MURULIDHAR AGARWALLA Vs. RUPENDRA MITTER

JUDGEMENT

(1.) This appeal by the defendants arises out of a suit for recovery of damages for use and occupation, or alternatively mesne profits. Upon the landings of the Courts below on the questions of fact which have not been and cannot, be either in law or on the materials on record challenged in this appeal the position stands thus:

(2.) The property in suit belonged, originally, to Dr. Kartick Chandra Bose and Sons, of Calcutta, under a lease from the Chatterjees. On 23-5-1945, this property was transferred by a conveyance by Dr. Kartick Chandra Bose and sons to the plaintiffs of the present suit and by the said conveyance not only the property but also all right to realise arrears of rent, compensation, etc., in respect of the said property was transferred to the plaintiffs. It is the plaintiffs' case that the defendants had trespassed into the lands sometime in June 1942, and were continuing their wrongful possession as trespassers. The plaintiffs have brought the present suit for damages for use and occupation, or alternatively, for mesne profits, for the period February 1943 to January 1946, the prior period from June 1942 to January 1943, having been apparently left out of account because of the law of limitation. Both the Courts below have decreed the plaintiffs' suit,

(3.) In this appeal Mr. Chakravarty, appearing on behalf of the defendants appellants, has raised two contentions (1) that the assignment of a claim for damages would be invalid under the law and, therefore, on the basis of the assignment of the right to recover compensation as made by the conveyance from Dr. Kartick Chandra Bose & sons, the plaintiffs would not be entitled to get any relief, and (2) that even assuming that such assignment was valid & gave the plaintiff's the right to recover compensation, the plaintiffs are not entitled to succeed in the present suit, as they, having been out of possession at the date of the suit, cannot maintain a suit for damages or mesne profits without a suit for recovery of possession, the more so, as their vendors also were out of possession at the date of this conveyance. In my opinion, none of the two contentions raised by Mr. Chakravarty can be accepted.