GOGINENI RAMAKRISHNAYYA (DIED) AND OTHERS Vs. V. VIRARAGHAVAYYA

JUDGEMENT

(1.) This Second Appeal is filed by the defendants as against the judgment and decree of the Subordinate Judge of Tenali in A.S. No. 41 of 1949 decreeing the plaintiff's suit for recovery of compensation from the defendants in respect of a contract for sale, dated 2bth January, 1943. The plaintiff filed O.S. No. 40 of 1946 on the file of the District Munsif, Repalle, for specific performance of the agreement of sale or in the alternative for recovery of damages. The suit was decreed. The present suit was instituted on 4/11/1947, for recovery of mesne profits from the suit land. An objection was raised that mesne profits were not payable. The District Munsif in the first instance decreed the suit. There was an appeal A.S. No. 80 of 1948, filed before the Subordinate Judge, Tenali. The Subordinate Judge held that having regard to the provisions of sec. 55 (4) of the Transfer of Property Act, the seller was entitled to the rents and profits of the property till the ownership passed to the buyer, and that the suit for recovery of mesne profits was not maintainable. He also held that viewed as a suit for recovery of damages, Order 2, rule 2 would apply and the suit would also fail on that ground. But for no proper reason, he permitted the plaintiff to amend the plaint basing it as one for damages for breach of contract and remanded the suit to the trial Court. On the findings recorded by him in paragraph 9 he ought to have allowed the appeal and given a quietus to the proceedings.

(2.) On remand, the District Munsif held that the suit was hit at by the provisions of Order 2, rule 2, Civil Procedure Code and dismissed the plaintiff's suit. On, appeal the Subordinate Judge reversed the judgment and decree of the District Munsif and decreed the suit for Rs.71.008-0. The defendants have consequently preferred the Second Appeal.

(3.) The short question for decision in the Second Appeal is whether the plaintiff is entitled to claim mesne profits. Sec. 55 (4) of the Transfer of Property Act is quite clear that the seller is entitled to the rents and profits of the property till the ownership thereof passes to the buyer. So until the conveyance was executed in favour of the plaintiff he was not entitled to the rents and profits. So the District Munsif was quite right in holding that the suit for recovery of mesne profits was not maintainable. The decision in Subbaroyar v. Kottayya Goundan A.I.R. 1917 Mad. 1009 , is a clear authority in support of that proposition. Moreover, the plaintiff did not prefer an appeal as against the order of remand and it is not open to him to contend that he is entitled to recover mesne profits.