KUNCHI AMMA JANAKI AMMA Vs. UTHUPUNNI PAILY

JUDGEMENT

(1.) THE 1st defendant is the appellant. THE plaintiffs stated that while they were in possession of S. No. 223/5A of Mulavoor Pakuthy the defendants secured possession of the same in execution of a decree obtained by them in O.S. 407 of 1110. THEy were not parties to this decree. THEy applied for redelivery of possession of the property, got an order for the same on 21.12.1116 and obtained re-delivery on 2.3.1117. THE property is cultivated with paddy and the crops are collected in Kanni. THE annual net yield will be 25 paras of paddy. THE defendants were in possession of this land in 1114, 1115, 1116 and 1117 and so they are liable to pay the profits received by them in these years, with 20 per cent interest. THE suit is for realisation of the same.

(2.) THE 1st defendant contended that the property was not cultivated in 1114 because of the obstruction by the plaintiffs, that they got only 9 paras of paddy in 1115, 15 paras in 1116 and 36 paras in 1117, that the plaintiffs were in possession before that as lessees of her (1st defendant) tarwad on a pattom of 3 paras of paddy a year and that in any event the pattom for these 4 years were to be set off against the plaint claim. THE trial court disallowed the defence plea of set off and decreed the suit allowing the plaintiffs to realise the profits for the 4 years from 1114 at 25 paras of paddy a year along with 9 per cent interest on the pattom for each year. THE 1st defendant's appeal against this decree was dismissed by the District Court. In the lower court an argument had been advanced that the claim for mesne profits for more than three years before the date of suit was barred by limitation; but the lower court refused to listen to this as this question had not been raised either in the written statement or in the appeal memorandum.

(3.) A suit for the profits of immovable property belonging to the plaintiff which have been wrongfully received by the defendant has to be filed within 3 years from the date on which the profits are received There can be no doubt that the profits collected by the defendants after obtaining possession of the property and execution of the decree obtained by them was lawful until the order by which they were put in possession was reversed or set aside by the same court or by the appellate court. The reversal of the order at a subsequent stage indicated that the first order passed was wrong and that the possession under that order was wrongful possession. It would follow from this that the receipt of the profits during this period was wrongful and so any suit for realisation of the same was governed by Art. 95 of the Limitation Act. The rulings in Rangaswami v. Alagaymmal (A.I.R. 1915 Mad. 1133) and Saraj Ranjan v. Prem Chand (A.I.R. 1918 Cal. 360) would support the position taken above. This was also the dictum laid down in Philip v. Mytheen Pillai (57 T.L.R. 242). This principle had been practically adopted by Their Lordships of the Privy Council in Feroz Shah v. Mohammed Akbar Khan (A.I.R. 1930 P.C. 178). The principle laid down in the Calcutta case referred to above was accepted as correct by the Privy Council. It would therefore follow that the plaintiff could not claim any thing more than what accrued within 3 years of the suit. In other words he will be entitled to the profits for 1116 and 1117 at 25 paras of paddy a year with 9 per cent interest. The interest till date of suit will come to 11 paras of paddy so that on the date of suit the principal will be 50 paras of paddy which could be valued at Indian Rs. 75 as was done by the lower court. The value of 11 paras of paddy will be Indian Rs. 16-14 as. Thus what the plaintiff was entitled on the date of suit was Indian Rs. 75 towards principal and Indian Rs. 16-14 towards interest. The decrees passed by the lower courts are modified and the plaintiff is given a decree to realise Indian Rs. 91-as. 14 with 6 per cent interest on Indian Rs. 75 from 1-2-1119 to 13-11-1121. Interest on the aggregate amount from 13.11.1121 will be 6 per cent. The parties are allowed proportionate costs throughout. There was no appearance for the respondents in this court. Decree modified.