HARPAL Vs. RAM SARUP

JUDGEMENT

(1.) THE plaintiff in his plaint alleged that a usufructuary mortgage had been made in favour of his predecessor in title in the year 1898, and that under this mortgage his predecessor in title entered into possession and remained in possession until he was wrongfully ousted by the defendant several years before the institution of the suit. He claimed possession of the properly and the sum of Rs. 360 damages for throe years prior to the institution of the suit. It seems to us that, if the plaintiff was able to establish the facts he alleged, his suit was a suit for possession together with a claim for mesne profits. Beyond all question this was the suit he ought to have brought and the relief ought to have been granted on the basis of the suit being one for possession and mesne profits. THE facts as ascertained are that a usufructuary mortgage was made to the predecessor in title of the plaintiff in the year 1898, and that the mortgagee entered into possession (as he was entitled to do) and remained in possession until about 7 years before the institution of the suit, when he died. THE plaintiff then became entitled to the property, but appears to have neglected to assert his rights. He lived some distance from the property and the defendant taking advantage of his absence began to recover the rents and profits from the tenants. This in law clearly amounted to an ouster by the defendant of the plaintiff.

(2.) SOME confusion seems to have arisen as to the meaning of the word "property" in Article 109 of schedule I to the Limitation Act which prescribes a period of three years for the recovery of profits of immovable property "belonging to the plaintiff" which have been wrongfully received by the defendant. It has been argued that the words "belonging to the plaintiff" refer to the property of the plaintiff and that in the present case the property could not be said to "belong" to the plaintiff because it belonged to the defendant the mortgagor. This seems to us a wholly unsound contention. If property is granted to another by lease for, say, a period of 20 years, the property is clearly the property of the lessee so as to entitle him to bring a suit for mesne profits if he is wrongfully deprived of them during the term of the lease. So also where under a mortgage the mortgagee is entitled to enter into possession of the mortgaged property and receive the rents and profits, the property "belongs" to the mortgagee during the continuance of the mortgage. A suit for mesne profits can always be brought and maintained by any person who, being entitled to possession of the land, has been wrongfully dispossessed. We think under the circumstances of the present case the plaintiff was most clearly entitled to three years mesne profits. The amount of mesne profits has been ascertained by the Munsif. While we do not entirely agree with the reasons in the judgement of the learned Judge of this Court we think the decree passed by him was correct. We accordingly dismiss the appeal with costs.