that observations were made that it is not in every case as a matter of law that the claim for mesne profits and the claim for possession would be either one and the same cause of action or different causes of action. In my judgment these observations, apart from the context in which they were made, do not in any way reduce the force of the observations and findings reproduced above, and the ratio-decidendi. 13. Under these circumstances, even though the suit for possession is based on the same events, it will make no difference in law, and the dismissal of the suit for possession under Order 2, Rule 2 is completely misplaced and illegal. 14. In normal course, the matter should have been sent to the first appellate Court for recording findings on merits. But, this will not serve any purpose. On the contrary it will unnecessarily prolong the life of litigation and the rightful persons would be deprived of their genuine claim further. 17 years are already over since the institution of the suit. In normal course, the matter should have been sent to the first appellate Court for recording findings on merits. But, this will not serve any purpose. On the contrary it will unnecessarily prolong the life of litigation and the rightful persons would be deprived of their genuine claim further. 17 years are already over since the institution of the suit. As the lower Court has very rightly remarked, the suit does not depend upon any appreciation of evidence. On merits, many positions are admitted and many supported by documentary evidence on record. The only finding which depends upon appreciation of oral evidence is against the plaintiffs and that is to the effect that oral partition and physical division in the year 1954 has not been proved. Accepting this finding and other findings on merits and reversing the decrees passed by the two Courts below, I allow this appeal and pass the following order. 15. The plaintiffs' suit for partition and separate possession of their 1/2 share in the suit field as well as claim for a sum of Rs. 300 and costs is decreed. However, under the circumstances, I propose to make no order as to costs. Appeal allowed.