PARSOTAM RAM Vs. MANGAL RAM

JUDGEMENT

(1.) This a first appeal by the plaintiffs whose suit for partition has been decreed, but certain reliefs have been refused by the Court of first instance. The facts are that the plaintiffs brought a Suit No. 17 of 1923 against the present defendant Mangal Ram claiming possession of half of certain property to which the plaintiffs claimed to be entitled as revarsioners on the death of a widow, and the plaintiffs obtained a decree on 17 July 1923. The defendant made an appeal to this Court which was dismissed on 11 November 1926. The plaintiffs got actual possession on 21 May, 6 June and 9 June 1927. The first matter which forms a ground of appeal is that the lower Court was wrong in dismissing the claim of the plaintiffs for mesne profits. Before the lower Court and also in this Court it has been argued that the plaintiffs are not entitled to mesne profits on two grounds. One ground is that the plaintiffs present suit for mesne profits is barred by Order 2, Rule 2, and that is the ground on which the lower Court has dismissed the suit for mesne profits. Reliance was placed by the respondent on Oohardhan Lalji Maharaj v. Bishambar Nath in which it was held that a subsequent suit asking for mesne profits was barred by Order 2, Rule 2, but in that case in the first suit the plaintiff had not asked for mesue profits, and accordingly it was held that ha should have asked for mesne profits as a relief. Now the plaint in the former Suit No. 17 of 1923 is printed on p. 36 of the paper book and in it in relief (b) the plaintiff asked for mesne profits and for future profits against the defendant. The case therefore stands on a different footing from Gobardhan Lalji Maharaj V/s. Bishambar Nath and in the present case it cannot be said that the plaintiffs are barred by Order 2, Rule 2, because in the former Suit No. 17 of 1923 the plaintiffs did include future mesne profits as one of the reliefs which they asked.

(2.) The other ground on which it is urged that the plaintiffs are barred from their claim for mesne profits in the present suit is that in the former suit mesne profits were not granted, and in that former Suit No. 17 of 1923 there was an issue 6: Whether the plaintiffs are entitled to damages and if yes, to how much?

(3.) On this issue there was a very brief finding: The plaintiffs being out of possession and the defendant's possession over the half-share of Chandra Sekhar being wrongful, the plaintiffs are entitled to damages for the half-share. But no amount of damages has been proved and therefore I find this issue against the plaintiffs.