TAUSIF AHMAD Vs. MUNSHI BAHARUDDIN

JUDGEMENT

(1.) This letters patent appeal by defendants 4 to 8 is directed against me judgment and decree of Rajkishore Prasad J. affirming the order of the Subordinate Judge, second court, Purnea, in Title Suit No. 20 of 1951. The facts giving rise to this tip-peal are shortly these. Plaintiff-respondent 1 instituted a title suit No. 20 of 1951 against the appellants and others (defendants) for recovery of possession of lands appertaining to khata Nos. 210 and 211 of khewat No. 64, in village Sahpur, Mahal Bidhachan, touzi No. 372. The plaintiff further claimed a sum of Rs. 3,000/- as per accounts given in the plaint in respect of mesne profits for 1356, 1357 and 1338 Mulki. This suit was decreed ex parte on 30-7-1953 by the Subordinate judge of Purnea. The plaintiff got a decree for mesne profits and the amount thereof was to be determined in a subsequent proceeding. Subsequently, the plaintiff filed an application in the trial court on 27-7-1956 for ascertainment of mesne profits from 1356 Mulki till the date of delivery of possession and delivery of possession according to him, was on 10-6-1954. The appellants (defendants 4 to 8) objected to it on the ground that there was neither a prayer in the plaint for recovery of future mesne profits nor there was a direction in the decree for ascertainment of future mesne profits. This objection was overruled by the Subordinate Judge on 24-2-1958 and he held that the decree-holder was entitled to get mesne profits ascertained upto the date of delivery of possession. Defendants 4 to 8 and some other defendants preferred an appeal against this order but the appeal was dismissed by Rajkishore Prasad J., holding that the trial court had the power under Rule 12 of Order 20 of the Civil Procedure Code to direct an enquiry with regard to the future mesne profits. Hence, defendants 4 to 8 have preferred this letters patent appeal.

(2.) Learned single Judge took the view that the plaintiff had claimed mesne profits in general terms in the plaint but he did not specifically mention future mesne profits, although he mentioned past mesne profits. He was further of the view that the Court, while decreeing the plaintiffs suit ex parte had decreed the plaintiff's suit for possession and mesne profits also and directed an enquiry to be made into the amount of mesne profits in a subsequent, proceeding. Learned counsel for the appellants urged that the plaintiff had not claimed future mesne profits in the plaint and there being no relief for future mesne profits it was not allowed to him by the decree. He contended that the plaintiff had claimed only past mesne profits and that was clear from the various recitals of the plaint itself. It is thus necessary to consider the various statements made in the plaint and the reliefs asked for from this point of view. The case of the plaintiff was that he had purchased 16 annas touzi No. 372 of Collectorate, Purnea, in mouza Sahpur, Mahal Bidhachan, on 26-3-1947 at a revenue sale by public auction and got possession thereof on 28-12-1947 after obtaining sale certificate and a writ for delivery of possession. The plaintiff claimed that by this purchase at the revenue sale the encumbrances were annulled and the istimrari rights of defendants 1 to 3 (heirs of Mabud Bux) and the rights acquired by the ancestors of defendants 4 to 8 were extinguished, meaning thereby, that they had no right to continue in possession of the lands in question after the delivery of possession to the plaintiff. The plaintiff asked defendants 1 to 8 to give up possession but they refused to do so. Hence the plaintiff was entitled to a decree for recovery of possession and mesne profits. The plaintiff valued the land in suit at Rupees 3,000/- and, apart from it he claimed Rupees 3,000/- as mesne profits according to the account given in the plaint. Thus, the total value of the suit was Rs. 6,000/-. The plaintiff claimed A decree for recovery of khas possession over the suit lands of khewat No. 64, khata Nos. 210 and 211 on dispossession of the defendants. Relief No. C reads as follows:

(3.) The account given in the plaint indicates that mesne profits were claimed for 1356, 1357 and 1358 Mulki. The plaintiff no doubt claimed mesne profits but claim was limited to past mesne profits only. There is nothing in the plaint to indicate that the plaintiff either directly or indirectly made a prayer for recovery of future mesne profits. Taking into consideration relief No. C and the account, it will not be correct to hold that the plaintiff had claimed mesne profits in general terms. The possession of the defendants might be wrongful, but it is open to a plaintiff to ask for a decree for recovery of possession only without claiming any mesne profits. It is further open to a plaintiff in such a case to claim both past mesne profits and future mesne profits. He is further at liberty to claim only past mesne profits and give rip the future mesne profits. In the present case, for reasons best known to the plaintiff, he did not choose to claim future mesne profits and, on a construction of the plaint 1 am of the opinion that only past mesne profits were claimed and not future. Next comes the ex parte decree passed by the Subordinate Judge on 30-7-1953. The learned Subordinate Judge held inter alia, as follows: