THAVASI; MUTHUKARUPPAYEE ATHAL Vs. ARUMUGAM; VALATHAL

JUDGEMENT

(1.) The contesting defendants are the appellants in this Second Appeal. The suit was brought for the recovery of the mesne profits due to the plaintiffs for faslis 1314, 1315 and 1316 during which faslis the defendants were in unlawful possession of the plaintiffs land. The plaintiffs had brought a former suit (Original Suit No. 131/05) under Section 9 of the Specific Belief Act in January 1905, very soon after they were forcibly dispossessed by the defendants. In that suit, they prayed for possession of the lands with the crops then standing thereon. But if before the decree was passed for possession, the crops were removed by the defendants, the plaintiffs also prayed for recovery of the value of the crops from the defendants.

(2.) The District Munsif in that suit decreed only possession of the lands, evidently because the question of the plaintiffs right to the value of the crops depended upon the plaintiffs title to the land and in a suit under Section 9 of the Specific Belief Act, the question of title could not be finally decided and need not be gone into. (See the Judgment Ex. IV). The Judgment in O.S. No. 131 of 1905 was passed on the 81st March 1906. The plaintiffs executed that decree and got possession in November, 1906, that is, about the middle of the fasli 1316, after the season for ploughing, sowing and cultivation had expired, such season being in August September 1906. If the defendants had given up the land before August 1906 to the plaintiffs, the plaintiffs could have begun cultivation in the due season of August 1906 and there would have been crops almost ripe for harvest in the middle of November 1906, when alone the plaintiffs were able to get possession through Court.

(3.) Such being the facts, several questions of law have been raised and decided in this case. The District Munsif held that because the defendants after the 31st March 1906 (the date of the decree in the Original Suit No. 131 of 1905 for possession), did not cultivate the lands and left them waste, the plaintiffs were not entitled to mesne profits for fasli 1316. He therefore decreed mesne profits only for faslis 1314 and 1315. The learned District Judge thought that the learned District Munsif was wrong in his opinion that the plaintiffs had negligently delayed the execution of their possessory decree beyond August 1906. The District Judge, therefore, allowed the claim for mesne profits for fasli 1316 which had been disallowed by the District Munsif; but the learned Judge disallowed the claim for mesne profits for fasli 1314 i.e., (mesne profits which the defendants wrongfully carried away in January 1905) on the ground that the plaintiffs having claimed such mesne profits in the former summary suit and not having been granted those mesne profits by the decree in that suit, the plaintiffs claim was barred by res judicata under Section 11 of the Civil Procedure Code, read with its explanation V. The decree passed by the learned District Judge contained an arithmetical error because, instead of allowing Rs. 160 (at Rs. 80 a year) for the two faslis 1315 and 1316 as mesne profits, a sum of Rs. 390 was mentioned in the decree.