SADHU SINGH Vs. PRITAM SINGH NARAIN SINGH

JUDGEMENT

(1.) THE issue of law arising from virtually undisputed facts in this reference mav well be formulated in the following terms:-" Whether Order 2, Rule 2 of the Code of Civil Procedure. 1908 bars a suit for mesne profits filed subseauentlv to a suit for possession of fee property because the claim for those accrued mesne profits had not been earlier included therein ?" It suffices to advert to the relevant facts briefly. The subject-matter of the dispute is the urban property situated at Circular Road. Ambala City. In January, 1966. Pritam Singh respondent alone brought a suit for possession of the above-said property alleging inter alia that the defendants were in wrongful and unauthorised occupation thereof from the 14th of June, 1965. In this suit he did not include anv claim for mesne profits which had accrued till the date of the filing of the same. That suit is still pending decision. Later in 1968 Pritam Singh respondent alone with his sister Smt. Sur-jit Kaur respondent together brought the present suit (from which this regular second appeal arises) for the recovery of Rs. 3. 200.00 as mesne profits or in the alternative as damages for illegal use and occupation of the property above-mentioned from the original date of its unauthorised occupation.

(2.) APART from the other grounds the defendants resisted the second suit on two preliminary obiections regarding which the trial Court struck the following two issues:-

(3.) THEREFORE , despite the change of terminology it is more than oatenl that no change in the law was at all intended either in England or in Indis from the settled rule ("earlier at English Common Law and later in terms adopted bv the statutes) that claims for mesne profits and claims for the possession of the property were distinct and separate causes of action. To reiterate, it is apparent that the rule explicitly laid in Section 10 of the 1859 Code was intended to be continued and the mere change of language owing to the reasons above-noticed was not calculated to depart from the earlier settled law on this point. It then deserves mention that Rules 1, 2 and 4 of Order 2 of the present Code of Civil Procedure, 1908 are in pari materia with Sections 42. 43 and 44 of the Code of Civil Procedure, 1877. and therefore patently intended to continue the existing law. As a matter of chronology, therefore, it is evident that for more than a centurv the English Common Law and the subsequent statutes and the Indian Procedural Code patterned thereon had considered the claim of mesne profits and the claim of possession of the propertv as two distinct and separate causes of action.