PEARY MOHUN ROY Vs. KHELARAM SARKAR

JUDGEMENT

(1.) The plaintiff was the owner of a putni mehal under the Maharaja of Burdwan. The mehal was sold under Reg. VIII of 1819 for arrears of rent for the year 1306 and was purchased by the first defendant. The sale took place on the 18 May 1900. After wards, the first defendant transferred the property to the second defendant, his wife. The plaintiff instituted a suit (No. 64 of 1900) for setting aside the putni sale and obtained a decree for possession on the 27th February 1901. He took possession on the 11 September 1901. During the period between the 18 May 1900 and the 11 September 1901, the defendants, or either of them, were in possession of the putni property. The plaintiff instituted the present suit for mesne profits for the period that the defendants were in possession, namely, from 18 May 1900 to 11th September 1901.

(2.) It is admitted that the claim for the amount, if any, recovered by the defendants or either of them within three years of 6 April 1904 (the date of the institution of the suit) is not barred by limitation.

(3.) The question argued in the lower Courts and also before us is whether the claim for mesne profits for the period before three years of the institution of the suit, i.e., the period from 18 May 1900 to 5 April 1901 is barred by limitation. The lower Courts were of opinion that Art. 120 of the Second Schedule of the Limitation Act applied to the case and not Art. 109 of the same Schedule as contended for by the defendants. In support of the view which the lower Courts took, they relied on the decision of this Court in Dhanput Singh v. Saraswati Misrani 19 C. 267. That was, however, a case not of mesne profits but of rent and the question raised in it was whether the plaintiff who was the landlord and was in possession, having himself purchased at the sale under the putni regulation, could sue for rent for the period during which he was in possession. The answer was that the plaintiff was not a trespasser within the meaning of the rule that a landlord who causes trespass on the land of his tenant is not entitled to rent for the period of his trespass. All that the Court held in that case was that it was not a trespass of that kind, that the case was distinguishable and that the plaintiff would be entitled to recover rent after giving credit for the amount, if any, that he actually recovered from the tenants in occupation.