GOURAWWA Vs. HANUMAGOUDA BASAPPA KODIGOUDRA

JUDGEMENT

(1.) THIS appeal by the plaintiff is directed against the judgment and decree dated 30. 11. 2002 passed in R. A. No. 76/99 on the file of the Additional Civil Judge (Sr. Dn.), Ranebennur, allowing the appeal and setting aside the judgment and decree dated 15. 10. 99 passed in O. S. No. 56/95 on the file of the Civil Judge (Jr. Dn.), Hirekerur, and consequently dismissing the suit of the plaintiff on the ground that it is barred under Order 2 Rule 2 CPC.

(2.) THE essential facts of the case leading up to this appeal with reference to the rank of the parties before the trial Court are as follows: the plaintiff filed O. S. No. 56/95 seeking for mesne profits of Rs. 15,000/- from the defendent with interest and costs. It is the case of the plaintiff that he had filed O. S. 2/77 against the defendant for declaration of his title in respect of the land bearing No. 137/a of Divigihalli village measuring 20 guntas assessed at 2. 20 p and for permanent injunction against the defendant. During the pendency of the said suit, he was dispossessed and the prayer for possession of the property was included in the plaint and the suit was decreed on 26. 6. 1986. The said judgment and decree was confirmed in R. A. No. 37/86 vide judgment dt. 6. 4. 1993 and in rsa No. 637/1993, appeals filed by the defendant. Thereafter, the plaintiff filed execution case no. 44/93 and obtained possession of the land on 4. 9. 1994 and thereafter, O. S. No. 56/95 was filed seeking for mesne profits from the defendant from 1968 to 4. 9. 1994 averring that the plaintiff is entitled to mesne profits from the defendant as the defendant was in possession of the property to which he was not entitled to and he has received the income from the property. It is further averred that the income of the property is more than Rs. 4,000/ -. Further, the plaintiff restricted his claim to mesne profits to Rs. 600/- per year from 1968 to 1994 i. e. for a period of 26 years which comes to Rs. 15,600/- and claimed mesne profits at Rs. 15,000/- from the defendant with interest and costs. The suit was resisted by the defendant denying the averment made in the plaint and contented that the plaintiff is not entitled to mesne profits as the said claim was not made in the earlier suit and wherefore, the suit claiming mesne profits is not maintainable in view of the provisions of order 2 Rule 2 CPC as the plaintiff did not make a claim for mesne profits while including the prayer for possession by amending the plaint in O. S. No. 2/97 and wherefore, when the said cause of action is common for both mesne profits and possession, a suit claiming only mesne profits is not maintainable when the same was not claimed in the earlier suit. He also averred that the plaintiff is not entitled to Rs. 15,000/- towards the mesne profits as claimed in the suit. The trial Court framed appropriate issues including the issue as to "whether the suit was barred under order 2 Rule 2 Code of Civil Procedure"? The plaintiff got himself examined as PW1 and also got examined PW2 and got marked documents exhibits P1 to P3. On behalf of the defendants, the defendant was examined as DW1 and he also examined DWs 2 and 3 and got marked documents D1 to D4. The trial Court after considering the contention of the parties and the material on record held that the suit was not barred by provisions of Order 2 Rule 2 as contended by the defendant and held that the plaintiff is entitled to mesne profits as sought for in the suit and accordingly, decreed the suit of the plaintiff for mesne profits of Rs. 15,000/- with interest at 10% p. a. from the date of the suit till realisation by its judgment dt. 15. 10. 1999. Being aggrieved by the said judgment and decree, defendant preferred R. A. No. 76/99 and the court of the Civil judge (Sr. dn.) Ranebennur, by judgment dt. 30. 11. 2002, reversed the finding given by the trial court and held that the present suit is not maintainable under Order 2 Rule 2 CPC as the claim for mesne profits has not been claimed when the prayer for possession was included in the earlier suit OS. No. 2/77 and since cause of action for mesne profits arose to the plaintiff when she was dispossessed from the suit schedule property and the suit was barred under Order 2 Rule 2 and accordingly, held that the suit was not maintainable and accordingly, reversed the finding of the trial Court and dismissed the suit of the plaintiff vide judgment dt. 30. 11. 2002. Being aggrieved by the said judgment and decree, the plaintiff has preferred" this appeal which was admitted on 14. 2. 2003 for consideration of following substantial question of law:

(3.) THE learned Counsel for the appellant submitted that the finding of the first appellate court that the suit is barred under Order 2 Rule 2 CPC is clearly erroneous. He further submitted that the cause of action for possession and mesne profits is not the same and even assuming that order 2 Rule 2 Code of Civil Procedure would be applicable, that would be in respect of the mesne profits prior to the decree passed by the trial Court and the entire claim could not have been dismissed as the fresh suit filed for mesne profits from the date of the decree to the date of delivery of possession is maintainable even though not claimed in the earlier suit for possession and is not barred by Order 2 Rule 2. He has relied upon the following decisions: i) Dhanakeerthiah v. Vimalappa, 1972 (2) KLJ 238 ii) Venugopal Pillai And Ors. v. Thirugnanavalli Ammal, AIR 1940 Madras 934 iii) Sris Chandra Nandy of Kasimbazar Represented By Manager, Kasimbasar Raj Wards Estate v. Joyramdanga Coal Concern Ltd Calcutta, (29) AIR 1942 Calcutta 40 wherein it is held that order 2, Rules 2 and 4 of Code of Civil Procedure clearly indicate that a claim for mesne profits would not be barred under Order 2 Rule 2 CPC