Kali Prasad Singh vs Faujdar Singh and Others

Ross, J.—This is an appeal by the defendants against a decree of the Subordinate Judge of Saran confirming a decree of the Munsif of Chapra awarding the respondents mesne profits. It appears that the plaintiffs had brought a suit for redemption in 1922 and in that suit they had claimed mesne profits. There was a decree for redemption, but the claim for mesne profits was held not to be established. The plaintiffs then brought the present suit claiming mesne profits from the date of the earlier suit until the date of possession and this suit has been decreed.

The question is whether the suit is maintainable. This question has been answered in the affirmative in Second Appeal No. 53 of 1927, Harnandan Rai v. Baliram-Prasad. In that case there was a difference of opinion between my learned brother and Mr. Justice Das and the case was finally decided by Mr. Justice Wort who held, in agreement with my learned brother, that such a suit was maintainable. It is sought to distinguish that decision from the present case inasmuch as in that case the question of mesne profits had been left open and it is said that in the present instance the question of mesne profits had been decided against the plaintiffs. Now it is true that in the plaint in the original suit the plaintiff had claimed a specific sum of Rs. 905 3-0 as mesne profits from the date of the deposit of the amount of the mortgage until the date of suit together with mesne profits till the date of recovery of possession, the estimate of which was to be given afterwards, and it is also true that by the decree both of the trial and of the Appellate Courts the claim for mesne profits was dismissed. It appears, however, from the judgments of both the Courts that the Courts read the plaint as a claim for Rs. 9053-0 for, mesne profits only, and the ground upon which the claim was dismissed was not that the plaintiff was not entitled to mesne profits, but that he had not proved how much mesne profits he was entitled to. Now that ground could only relate to the mesne profits which had already accrued due on the date of suit, because for subsequent mesne profits no evidence at that stage could have been given. Consequently, en the construction of the judgment of both the Courts and of the decrees it must be taken that the claim for future mesne profits had not been adjudicated upon and consequently, the case falls within the decision above referred to. The learned Advocate for the appellant relies upon the decision in Atmaram Bhaskar v. Parashram Balal 58 Ind. Cas. 419 : 44 B. 954 : 22 Bom. L.R. 982. Now that case was considered by my learned brother who preferred to follow the decision in Doraisami Aiyar v. Subramania Aiyar 42 Ind. Cas. 929 : 41 M. 188 : 22 M.L.T. 484 : 33 M.L.J. 699 : (1917) M.W.N. 847 : 6 L.W. 784 (F.B.) and consequently it is not open to this Court now to follow what was not followed then. I may mention that the same view has been taken recently in the Calcutta High Court in, Bipul Behari Chakravarty Vs. Nikhil Chandra Chakravarty and Others, by Dwarka Nath Mitter, J. The appeal must, therefore, be dismissed, with costs.

Fazl Ali, J.

I agree.