Krishna Rambhau vs Dharma Kathod Kapse

V.S. Deshpande, J.—However, Mr. ..Karnik strongly urged that Article 109 can-not apply to the facts of the case inasmuch as the said article is applicable (sic) to such plaintiffs to whom the immovable property in dispute belonged. He drew my attention to the wording of Column 1 of the said Article which provides limitation for "suit for profits of the immovable property belonging to the plaintiff" which have been wrongfully received by the defendant. According to Mr. Karnik, it is not anybody''s case that the said immovable property ever belonged to the plaintiff. The present plaintiff was and is only a tenant of the land. The said land can never be said to have belonged to the tenant-plaintiff with all the sweeping provisions of the Tenancy Act. The land even now happens to be in possession of the tenant. It is, therefore, strenuously argued by Mr. Karnik that this Article 109 can have no application to the facts of the case and, therefore, the learned Assistant Judge was perfectly justified in holding that the plaintiff''s suit was not governed by Article 109 of the Limitation Act.

Now, at first sight this argument appears to be attractive. However, the context in which the word "belonging" is used in the first column of this Article, does not seem to convey any element of ownership. This word "belonging''* has not been defined either in the Limitation Act or anywhere else. Prima facie it is capable of conveying the sense of ownership of the immovable property. But it can also mean, in the context, "merely a right to possess". Thus, words "immoveable property belonging to the plaintiff" may mean the one of which the plaintiff is the owner; and also may mean such property, to the possession and profits of which plaintiff has a title without being its owner. It may also thus mean that a property belongs to a man who has a right to use it as of right for some period although it does not belong to him.

Analysing the language of this Article, one cannot but find that the governing idea of this Article is to deal with suits for recovery of profits which should have as of right, gone to the plaintiff, but have been wrongfully received by the defendant. The profits contemplated are in regard to the immovable property. A person need not necessarily be the owner of the immovable property to be rightful owner of the profits thereof. It is enough that he has some title to the lawful possession thereof. A lawful possession also entitles the possessor to claim the profits rightfully even if such possessor ia not the owner. Now, immovable properties are capable of being possessed lawfully not only by the owners, but also by the lessees, the licensees and even by the mortgagees or by Receivers. As long as possession of such a licensee, an owner, a lessee or a mortgagee is legal, each one of them is entitled to profits of the property as of right as against everyone who has no title to possession. If a licensee is in lawful possession of the immovable property then it is the licensee who can claim the profits thereof, Even, the owner of the property, shall be deemed to have wrongfully received the profits if at the relevant time, he has no title to possession and if such title vests in licensee, lessee or mortgagee. In that context it is the licensee, mortgagee or lessee to whom the immovable property can be said to have belonged. A mortgagee in lawful possession of the land on the strength, of the mortgage dated is sometimes forcibly dispossessed by the mortgagor without recourse to law. The profits of the land which normally should have gone to the pocket of the mortgagee as lawful possessor are thus appropriated wrongfully by the owner-mortgagor to which he cannot be said to have been entitled, notwithstanding that he is the owner of the property. In that event, it is the mortgagee to whom the said immovable property can be said to have belonged. It is, thus, clear that the word "belonging" used in this Article does not necessarily import an element of ownership. It only imports the element of title to possession of the immovable property from which, a right to appropriate profits springs. It is, therefore, not necessary in all cases that the plaintiff who claims to have been wrongfully deprived of the profits of the land, must necessarily be the owner of the property. In a judgment reported in Govindrav v. Jiwanji (1900) 2 Bom. L R 201, a Division Bench of this Court was dealing with a claim for mesne profits, set up by the mortgagee against the mortgagor-owner. It was found in the said case that the mortgagor had unlawfully dispossessed the mortgagee and deprived him of the profits of the land. The mortgagee filed a suit for the recovery of the mesne profits which were wrongfully appropriated by the mortgagor, the owner of entire property. Notwithstanding that the owner of the land was not the plaintiff and the mortgagee was claiming such mesne profits against the owner of the land, it was held by the Division Bench that it is this Article 109 of the Limitation Act, which governed the said suit. In Dullabhbhai Hansji v. Gulabchand Rupaji 1938 Bom. 107 : 40 Bom. L R 100, a receiver appointed by the Insolvency Court was claiming mesne profits from the assignee from the insolvent under a sale deed executed two years before respondent was adjudged as an insolvent. It was held that Article 109 governed the suit. It is true that the words "immovable property belonging to the plaintiff" in Article 109 were not directly interpreted as no such question seems to have been raised before the Courts. But even though the receiver could not have claimed to be the owner of the property, the Court still held that the suit was governed by Article 109 of the Limitation Act. In another judgment of the Division Bench of the Calcutta High Court in Shurnomoyee v. Pattarri Sirkar (1878) I L R 4 Cal 625 the Division Bench was dealing with the claim of the tenant of the land against the land-lord for the mesne profits for the period of the landlord''s possession which was alleged and found to be unlawful. The Division Bench held that such claim by the tenant as against the landlord for mesne profits was governed by Article 109 of the Limitation Act. It is true that there again the words "immovable property belonging to the plaintiff" in the first column of Article 109 had not directly come up for consideration. However the discussion of the point at page 628 clearly shows that while holding that Article 109 of the Limitation Act was applicable, the wording of this Article was present to their minds. The Court observed at p. 628 "in this case the standing crops were property of the plaintiff''*. The "plaintiff" in this para, had clearly a reference to the lessee who was claiming the mesne profits in regard to the crops that were removed by the landlord unlawfully and to which the plaintiff was claiming title by virtue of being a lessee of the land. Then there is another Division Bench judgment of the Allahabad High Court reported in Ram Sarup v. Harpal (1916) I L R 39 All. 200. There, the mortgagee was wrongfully thrown out of the mortgaged property by the mortgagors. The mortgagee, therefore, claimed mesne profits during the period in which the mortgagee was dispossessed and the mortgagor remained in possession wrongfully. It was argued before the Division Bench that Article 109 refers to the claim for profits of the immovable property "belonging to the plaintiff" and that notwithstanding that the plaintiffs were the mortgagees with possession, still the property cannot be said to have belonged to them and the property admittedly belonged to the defendants who were the mortgagors. Dealing with this contention, the Division Bench rejected the argument holding that (p. 203):

If property is granted to another by lease for, say, a period of 20 years, the property is clearly the property of the lessee so as to entitle him to bring a suit for mesne profits if he is wrongfully deprived of them during the term of the lease1.

With respect, I find myself in agreement with these observations. The same principle was followed by the Division Bench of Madras High Court in the case reported in Md. Shamsgoya v. Otnandu Pillai A I R 1924 Mad. 224, though I do not find any detailed discussion of the point in the report. There is thus, considerable authority for holding that the words "belonging to the plaintiff" do not necessarily import an element of ownership in the first column of the said Article. It is not necessary, therefore, that the plaintiff who claims the mesne profits on the basis of the defendant having wrongfully recovered the same should be the owner of the property. Not the ownership but the title to the possession of the immovable property appears to be the central theme of this Article. In this view of the matter, the contention of Mr. Karnik fails.

In my opinion, therefore, this suit is governed by Article 109 of the Limitation Act. The trial Court was right in holding that the suit was time-barred. The learned Assistant Judge erred in reversing this finding and holding that Article 120 of the Limitation Act was applicable.

I may add that the learned advocates appearing on either side did not raise any point as to whether this suit claim was cognizable by the civil Court or not and I was not called upon to decide the said point.

The result is that the appeal is allowed, decree of the Assistant Judge is set aside and that of the trial Court is restored. In the circumstances of the case, however, there will be no order as to costs throughout.

Appeal allowed.