Pandrang Row, J - (1.)This is an appeal by defendants 1 and 3 to 6 from the decree of the Subordinate Judge of Cuddalore dated 11 October, 1937, in O.S. No. 4 of 1933, a suit to recover mesne profits for fasli 1333 in respect of certain properties together with interest thereon. There was an earlier suit between the parties which related to these very properties for cancelling a certain lease granted in respect of them by the plaintiff's great-grandmother (second defendant) on the 8 of. August, 1923, for three years in favour of the first defendant. The properties in question belonged to the plaintiff who was. then a minor under the testamentary guardianship of the second defendant, the great-grandmother who had been appointed to manage the properties by the will of the plaintiff's father, one Thangaswami, dated 6 July, 1915. The testator died a few days later and in the previous suit there was no dispute as to the genuineness of the will. That suit was decreed and the appeal from the decree of the first Court was dismissed by the High Court on 30 August, 1932. There was some attempt made to take the matter to the Privy Council but the idea was finally abandoned and the decree of the High Court which dismissed the appeal with costs was the final decision in that suit. The present suit was instituted on the 14 of October, 1932, that is to say, one and a half months after the High Court had decided the suit in favour of the plaintiff who claims to have attained majority, being till then a ward of the Court under the Guardian and Wards Act, only after attaining her 21 year which, according to her, was on the 15 October, 1929. The present suit was twits instituted just before the lapse of the period of three years after attaining majority. The suit has been decreed by the Subordinate Judge and the present appeal is, as stated already, by defendants 1 and 3 to 6.
(2.)As in the Court below, in this appeal also, a good deal of argument bras been directed to the point of the alleged bar imposed by Order 2, Rule 2, Civil Procedure Code, to the present suit,, the appellants contention being that the present claim for mesne profits for fasli 1333 should either have been included or had actually been included in the earlier suit inasmuch as it arose out of the same cause of action. This point has been discussed by the Court below somewhat briefly and rightly so because the point is really concluded by the Full Bench decision in Ponnammal V/s. Ramamirda Aiyar (1914) 28 M.L.J. 127 : I.L.R. 38 Mad. 829 (F.B.), which has been subsequently followed in Khuddus V/s. Mohammad Hussain and it may also be added that no other High Court has taken a different view, and on the other hand there are several decisions of other High Courts which take the same view, namely, that a claim for past mesne profits need not be sued for in a suit for recovery of possession of the property in respect of which mesne profits are claimed by reason of Order 2, Rule 2, Civil Procedure Code. The only important reason given to us by the learned advocate for the appellants for not accepting the view of the lower Court on this point which merely followed the Full Bench decision in Ponnammal V. Ramamirda Aiyar (1914) 28 M.L.J. 127 : I.L.R. 38 Mad. 829 (F.B.) is, that in view of certain observations and the decision in a later Privy Council case Naba Kumar Hazra V/s. Radhashyam Mahis (1931) 61 M.L.J. 294 (P.C.), it must be held that the view taken by the Full Bench in Ponnammal v. Ramamirda Aiyar (1914) 28 M.L.J. 127 : I.L.R. 38 Mad. 829 (F.B.) is not correct. N6 doubt, it was also argued that as a matter of fact the claim to past mesne profits had been made in the earlier suit and therefore the present claim was not maintainable. There is, however, no substance in this contention. A perusal of the plaint in the former suit makes it perfectly clear that in so many words the past mesne profits due to the plaintiff in respect of the plaint properties was not included in the suit and that the plaintiff intended to bring a separate suit in respect of the same. In view of this specific statement, and in the absence of any language in the prayer portion of the plaint to show that any claim to past mesne profits was included in the plaint, it is impossible to accept this contention.
(3.)As regards the main argument, namely, that the Full Bench decision in Ponnammal V/s. Ramamirda Aiyar (1914) 28 M.L.J. 127 : I.L.R. 38 Mad. 829 (F.B.) is not good law, it is enough to say that nothing in the Privy Council judgment in Naba Kumar Hazra V/s. Radhashyam Mahis (1931) 61 M.L.J. 294 (P.C.) is really contrary to what has been stated by the Full Bench decision in Ponnammal v. Ramamirda Aiyar (1914) 28 M.L.J. 127 : I.L.R. 38 Mad. 829 (F.B.). The Privy Council case does not deal with a claim to masne profits in the first place. Secondly, it is a case in which the prayer that was made in the subsequent suit, namely, for taking accounts, was a prayer that could have been made on the same foundation of fact and law as the claim in the earlier case which was to declare that a certain trust existed and for reconveyance of certain properties. It is not as if this contention that the ; Full Bench decision in Ponnammal V/s. Ramamirda Aiyar (1914) 28 M.L.J. 127 : I.L.R. 38 Mad. 829 (F.B.) is not correct in view of the Privy Council decision in Naba Kumar. Hasra V/s. Radhashyam Mahis (1931) 61 M.L.J. 294 (P.C.) is a new argument put forward for the first time. A similar contention appears to have been pressed in Ramiah V/s. Thathiah A.I.R. 1937 Mad. 849 and repelled in that case; by Venkataramana Rao, J. It is not necessary to repeat the reasons given by the learned Judge for repelling this contention. We are in general agreement with what he has said in that case and we need only repeat some of the references which he has made in the judgment, namely. In re Kantheesparam Ekanathalingaswami Koil through its trustee Vedandyagam Pillai (1936) 71 M.L.J. : I.L.R. (1937) Mad. 284, Rama Kallappa V/s. Saidappa Sidrama (1934) I.L.R. 59 Bom. 454 and Ram Karan Singh V/s. Nakchhed Ahir (1931) I.L.R. 53 All. 951 (F.B.). In the last of these cases, there is a comparatively full discussion of the subject. It is enough to add that the law as laid down by the decision in Ponnammal v. Ramamirda Aiyar (1914) 28 M.L.J. 127 : I.L.R. 38 Mad. 829 (F.B.) merely reiterated and reaffirmed the law prevailing in Madras since Tirupati V/s. Narasimha (1887) I.L.R. 11 Mad. 210; which is a case of 1888 and the Full Bench decision in Ponnammal V/s. Ramamirda Aiyar (1914) 28 M.L.J. 127 : I.L.R. 38 Mad. 829 (F.B.), which is a case of 1914 has held the field without any judicial expression of any doubt regarding its correctness all these years. A further point is that no other High Court has sounded a different note, and on the other hand there are several decisions which take the same view. In these circumstances and having regard to the state of the authorities which are practically unanimous for so many years, it is impossible for us to accept the contention put forward on behalf of the appellants in this case. We therefore find that there is no bar imposed by Order 2, Rule 2, Civil Procedure Code, on the plaintiffs claim for mesne profits in this case.