Subbaroyar vs Kottaya Goundan

Having regard to Section 54, paragraph 2, of the Transfer of Property-Act and Section 55, Sub-section (4), Clause (a), we are disposed to

agree with the argument advanced with much ability by the appellant''s learned Vakil that the respondent was not entitled to possession or mesne

profits as such before the date of the execution of the registered conveyance in his favour. He is, however, entitled to sue for compensation for the

breach of the contract to convey, in addition to suing for the execution of the conveyance, such compensation naturally being the value of the

mesne profits which the plaintiff could have obtained between the date when the breach of contract took place and the date when the conveyance

is actually executed.

The plaintiff did pray for that additional relief of compensation in the former suit of 1910 (though he inaccurately called the relief as one for

mesne profits) and under Order XXIII of the Civil Procedure Code, he withdrew his prayer for that relief with liberty to bring a fresh suit for the

same.

The present suit is brought substantially for the said claim so withdrawn with liberty.

While we agree with the Subordinate Judge that the claim for the value of the profits for the period between 12th January 1910 and 15th July

1911 is a claim for damages for the breach of contract, we do not agree with him that the claim for the value of the profits for the period between

15th July 1911 and October 1912 is strictly one for mesne profits. We do not think that the decree dated 15th July 1911 could pass title to the

land itself or could give the plaintiff the right to claim mesne profits as such from that date and prior to the execution of the registered conveyance.

But this error of the Subordinate Judge has not affected the merits of the order of remand.

As regards the question of limitation, we do not think that it is so clear that the Subordinate Judge ought to have decided it against the

respondent and dismissed the suit on that ground. His remanding of the suit in order that the Court of first instance might deal with that question

along with the other questions not dealt with by the District Munsif, was not illegal.

We, therefore, dismiss the appeal with costs.