ANTOOLAL Vs. CHHITARMAL

JUDGEMENT

(1.) A decree for pre -emption was passed in favour of Antoo Lal against one Lalli and others on 16 -4 -41. In execution of their decree the plaintiff wanted to take possession from the defendants Chhitarmal and others (respondents in this appeal) who were tenants in the suit house but it appears that they resisted the execution proceedings. Eventually, on 18 -5 -55 the plaintiff succeeded in obtaining possession through the Court. The present suit was then brought for recovery of mesne profits at the rate of Rs. 50 per month against the present respondents. This suit was instituted on 5 -5 -58. Among other grounds it was resisted as barred by time. This objection found favour with the learned trial Judge and the suit was dismissed on that preliminary ground. The plaintiff took an appeal but it has been dismissed by the Additional District Judge, Morena. Shri Gupta learned counsel for the appellant contends that the right to sue for mesne profits arose to the plaintiff only on 18 -5 -55, when he obtained physical possession from the defendants. He relies on Salmond's jurisprudence (Eleventh Edition) at Page 246 where it is stated: -

(2.) IN Narayanjiwangouda Vs. Pullapai AIR 1945 PC 5, the contention that since the title of the contesting parties was involved in another suit it would be quite futile to institute a suit for possession till the successful termination of the earlier suit, was negatived and the Judicial Committee observed that the institution of a suit can never be said to be for tile if it would thereby terminate the running of limitation.

(3.) THE contention that the plaintiff could not bring a suit for mesne profits so long as he did not actually recover physical possession is untenable.