Pateel Siddalingana Gowd vs Tatana Gowdra Bhimana Gowd and Others

Varadachariar, J.—This appeal raises a question of limitation in the following circumstances.

The plaintiffs are members of a joint Hindu family. The defendant held a mortgage over certain joint family properties but that mortgage had

been executed only by a step-brother of the plaintiffs. In execution of the decree obtained on that mortgage the defendant himself became the

purchaser of the properties, but as the plaintiffs and another deceased brother of theirs were not parties even to the suit on the mortgage, they

resisted the defendant when he attempted to take possession as execution purchaser. The Court ordered their obstruction to be removed by an

order, dated 4th April, 1918; and on the 5th April, the plaintiffs filed a suit under Order 21, Rule 103, Civil Procedure Code, for a mere

declaration. As shortly thereafter, the defendant took possession, that plaint was amended by the addition of a prayer for possession, but it did not

occur to anybody to add a prayer for future profits as well. The suit for possession was ultimately heard by the Subordinate Judge and dismissed

on the 22nd March, 1921, but on appeal the District Court reversed the decree of the Subordinate Judge and gave the plaintiffs a decree for

partition and possession of five-sevenths share in the suit properties. This decree was passed on 13th October, 1921. A second appeal against

that decree was dismissed by the High Court on 3rd October, 1923. In execution of the decree of the District Court the plaintiffs got possession of

their share of the properties by May 1922. On the facts above stated there can be no doubt that the plaintiffs are entitled to five-sevenths share in

the profits received from these properties for four years, i.e., between 1918 and 1922; and on the allegations in the written statement, it is clear

that the profits are received each year some time about March. This suit was instituted only on the 30th March, 1927 and it will be prima facie

barred by limitation if Article 109 applied. The plaintiffs claimed that even under the three years rule of limitation they would be in time if they were

allowed a deduction u/s 14 of the Limitation Act, (1) in respect of the period during which the matter was pending in Second Appeal here i.e.,

between 13th October, 1921 and 3rd October,1923 and (2) in respect of the period during which they were prosecuting certain proceedings by

way of a claim for restitution. These latter proceedings were pending from early in 1924 till 9th March, 1927 when they were ultimately dismissed

by this Court. The learned District Judge has held that the plaintiffs are not entitled to invoke the benefit of Section 14 of the Limitation Act in

respect of either of these periods. Before us Mr. Somayya did not contend that Section 14 could be made applicable to the period of the

pendency of the Second Appeal, but he maintained that the period during which the restitution proceedings were pending would be covered by

Section 14 of the Limitation Act. He relied upon the decision of a Bench of this Court in Venkatragayya Appa Rao v. Murala Sriramulu (1912) 17

I.C. 593 as laying down that the word ''appeal'' in Section 14 would also include ""Revision Petition"" and he argued that in the circumstances of the

present case there could be no doubt that the plaintiffs had been prosecuting the restitution proceedings diligently and in good faith.

For the purpose of the application of Section 14 it is not sufficient merely to say that the word ""appeal"" will include ""Revision Proceedings"" as

well. We must be satisfied that the proceeding was being conducted bona fide and that it failed on the ground of want of jurisdiction or other defect

of a like nature. The definition of ''good faith'' in the Limitation Act itself, will show that it must be the result of due care and attention. It is difficult

to hold that by any reasonable construction of Section 144 of the Code, the present case could have been believed to fall under that Section.

Further, in view of the decisions of this Court in C. Ganapathi Mudaliar Vs. N. Krishnamachari and Others, and Baisnath Lala v. Ramadoss ILR

(1914)Mad. 62 : 27 M.L.J. 640 it is not possible to say that the proceeding failed by reason of want of jurisdiction or other cause of a like nature.

The mere fact that the plaintiffs might have honestly believed that they could get all that they are entitled to by way of proceedings in restitution will

not suffice to give them the benefit of Section 14. We must therefore hold that the learned Judge was right in his view that the plaintiffs are not

entitled to claim a deduction of either of the above periods.

The learned Judge has however held that the suit is governed not by the three years rule of limitation under Article 109 of the Limitation Act but

by the six years rule under Article 120. On this basis, he found that the plaintiffs would be entitled only to two years profits i.e., those received in

March,. 1921, and March, 1922 but their suit would be out of time in respect of the earlier two years i.e., the profits received in March, 1919, and

March, 1920. The appellant-defendant objects to this decree in so far as it allowed the plaintiffs'' claim even for the two later years, the plaintiffs

have filed a memorandum of objections claiming that the lower Court should have allowed profits even for the first two years. As we have already

held that the plaintiffs are not entitled to the deduction of any period u/s 14 of the Limitation Act, the Memorandum of Objections fails. As regards

the appeal Mr. Narasimhachari maintained that the learned Judge was not right in excluding the applicability of Article 109, merely on the ground

that the defendant''s possession in this case was in a sense under an order of a Court of law. This portion of the learned Judge''s judgment is no

doubt open to that criticism and in view of the decisions in Savarimuthu v. Aitkurusu Rowthar I.L.R.(1901)Mad. 103 : 11 M.L.J. 428

Rangaswami Kavundan v. Alagayamman (1914) 2 L.W. 169 and Saraj Ranjan Choudhury v. Premchand Choudhury 22 C.W.N. 263 it will not

be possible to maintain that position. But this conclusion is nevertheless right on another ground. The suit is not really one for ''mesne profits'' as

ordinarily understood nor even one of the description more fully set out in the first column of Article 109. According to the plaintiffs'' case, they

were entitled only to five-sevenths share in the properties and the defendant as purchaser of the mortgagor''s interest would be entitled to two-

sevenths-share in the property so that the parties were really in the position of co-owners. The first column of Article 109 speaks of property

belonging to the plaintiffs and also of the profits thereof having been ''wrongfully'' received by the defendant. Though the expression mesne profits is

not used, this description in the first column corresponds very closely to the definition of mesne profits in Clause (12) of Section 2, Civil Procedure

Code. Neither of the conditions assumed by the first column can properly apply as between co-owners, because in such a case the property

cannot be said to belong to the plaintiffs alone nor could the profits received by the other co-owners be held to have been wrongfully received by

them. That is why, in several cases, it has been held that the proper conception even in respect of a claim in the nature of damages as between co-

owners is that it is a claim for compensation and not a claim for mesne profits (See) (1890) L.R. 17 I.A. 110 (Privy Council) . Mr.

Narasimhachari, however contended that even as between co-owners exclusive possession by one may sometimes become wrongful especially

when he is in possession in assertion of a right to the whole and denies the title of the other co-owners to any share. He relied upon a passage in

AIR 1929 300 (Privy Council) is guardedly expressed as their Lordships speak of the possession being ""in one sense"" wrongful, for otherwise

there will be no claim to compensation at all. It will not be fair to interpret that sentence to mean that the claim is really one of the kind

contemplated by Article 109. As regards the case in Nrityamoni Dassi v. Lakhan Chandra Sen I.L.R.(1916)Cal. 660 : 30 M.L.J. 529 it no doubt

lays down that from the time that a co-sharer asserts exclusive claim or collects the income in his own exclusive right, limitation will begin to run;

but we are now dealing with the question of the period of limitation and not with the starting point. The judgment of a Full Bench of this Court in

Yerukola v. Yerukola I.L.R.(1922)45 Mad. 648 : 42 M.L.J. 507 also lays down that as between co-sharers, the proper article applicable is

Article 120 and that limitation will begin to run from the time that there is an assertion of exclusive title or what may amount to ouster. The cases

cited by Mr. Nara-simhachari in respect of the character of the possession held by alienees from a co-sharer, viz., Muttusami v. Rama Krishna

I.L.R(1889)Mad. 292, Sheik Abdul Gafur v. Ashamath Bibi (1919) 11 L.W. 31 and Thiagaraja Pillai v. Appavoo Pillai (1930) M.W.N. 246 do

not carry this part of the case any further. On the principle recognised by the Full Bench in Yerukola v. Yerukola I.L.R.(1922)Mad. 648 : 42

M.L.J. 507 they only show that limitation will begin to run as from the date when the alienees took possession, but they do not show what the

period of limitation applicable is - whether it is under Article 109 or Article 120. The learned Judge has relied upon Perumal Udayar v. Krishnama

Chettyar I.L.R.(1894)Mad. 251 but no question of limitation arose in that case, because the suit was held to have been instituted within three years

of the plaintiff''s attainment of majority. Similarly the observations in (1888) ILR 16 397 (Privy Council)

The principle of the Full Bench judgment in Yerukola v. Yerukola I.L.R.(1922)Mad. 648 : 42 M.L.J. 507 , is clearly applicable here and the

suit must be held to be governed by the six years rule of limitation prescribed by Article 120.

On behalf of the appellant, Mr. Narasimhachari also took exception to the amount awarded by the Court below in respect of the mesne profits

for the second period of two years. He contended that the defendant had been misled by some observations of the learned Judge and that he had

not therefore examined some more witnesses whom he intended to examine. The defendant''s affidavit on this point is contradicted by the affidavit

filed by the learned Counsel who appeared for the plaintiffs in the lower Court. But even apart from that, the affidavit itself suggests that the

evidence available, at any rate from public records, related only to the year 1920-1921, and in the written statement also, it was only that year that

was claimed to have been a bad year. That fact was admitted even in the plaint and the learned Judge has taken due note of it and awarded a

much smaller amount for that year than for the next year. In these circumstances, we see no force in the point about the non-examination of some

witnesses whom the defendant intended to examine. Mr. Narasimhachari also took exception to the statement of the learned Judge that only D.W.

1 spoke to the failure of the crops and not any other witness. But the statement of the other witnesses is quite vague and we do not see any reason

to differ from the learned 3udge in his appreciation of the evidence as to mesne profits.

The result therefore is that the appeal and the memorandum of objections are both dismissed, but in the circumstances without costs.