RAM CHARAN SAHU Vs. GOGA

JUDGEMENT

(1.) This is a plaintiff's ap peal arising out of a suit for recovery of possession. This case has a long history behind it, which it is not necessary to recite at length. For the purpose of this appeal the facts may be briefly stated as follows: Certain mortgagees brought a suit for sale against the original mortgagor and against one Mt. Sheo Lagna, an ostensible transferee of the property. When impleaded she stated to the Court that she was not the real owner, but that her sons were the real owners and they ought to be impleaded. The mortgagees for some reason not quite apparent resisted the attempt to bring the sons of Mt. Sheo Lagna on the record. They obtained a decree against the lady behind the back of her sons. They put to sale the right, title and interest of Mt. Sheo Lagna, and themselves purchased that right, title and interest at an auction sale. They then applied for possession which was formally granted to them in the year 1900. On the strength of this formal delivery of possession they succeeded in ousting the sons, who had not been made parties to the mortgage suit at all. In 1911 the sons instituted a suit to recover possession of the property on the ground that they were the real owners and that they had been wrongfully dispossessed. It is important to note that, in addition to the relief for possession the sons claimed not only past mesne profits but also pendente lite and future mesne profits. The first Court dismissed the suit, but the District Judge remanded it. This case came up in appeal to the High Court and it was finally decided between the parties that the former litigation did not operate as res judicata against the plaintiffs and the remand order was upheld, vide Mata Prasad V/s. Ram Charan Sahu [1914] 36 All. 446. On the 9 of July 1915 the trial Court decreed the plaintiffs claim on payment of a certain sum. On appeal the District Judge upheld the conditional decree but reduced the amount. On the 20 July 1920 the High Court in second appeal held that the plaintiffs had been wrongfully dispossessed by the auction purchasers and were accordingly entitled to an unconditional decree for possession without payment of any amount whatsoever. The learned Counsel who appeared for the plaintiffs apparently did not bring to the notice of the High Court that the plaintiffs had in the plaint claimed mesne profits pendente lite and future. There was accordingly an omission to make any order as regards mesne profits which had accrued.

(2.) The plaintiffs did not apply for a re view of judgment and did not take steps to obtain any decree for means profits in their favour. But on the 10 of May 1922 they instituted the present suit for recovery of mesne profits from the 16 of December 1911 till the 3 of September 1917, namely from the date of the institution of the previous suit till the date of the delivery of possession of the property to them. This suit was contested by the defendants on the ground that the present claim was barred by the principle of res judicata on account of the previous litigation, and that in any case part of the claim was barred by time.

(3.) The learned Subordinate Judge relying on certain rulings of this High Court has held that the present suit is not barred by the principle of res judicata. He has, however, held that the claim to recover mesne profits for more than three years prior to the present suit is barred by time.