Tadepalli Ramiah alias Ramasastri vs Madala Thathiah and Another

Venkataramana Rao, J.—This second appeal arises out or a suit instituted by the plaintiffs for recovery of mesne profits for faslis 1337 to

1339 from the defendants. The District Munsiff of Guntur gave a decree but it was reversed by the Subordinate Judge of Guntur on the ground that

the action is barred by Order 2 Rule 2 Civil Procedure Code. The plaintiffs filed a suit (O.S. No. 1013 of 1927) on the file of the District Munsiff

of Guntur for recovery of possession of the land in respect whereof the mesne profits are claimed. They also claimed in that suit mesne profits both

past and future, but while giving a decree in plaintiffs favour, the District Munsiff did not pass a decree for mesne profits subsequent to suit and the

reason given by him is thus stated in paragraph 30 of his judgment in the said suit:

No provision is made for recovery of subsequent profits, as it was represented that the 1st plaintiff had filed a suit in the Sub-Court, Guntur, for

recovery of them.

The suit referred to in the said order was filed by the plaintiffs during the pendency of the above action in the Sub-Court, Guntur, for recovery of

mesne profits for the said three faslis and for damages but after the decree in O.S. No. 1013 of 1927 the claim for damages was given up in

consequence whereof the Sub-Court, Guntur, returned the plaint filed before it for presentation to the District Munsiff of Guntur on the ground that

it had no jurisdiction to try the suit, and accordingly the plaint was re-presented and filed before the District Munsiff of Guntur and it was there

numbered as O.S. No. 637 of 1931. It is this suit which has now come up in second appeal.

According to the decisions of our High Court, the suit would be sustainable, but the learned Subordinate Judge was of the opinion that the

recent decision of the Privy Council in Naba Kumar Hazra v. Radhashyam Mahis (1931) 61 M.L.J. 294 (P.C.) was conclusive on the matter. The

construction placed by him on the said decision was that a claim for mesne profits such as laid in the plaint in this suit arises out of the same cause

of action for possession. He therefore felt himself compelled to decide against the plaintiffs. This view is also pressed by Mr. Jagannadha Das on

behalf of the respondents before me and he contends that the Privy Council decision must be held to have overruled all the decisions of this High

Court as well as the other High Courts on this point. It is therefore necessary to see if the decision of the Privy Council leads to the said result. On

the careful reading of the said case it seems to me that no question of mesne profits was involved in the said case at all. The facts of the said case

were as follows: A pleader who was appearing for judgment-debtors in a mortgage suit had the decree in the said suit purchased benami in the

name of his wife and began to execute it. The judgment-debtors having come to know the said fact filed a suit to have it declared that it was really

a purchase benami for the pleader and that the pleader was the real purchaser and prayed for appropriate reliefs in the action. During the pendency

of the suit, the property was sold, in consequence whereof necessary amendments were permitted to be made in the plaint in and by which they

were enabled to claim a conveyance of the said decree and the said property with necessary accounts and the plaintiffs in that suit were given a

decree for possession and it was pointed out in the judgment of the Privy Council that the claim for accounts was abandoned. Subsequent to the

decree for possession, some of the judgment-debtors instituted an action for recovery of rents and profits of the property received by the

purchaser after the purchase and before the conveyance. The question was whether this claim was barred under Order 2, Rule 2, Civil Procedure

Code. Their Lordships of the Judicial Committee were of the opinion that it was a relief which could have been claimed in the previous suit. The

basis for their Lordships'' opinion was that by reason of the purchase of the decree and the property the purchaser became a trustee for the

judgment-debtors and the claim for rents and profits formed part of the claim arising out of the cause of action in the former suit. The action was

not construed as one for mesne profits. There was no question of wrongful possession by the purchaser because he must be deemed to have been

in possession on behalf of the judgment-debtors and his possession was their possession. The claim was in substance to recover the property

which was held by the purchaser on their account and the claim for profits was only as part of the claim for restoration of their property. It is one

and the same claim and the cause of action was considered to be one and the same. Mr. Jagannadha Das laid considerable emphasis on the

following observations of their Lordships of the Privy Council, in that case:

The cause of action in the present suit is, their Lordships think, clearly the same as in the previous suit; the right to the rents and profits vested on

the same foundation of facts and law as the right to have the purchase of the decree and of the properties declared to be purchases for the

mortgagors.

The argument of Mr. Jagannadha Das is that the claim; for mesne profits in this case must be deemed to rest on the same foundation of facts and

law as the right to seek possession of the property and the suit must be held to be barred. It seems to me that this contention is untenable. A claim

for possession and a claim for mesne profits are distinct causes of action. In the Full Bench decision in Ponnammal v. Ramamirda Aiyar (1914) 28

M.L.J. 127 : ILR 38 Mad. 829 in explaining the history of and development of an action for mesne profits, the learned Judges observe:

Claims for possession and claims for mesne profits have always been treated as separate causes of action in the Code of Civil Procedure,

following in this the English Law. At common law claims for ejectment and for mesne profits were separate causes of action.

In an action for ejectment it is the specific restitution of the land that is sought but in an action for mesne profits what is recovered is all loss

suffered by him during the period of his dispossession. The cause of action arises from day to day and is a continuing one. Salmond in his book on

the Law of Torts thus explains the nature of the action and the doctrine on which it is founded:

The action for mesne profits was a particular form of the action of trespass quare clausum fregit; its proper title was the action of trespass for

mesne profits. Whether the dispossession had or had not been effected by way of trespass, the claim for mesne profits was always in form a claim

for damages for a continuing trespass upon the land. Such a claim was based upon and rendered possible by the doctrine of trespass by relation....

That is the ordinary doctrine on which actions formesne profits are founded; you look to the date of the title; and after entry consider the party

entitled to have been then in possession.

He further points out that:

The action would not lie until after the plaintiff had re-entered and recovered the possession of the land. This re-entry might be by his own act, or it

might be by way of judgment in ejectment and execution issued thereon. But one mode or the other was an essential condition precedent to the

action.

Of course, the rigour of the common law was modified, by the Common Law Procedure Act and the rules of the Supreme Court, whereby a

claim for mesne profits has been permitted to be combined in an action for ejectment but still the principle holds good that an action for mesne

profits will not lie without an action of ejectment and before the recovery of the land. Whatever might have been the opinion of the High Courts in

regard to the claim for past profits, so far as the claim for profits subsequent to the institution of the suit is concerned, there was never any doubt

and almost all the High Courts have taken the view that it does not arise out of the same cause of action as a claim for possession. In the Full

Bench decision in Doraisami Aiyar and Others Vs. T. Subramania Aiyar and Others, where a person claimed past profits, that is, profits prior to

the institution of the suit and future mesne profits, that is, profits subsequent to the institution of the suit, and the decree was silent as regards the

future mesne profits, a second suit was held to lie in regard thereto. Since the decision of the Privy Council in Naba Kumar Hazra v. Radhashyam

Mahis (1931) 61 M.L.J. 294 (P.C.) the same view has been taken in most of the High Courts, namely, even though a prior suit had been instituted

for possession, a second suit for mesne profits accrued since the institution of suit would lie. Vide (1) In re Kantheeswaram Ekanathalingaswami

Koil through its trustee In Re: Kantheeswaram Ekanathalingaswami Koil, , (2) Rama Kallappa v. Saidappa Sidrama ILR (1934) 59 Bom. 454 and

(3) Ram Karan Singh v. Nakchhed Ahir ILR (1931) All. 951. In the Allahabad case Sir Sulaiman, C.J., clearly explains the nature of the action

and why Order 2, Rule 2, Civil Procedure Code, will not apply. He observes thus at page 957:

The object of Order 2, Rule 2, is the prevention of the splitting up of one cause of action and not to compel the plaintiff to seek all the remedies

which he can claim against the same defendant on account of several causes of action in one and the same suit. In one case, the multiplicity of suits

is to be avoided and, in the other, multifariousness of the causes of action. It is also clear that the bundle of facts which would constitute the cause

of action in favour of the plaintiff would not necessarily be identical in a suit for recovery of possession and in a suit for mesne profits. In a suit for

possession the plaintiff need only prove his possession within 12 years and the defendant''s occupation of the property without right. In a suit for

mesne profits he has, in addition, to prove the duration of the whole period during which the dispossession continued, including the date on which it

terminated, as well as the amount to which he is entitled by way of damages. Evidence to prove these latter facts would undoubtedly be different

from that which would be required to prove the first set of facts.

It will thus be seen that the claim for mesne profits does not rest on the same foundation of facts and law as that for possession. I do not think

that the Privy Council intended to depart from the principle underlying the action for mesne profits recognised both in English and Indian Law and

overrule a body of case-law in India and lay down a different principle. Sir Dinshaw Mullah who was himself a party to the decision in Naba

Kumar Hasra v. Radhashyam Mahis (1931) 61 M.L.J. 294 (P.C.) in his book on Civil Procedure published since does not treat the said decision

as laying down a contrary view from that taken by the High Courts on this point. I am therefore of the opinion that Naba Kumar Hasra v.

Radhashyam Mahis (1931) 61 M.L.J. 294 (P.C.) would not apply to the facts of this case and the view of the learned Subordinate Judge is

wrong. The suit is therefore not barred by Order 2, Rule 2, Civil Procedure Code. Two other points were also argued by Mr. Somayya.

(1) The claim for mesne profits for fasli 1337 is not barred by limitation, and

(2) the amount of mesne profits awarded by the learned Subordinate Judge is not proper.

His Lordship then discussed these questions, which are omitted as unnecessary for this report and continued:

In the result, the decree of the learned Subordinate Judge is reversed and the plaintiff is given a decree for Rs. 500 with interest at 6 per cent, from

the date of the plaint. I direct the parties to pear their own costs in this second appeal; but in both the Courts below, the defendants 1 and 2 will

pay the cost calculated on the amount of Rs. 500 decreed therein.

Leave refused.