RAM SWARUP Vs. JITMAL

JUDGEMENT

(1.) IN this application in revision by the defendants in a small cause suit for mesne profits for a period well after the filing of the original suit we are concerned with four main grounds. Firstly, whether a suit for mesne profits claimed by the plaintiff as a liquidated amount of money is excluded by Article 31 of Schedule II of the provincial Small Cause Courts Act, from the competency of that class of Courts. Secondly, whether a separate suit for mesne profits for a subsequent period is barred under Order 2 Rule 2 Civil Procedure Code when the plaintiff does not ask for it in the suit itself. Thirdly, whether Order 20 Rule 12 has any application at all to a claim of mesne profits in a separate suit. Finally, whether the fact that the judgment-debtor in the execution proceedings of the original decree has raised questions before it as to the measurement and location of the land that should have been delivered into the possession of the plaintiff, justifies the stay of a suit for mesne profits on the basis of the decree.

(2.) IN so far as these proceedings are concerned the facts of the case are common ground. The opposite party brought a suit in the regular Civil Court for the declaration of his title and recovery of possession of a strip of land between his house and the house of the defendant-applicants. After contest the suit was decreed, the plaintiff's title declared and order made that possession should be restored. It may be noted even here that the original suit was for a strip of land demarcated and shown on the map, and again there was no prayer in the suit for mesne profits, past or future. After obtaining the decree and putting it into execution, the plaintiff brought the present suit for mesne profits at the rate of Rs. 30 per month payable by the defendant to the plaintiff. Naturally in view of the limitation the term for which the mesne profits were claimed was within three years (actually 29 months) from the date of this suit and long after the filing of the civil suit for declaration and possession. At the first instance this suit itself was filed in the regular civil court but it returned the plaint directing the plaintiff to file it in the Small Cause Court. The latter passed a decree for mesne profits not on the basis of any taking of accounts, but on the finding that for the use of the strip of land the defendant was liable to pay the plaintiff the amount claimed. It appears that in this interval the strip had been measured out and delivered into the possession of the plaintiff; but the judgment-debtor has afterwards filed an application before the executing court for remeasurement and revised demarcation. Ground No. 1-

(3.) IT is urged on the strength of Article 31 to Schedule II of the Provincial Small cause Courts Act that a suit for mesne profits it not cognizable by the Small Cause court. It is pointed out that various High Courts have taken conflicting views in this regard; but as a fuller examination will show it is only apparent. The article runs thus: