LAKSHMIBAI ANANT KONDKAR Vs. JAGANNATH RAVJI KONDKAR

JUDGEMENT

(1.) This is an appeal from the decision of the First Class Subordinate Judge of Thana. The plaintiff sues to recover from the defendants eighty khandis of paddy or its price Rs. 4,800 for the income of the suit property for the year 1927 and Rs. 400 being the amount of assessment for the year 1927 28. The learned Judge held that the plaintiff's claim was barred by res judicata and estoppel, and he also held upon the facts that the defendants had proved that they had left the possession of the suit properties and did not receive the income for which they were being sued.

(2.) The first point, which is one of law, arises in this way. In 1926 the plaintiff brought a suit against the defendants in which she alleged that the defendants had been the tenants of her property at a rent of Rs. 3,000 a year, that, the tenancy had expired, and she claimed possession, arrears of rent and mesne profits until delivery of possession. On March 29, 1927, a decree was made by consent in that suit under which the defendants were ordered to deliver up possession of the suit property, and it was provided that in case they failed to do so, the plaintiffs might obtain possession from the defendants by executing the decree against them; and then it was ordered that the defendants should pay to the plaintiff a sum of Rs. 3,750 on account of mesne profits for the period mentioned in the plaint and for the period up till judgment. But there was no order in respect of mesne profits which might accrue after the date of the order. No question as to mesne profits after the date of the order could arise if the order for possession was carried out at once, and seeing that this was a consent decree the parties and the Judge may well have thought that it was not necessary to deal with future profits because the defendants would carry out their agreement and give up possession forthwith. It was no doubt open to the Judge under Order XX, Rule 12, to have made a decree for possession and to have directed an inquiry as to mesne profits until the actual date of delivery of possession or until the other alternative dates mentioned in that rule, and it was open to the parties to have asked for such an order. But they did not do so. The learned Judge has held that the suit is not maintainable having regard to Section II of the Civil Procedure Code. That is a section designed to prevent multiplicity of actions, and in explanation 5 it is provided that any relief claimed in the plaint which is not expressly granted by the decree shall for the purposes of the section be deemed to have been refused. Now, the learned Judge holds that because an enquiry under Order XX, Rule 12, in respect of mesne profits subsequent to the date of the judgment was not granted that therefore the claim to those mesne profits must be deemed to have been refused. That seems to me a rattier remarkable result to achieve by the application of Section 11. The order on the defendants to deliver up to the plaintiff immediate possession involves a holding that the plaintiff was entitled to possession, and consequently to the profits which would accrue from the land after she got possession; and if the learned Judge is right it really involves a finding that the Court which passed that decree in March 1927 made two inconsistent orders, first, an order that the plaintiff was entitled to possession, and, secondly, an order that the plaintiff was not entitled to the profits of the land of which she was to get possession. The learned Judge based his decision on a decision of this Court in Atmaram Bhashar V/s. Parashram Ballal, s.c. 22 Bom. L.R. 982. It is true that in that case Mr. Justice Heaton commences his judgment by saying (p. 959):- The point before us relates to what happens when a plaintiff sue3 for redemption or possession and in his plaint claims future mesne profits and the decree is silent as to such mesne profits.

(3.) But the suit before the Court was not a suit for possession, it was a suit for partition. According to the report of the facts the reliefs claimed were for partition and for possession, and the decree was for a partition, so that there was not in that case any order for possession as there was in this case. I think, therefore, that the case is not an authority which is in point here. That decision and the reasons given for it are in conflict with a decision-of the full bench of the Madras High Court in Doraiswami V/s. Subramania (1917) I.L.R. 41 Mad. 188, F.B. and with a decision of the Allahabad High Court in Muhammad Ishaq Khan V/s. Muhammad Rustam Ali Khan (1918) I.L.R. 40 All. 292. I desire to keep an open mind as to which of those conflicting decisions is the more correct. The decision of the Bombay High Court is of course binding upon us in a case in which the facts are similar, but it may possibly be necessary at some future time for a full bench of this Court to consider that case, and I can see a good deal to be said against the view of the Bombay High Court. It is only necessary for my present purpose to say that, inasmuch as there was no order for possession in that case, it does not govern the present case, I think, therefore, that the learned Subordinate Judge was wrong in holding that this suit was barred by res judicata or estoppel.