TADEPALLI RAMIAH ALIAS RAMASASTRI Vs. MADALA THATHIAH

JUDGEMENT

(1.) This second appeal arises out or a suit instituted by the plaintiffs for recovery of mesne profits for faslis 1337 to 1339 from the defendants. The District Munsiff of Guntur gave a decree but it was reversed by the Subordinate Judge of Guntur on the ground that the action is barred by Order 2 Rule 2 Civil Procedure Code. The plaintiffs filed a suit (O.S. No. 1013 of 1927) on the file of the District Munsiff of Guntur for recovery of possession of the land in respect whereof the mesne profits are claimed. They also claimed in that suit mesne profits both past and future, but while giving a decree in plaintiffs favour, the District Munsiff did not pass a decree for mesne profits subsequent to suit and the reason given by him is thus stated in paragraph 30 of his judgment in the said suit: No provision is made for recovery of subsequent profits, as it was represented that the 1 plaintiff had filed a suit in the Sub-Court, Guntur, for recovery of them.

(2.) The suit referred to in the said order was filed by the plaintiffs during the pendency of the above action in the Sub-Court, Guntur, for recovery of mesne profits for the said three faslis and for damages but after the decree in O.S. No. 1013 of 1927 the claim for damages was given up in consequence whereof the Sub-Court, Guntur, returned the plaint filed before it for presentation to the District Munsiff of Guntur on the ground that it had no jurisdiction to try the suit, and accordingly the plaint was re-presented and filed before the District Munsiff of Guntur and it was there numbered as O.S. No. 637 of 1931. It is this suit which has now come up in second appeal.

(3.) According to the decisions of our High Court, the suit would be sustainable, but the learned Subordinate Judge was of the opinion that the recent decision of the Privy Council in Naba Kumar Hazra V/s. Radhashyam Mahis (1931) 61 M.L.J. 294 (P.C.) was conclusive on the matter. The construction placed by him on the said decision was that a claim for mesne profits such as laid in the plaint in this suit arises out of the same cause of action for possession. He therefore felt himself compelled to decide against the plaintiffs. This view is also pressed by Mr. Jagannadha Das on behalf of the respondents before me and he contends that the Privy Council decision must be held to have overruled all the decisions of this High Court as well as the other High Courts on this point. It is therefore necessary to see if the decision of the Privy Council leads to the said result. On the careful reading of the said case it seems to me that no question of mesne profits was involved in the said case at all. The facts of the said case were as follows: A pleader who was appearing for judgment-debtors in a mortgage suit had the decree in the said suit purchased benami in the name of his wife and began to execute it. The judgment-debtors having come to know the said fact filed a suit to have it declared that it was really a purchase benami for the pleader and that the pleader was the real purchaser and prayed for appropriate reliefs in the action. During the pendency of the suit, the property was sold, in consequence whereof necessary amendments were permitted to be made in the plaint in and by which they were enabled to claim a conveyance of the said decree and the said property with necessary accounts and the plaintiffs in that suit were given a decree for possession and it was pointed out in the judgment of the Privy Council that the claim for accounts was abandoned. Subsequent to the decree for possession, some of the judgment- debtors instituted an action for recovery of rents and profits of the property received by the purchaser after the purchase and before the conveyance. The question was whether this claim was barred under Order 2, Rule 2, Civil Procedure Code. Their Lordships of the Judicial Committee were of the opinion that it was a relief which could have been claimed in the previous suit. The basis for their Lordships opinion was that by reason of the purchase of the decree and the property the purchaser became a trustee for the judgment-debtors and the claim for rents and profits formed part of the claim arising out of the cause of action in the former suit. The action was not construed as one for mesne profits. There was no question of wrongful possession by the purchaser because he must be deemed to have been in possession on behalf of the judgment-debtors and his possession was their possession. The claim was in substance to recover the property which was held by the purchaser on their account and the claim for profits was only as part of the claim for restoration of their property. It is one and the same claim and the cause of action was considered to be one and the same. Mr. Jagannadha Das laid considerable emphasis on the following observations of their Lordships of the Privy Council, in that case: The cause of action in the present suit is, their Lordships think, clearly the same as in the previous suit; the right to the rents and profits vested on the same foundation of facts and law as the right to have the purchase of the decree and of the properties declared to be purchases for the mortgagors.