Rameshwar Singh Bahadur vs Ram Charan Shhu and Others

Kulwant Sahay, J.—This is an appeal by the plaintiff against the final decree in a proceeding relating to the ascertainment of mesne profits. It appears that the plaintiff instituted the suit for possession of certain immovable property and for mesne profits.

There were fourteen defendants in the suit. A decree was passed in favour of the plaintiff on 20th January 1919 awarding him possession and declaring him entitled to mesne profits as against all the defendants which were ordered to be ascertained in a subsequent proceeding. This decree of the trial Court was affirmed on appeal by the High Court on 9th February 1922. In execution of this decree the plaintiff obtained delivery of possession on 7th August 1922, and on 30th March 1926 he made an application before the Subordinate Judge for ascertainment of mesne profits as against the fourteen defendants. A commissioner was appointed and after consideration of the commissioner''s report, the learned Subordinate Judo made a final decree awarding a certain amount of mesne profits to the plaintiff on 15th September 1928. The plaintiff has filed the present appeal against this final decree claiming that the amount of mesne profits allowed by the learned Subordinate Judge is not sufficient and prays that his claim may be decreed in full.

It appears that notices of the appeal on two of the respondents, namely, respondent 1, Babu Raghunath Prasad Singh and respondent 18, Ram Bishun Singh were returned unserved with a report that they were dead. It appeared on an application filed by the plaintiff-appellant for substitution of the heirs of these two defendants that they had died before the passing of the final decree by the learned Subordinate Judge, and this Court thereupon rejected the application for substitution. The result therefore is that two of the defendants against whom the original decree was passed were dead at the time of the making of the final decree for mesne profits and their heirs were not brought on the record either in the Court below or in this Court. Upon these facts a preliminary objection has been taken on behalf of the remaining respondents to the effect that the appeal could not proceed as against them. The contention is that the decree being for mesne profits and a joint and several decree against all the defendants having been passed, it is not open to the plaintiff to proceed in appeal against some of the defendants after leaving out the others so as to enhance the amount of mesne profits decreed by the Court below.

This contention is supported by authority. In Kamala Prosad Sukul Vs. Chandra Nath Pramanik and Others, , the facts appear to be similar. There also a decree had been passed for possession and mesne profits against several defendants and after the passing of the decree as regards mesne profits some of the defendants had died and the appeal had been filed against the dead defendants as well as the surviving defendants, and on an application for substitution of the heir of the dead defendants it was found that they had died more than ninety days before the application for substitution was made, and therefore the application for substitution was disallowed.

In these circumstances it was held that the appeal could not proceed against the remaining respondents. Mukerji, J., observed that although in actions for mesne profits it is open to the plaintiff to proceed against one or some or all of several co-trespassers yet when he has made his choice and brought the suit against all and obtained a decree, then it is the decree in its entirety that may be challenged by him on appeal, and it is not open to the plaintiff to proceed against some of the defeudants, leaving out others against whom the decree had become final. Several reasons have been given in this judgment for this view, and one of those reasons was that a procedure like this would affect the right of the surviving defendants as regards their claim for contribution against the other wrong doers. In an earlier decision of the Calcutta High Court reported in Suttya Nundo Ghosal v. Saroop Chunder Doss [1870] 14 W.R. 76, it was held that the plaintiff was not at liberty, if he had recovered a decree against several persons as joint wrong doers, to single out one or more of these persons as defendants in a suit for wasilat, but must bring a suit against the parties who kept him out of possession, and there also one of the reasons given was that such a procedure would affect the right of the surviving defendants as regards their claim for contribution.

It is no doubt true that in a case of damages a suit can be brought against all or some of the wrong doers and such a suit cannot be defeated on the gronnd that all the wrong doers were not impleaded as defendants. But the present case was not a pure case of damages against wrong doers but it was a case for possession and mesne profits. It is conceded by the learned advocate for the appellant that the suit as a suit for possession could not have been maintained as against some of the defendants and that ail the defendants were necessary parties in the suit. In any event a decree having been obtained awarding mesne profits against all the defendants the authorities referred to above are clear upon the point that the other defendants could not be left out, and the result of leaving out those defendants is that the appeal becomes untenable and cannot proceed against the remaining respondents. The preliminary objection taken by the respondents is supoprted by authority from which I am not prepared to differ. In this view of the case the appeal must be dismissed with costs.

James, J.

I agree.