KULADA PROSAD CHATTERJEE Vs. KHUDIRAM MISRA

JUDGEMENT

(1.) THIS is an appeal by the defendants in a suit for recovery of mesne profits. The only question in controversy is whether the suit is barred under the provisions of Order II, Rule 2, of the Civil Procedure Code of 1908. "The facts material for the determination of this question, may be briefly recited. The plaintiffs instituted a suit in 1913 against the defendants for recovery of possession of the disputed land with mesne profits upon establishment of title. That suit was decreed on the 22 May, 1914. The plaintiffs became entitled to recover possession of the land and also to realize the mesne profits which had accrued due antecedent to the suit. In July 1914 the plaintiffs executed the decree and obtained symbolical possession through Court. On the 12 February 1917 the plaintiffs instituted a suit against the defendants for recovery of mesne profits subsequent to the institution of the suit and up to the date of delivery of possession. THIS suit was decreed. On the 20 April 1918 the plaint-tiffs commenced this litigation against the defendants for recovery of mesne profits from the date of delivery of symbolical possession up to the 13 April 1918. In these circumstances the question arises whether the provisions of Order II, Rule 2 operate as a bar in respect of that portion of the claim for mesne profits which had accrued due subsequent to the delivery of symbolical possession and before the institution of the first suit for mesne profits. The Courts below have answered the question in favour of the plaintiffs. On behalf of the defendants it has been maintained in this Court that the mesne profits claimed in this suit for the period subsequent to the delivery of symbolical possession and prior to the date of the institution of the first suit for mesne profits could and should have been claimed in that suit. To test the validity of this contention we have to determine whether this portion of the claim is based on the cause of action which was the foundation of the claim for mesne profits for the period antecedent to the delivery of symbolical possession. On behalf of the plaintiffs-respondents, it has been maintained that delivery of possession operated to interrupt the prior adverse possession and that the continuance in occupation by the defendants gave rise to a new cause of action: in other words, that the delivery of symbolical possession is the line of demarcation between possession antecedent and possession subsequent. THIS contention is supported by the decision of the Judicial Committee in the case of Radha Krishna Chanderji V/s. Ram Bahadur 43 Ind. Cas. 268 : 22 C.W.N. 330 : 16 A.L.J. 33 : 23 A.L.T. 26 : 4 P.L.W 9 : 34 M.L.J. 97 : 7 L.W. 149 : 27 C.L.J. 191 : (1918) M.W.N 163 : 20 Bom. L.R. 502 (P.C.). In that case Lord Sumner pointed out that when a decree-holder has received formal possession as usual after due proclamation by beat of drum, adverse possession of the judgment-debtor is interrupted. In support of this view reference was made to the decision of a Full Bench of this Court in the case of Juggobundhu Mukerjee V/s. Ram Chunder Bysack 5 C. 584 : 5 C.L.R. 548 : 3 Shome. L.R. 68 : 2 Ind. Dec. (N.S.) 979 which was treated as an authority for the proposition that symbolical possession availed dispossesses the judgment-debtors sufficiently, because they were parties to the proceeding in which delivery was, ordered and given. Lord Sumner added that this decision was one of long standing and had been followed for many years and he saw ho reason to question or to hold that this rule of procedure should now be altered. In the case before us, no doubt, the decree-holders were entitled to actual possession. But this circumstance does not make any differ. ance in the position of the parties, as is clear from the decision in Hari Mohan Shaha V/s. Baburali 24 C. 715 : 12 Ind. Dec. (N.S.) 1146 where it was pointed out, on the authority of the earlier decisions in Lokessur Koer V/s. Purgun Roy 7 C. 418 : 3 Ind. Dec. (N.S.) 819 and Shama Charan Chatterji V/s. Madhub Chandra Mookerji 11 C. 93 : 5 Ind. Dec. (N.S.) 820 that though the judgment-debtor was actually in possession and the decree-holder was consequently entitled to take not merely formal possession but actual possession, yet the formal possession given to the decree-holders was in the eye of law sufficient possession as against the judgment-debtor. THIS view was also adopted in the case of Mir Waziruddin V/s. Deoki Nandan 6 C.L.J. 472. We must consequently hold that the claim for mesne profits subsequent to the delivery of possession cannot be deemed to be based on an identical cause of action. THIS serves to distinguish the decision of the Judicial Committee in the case of Muhammad Hafiz V/s. Mirza Muhammad Zakariya . In that case, a suit was instituted for recovery of interest due on a mortgage. A subsequent suit was instituted for recovery of the principal and interest. It was ruled that the claim for principal was barred under Order II, Rule 2, as the claim had accrued due before the institution of the prior suit, and as the claim for principal and interest arose out of the same cause of action they should have been united in the previous suit. We may point out that the rule is that every suit shall include the whole of the claim arising from one and the same cause of action and not that every suit shall include every claim or every cause of action which the plaintiff may have against the defendant. THIS is supported be the decisions of the Judicial Committee in Pittapur Raja V/s. Suriya Row 12 I.A. 116 : 8 M. 520 : 9 Ind. Jur. 274 : 4 Sar. P.C.J. 638 : 3 Ind. Dec. (N.S.) 356 (P.C.) and Chand Kour V/s. Partab Singh 15 I.A. 156 at p. 157 : 16 C. 98 : 5 Sar. P.C.J. 243 : 12 Ind. Jur. 331 : 8 Ind. Dec. (N.S.) 65 (P.C.). The test is, whether the cause of action in the subsequent suit is different from the cause of action in the earlier suit? If the answer be in the affirmative, the subsequent suit is not barred, even though it might have been open to the plaintiff to unite the cause of action with the cause of action in the prior suit; Mullick Kefait Hossein V/s. Sheo Pershad Singh 23 C. 821 : 12 Ind. Dec. (N.S.) 545. We hold accordingly that the Courts below have correctly adopted the view that this suit is not barred under Order II, Rule 2, Civil Procedure Code. It has not been argued before us that the proper remedy of the plaintiffs is not by a suit for mesne profits but by a suit for recovery of possession. We need not consequently express an opinion upon that question.

(2.) THE result is that this appeal is dismissed with costs.