BIDYADHAR BACHAR Vs. MANINDRA NATH DAS

JUDGEMENT

(1.) These two appeals arise out of two suits instituted by the plaintiff-appellants in the Court of the Munsif for recovery of possession of certain lands with mesne profits. An order was passed against the plaintiff under Section 145, Criminal Procedure Code, and the suits were instituted on 12 September 1911, for declaration of title. On the 20 February 1914, the suits were decreed. The appeals to the lower Appellate Court were dismissed on 12 June 1915. There were second appeals to this Court by the defendant, which were also discussed on the 21 August 1913. In the meantime, i.e., on 2 December, 1915, plaintiff book possession of the decreed lands and after the appeal do this Court was disposed of, on the 27 February 1919, applied to the Court of the Munsif which had passed the decree to ascertain mesne profits from the date of institution of the suit to the data of delivery of possession and to pass a decree for such amount as may be found due on enquiry. The plaintiff's applications really related to the ascertainment of mesne profits, pendente lite, for he subsequently gave up his claim for antecedent mesne profits which was very small. In his applications the plaintiff valued his claim for mesne profit; in one case at over Rs. 3,000 and in another case at Rs. 12,000. The amounts claimed being beyond the jurisdiction of the Munsif, he returned them for presentation to the proper Court. The plaintiff then filed the applications before the Subordinate Judge of Khulna, but the learned Judge, following a certain decision of this Court, registered the applications as new suits. In an elaborate judgment the Subordinate Judge held that the Munsif had jurisdiction to ascertain the mesne profits and pass a decree for any sum so ascertained, even though it might be beyond his pecuniary jurisdiction. The learned Subordinate Judge held that the proceedings before him could not be considered as continuation of the proceedings in the suit before the Munsif, and therefore the applications muss be taken to have initiated fresh suits for the purpose of recovery of mesne profits. In that view he was of opinion that the statute of limitation would apply, whereas if the Munsif was to try the applications, no question of limitation could arise. 1 he learned Subordinate Judge thereupon ordered that the plaints for ascertainment of mesne pro-tits be returned to the plaintiff's pleader for being filed in the Munsifs Court within 30 days for disposal under Order 20, Rule 12, Civil Procedure Code. Against this order the plaintiff has appealed to this Court, and it is argued that the Subordinate judge has erred in holding that the Munsif's Court was the proper Court for ascertainment of the mesne profits and that the applications before the Subordinate Judge were affected by the law of limitation.

(2.) On the first question raised there has been divergence of opinion in this Court) and it is necessary to refer to the authorities briefly. In Bhupendra Kumar Chakravarti V/s. Purna Chandra Bose [1910] 43 Cal. 650, it was hold by Mukerjee and Teunon, JJ., that a Munsif cannot entertain an application for investigation of mesne profits pendente lite, when the claim is laid at over Rs. 1,000 and that the proper course for him to follow is to direct the return of the plaint, so far as it embodies a prayer for assessment) of mesne profits from the date of institution of the suit to the date of delivery of possession, for presentation to the proper Court. A similar view was taken in the case of Baikuntha Nath Kundu V/s. Mohananda Barat [1919] 24 C.W.N. 342. The facts of that case are similar to those of the present case. The suit there, as here, was instituted in the Court of the Munsif, and subsequently after the final decision by the High Court the plaintiff applied for ascertainment of mesne profits which he assessed at over Rs. 5,000. The Munsif, thereupon returned the plaint for presentation before the Subordinate Judge. On the defendant raising the plea of limitation, the Subordinate Judge held that under Section 14 of the Limitation Act the claim was not tarred. Against that decision the defendant appealed to this Court and the learned Judges decides that the order of the Subordinate Judge was correct in substance, as they were of opinion that the proceedings before the Subordinate Judge were in continuation of the suit before the Munsif and were not affected by the statute of limitation. The question argued in the present oases was not pointedly raised in that case, but the learned Judges seem to be of opinion that the procedure followed was correct. A contrary view was taken in Rameswar Mahton V/s. Dilu Mahton [1894] 21 Cal. 550. There the suit valued at Rs. 950 was brought in the Munsif's Court to recover possession of certain lands and for a decree for such mesne profits from the date of the institution of the suit to the date of the delivery of possession, as might be assessed in execution of the decree. The Munsif made a decree in accordance with the prayer in the plaint. The plaintiff then asked that the mesne profits might; be assessed and in his petition he roughly estimated them at Rs. 1,595. On an appeal the District Judge held that the Court of the Munsif had no authority to determine the amount of mesne profits beyond its pecuniary jurisdiction and that the plaintiff could not recover more than Rs. 50 as mesne profits, being the difference between the limit of the Munsif's jurisdiction and the value of the lands as given in the plaint. On an appeal to this Court, Ghose and Rampini, JJ., held that the view taken by the lower Appellate Court was erroneous and that the Munsif had jurisdiction to ascertain the mesne profits and give effect to the order made in his decree in the suit notwithstanding that the amount of such mesne profits added to the value of the suit might come to a sum in excess of the pecuniary jurisdiction of his Court. This case was followed by Brett and Sharfuddin, JJ., in Pachuram V/s. Kinu [1913] 40 Cal. 56. In that case the amount of mesne profits ascertained by the Munsif was Rs. 1,630 in execution. On an objection taken by the judgment-debtor that the executing Court being a Munsif was not entitled to award mesne profits of a higher amount than Rs. 1,000, it was held that such Court had jurisdiction to award the mesne profits ascertained. The learned Judges tried to distinguish the case Bhupendra Kumar Chakravarti V/s. Purna Chandra Bose [1910] 43 Cal. 650 on the ground that the amount of mesne profits was ascertained in the case before them in the execution proceedings by a Commissioner but we fail to recognize how the principles of law laid down in these two cases can be reconciled. We are conscious of the alteration in the law made by the Civil Procedure Code of 1908, namely, that under the present Code mesne profits have to be ascertained in the suit, whereas in the Code of 18851 the investigation was relegated to the execution department. We do not think that this difference in the procedure materially affects the principles of law underlying these decisions. The latter view has been accepted by the High Court of Madras in the full Bench case of Putta Kannayya V/s. Rudra Bhatta [1917] 40 Mad. 1 and by the Patna High Court in Dinanath Sahai V/s. Mt. Mayawati Kuer A.I.R. 1921 Pat. 118. In the last case, much stress has been laid on Order 20, Rule 12, Civil Procedure Code, 1908, which is construed as empowering the Court which passes the decree for recovery of land be make a decree for mesne profit, irrespective of the amount being within or beyond its jurisdiction.

(3.) We have been unable to reconcile on principle the decisions of this Court in the oases to which we have referred, and the result of these conflicting decisions is patent from the opposite courses adopted in this ease by the Courts below, the Munsif choosing to follow the case of Bhupendra Kumar Chakravarti V/s. Purna Chandra Bose [1910] 43 Cal. 650 and the Subordinate Judge preferring to follow the case of Pachuram V/s. Kinu [1913] 40 Cal. 56.