CHINTALAPATI VARAHALAMMA Vs. GAVVA NALLAYYA

JUDGEMENT

(1.) In this appeal, the plaintiff whose claim for mesne profits has been negatived for the major portion is the appellant.

(2.) The facts leading up to the present appeal are briefly as follows: The plaintiff is the owner of certain lands, wet and dry, of the extent of 16 acres in Kailasapatnam agraharam within the Visakhapatnam district. She filed a suit O. S. No. 90 of 1943 on the file of the court of the District Munsif of Yellamanchiji for the ejectment of the defendants from the suit land, for recovery of possession thereof with arrears of rent and for future mesne profits. The claim was laid on the footing that the plaintiff is the owner of the property, which she leased out to the defendants as yearly tenants.The lease was terminated by a registered notice to the 1st defendant on 30-12-1941 and that is how the plaintiff claimed the relief for possession. The suit was decreed in favour of the plaintiff on the 21st of August, 1944 negativtiving the contention of the defendants that the suit property formed part of an estate within the meaning of section 3 (2) (d) of the Madras Estates Land Act. Besides a decree for possession, there was a preliminary decree for mesne profits from the date of the institution of the suit until delivery of possession. There was an appeal preferred by the defendants in A. S. No. 499 of 1944 on the file of the District Court, Visakhapatnam.The District Judge passed an order dated the 3st of January, 1945 setting aside the judgment and the decree of the lower court and remanded the suit for fresh disposal as by that time the definition of estate was amended by the Madras Act II of 1945, and the question whether the defendants had occupancy rights had to he investigated afresh. The order of remand was confirmed by the Madras High Court on 13/07/1946 in C.M.A. No. 193/1945. After the suit was restored to its file, it resulted once again in a decree for possession. But on this occasion for some reasons unexplained, a preliminary decree for future profits was not granted but instead the relevant portion of the decree run thus: "The claim for subsequent profits be lett open for determination in a separate suit". This decree was taken up in appeal by the defendants to the Subordinate Judge, Visakhapatnam in A.S. No. 267/1948 with no success, and a further appeal to the High Court in S.A. No. 54 of 1949 by them was also dismissed on 19-12-1952-It may however be noted that the plaintiff did not prefer either a cross-appeal or a memorandum of objections with respect to the disallowance of mesne profits subsequent to suit. The plaintiff decree-holder thereafter recovered possession of the suit property on the 26/02/1953.

(3.) The suit out of which the present appeal arises was thereafter filed on the 1 6/04/1955 praying for a decree for a sum of Rs. 11,498, being the mesne profits from the suit land from 7-4-1943 the date of the plaint in O.S. No. 90/43 District Munsifs Court, Yellamanchili till the 26/02/1953 the date on which possession was delivered. The cause of action for mesne profits is said to have arisen only on the 19/12/1952 when the High Court of Madras finally confirmed the decree of the District Munsif, Yellamanchili and that until then the rights were not declared finally so as to enable the plaintiff to sue for the recovery of mesne profits.The defendants pleaded that the suit is barred by limitation under Article 109 of the Limitation Act except for a period of three years prior to the institution of the present suit. Thus, it is conceded that the claim for mesne profits between 16-4-1952 and 26-2-1953 is alone enforceable and is not barred, the rest of the claim being barred by time. This contention was accepted by the lower court. It accordingly passed a decree for determination of the mesne profits for the said period and dismissed the suit for recovery of the profits for the rest of the period.