GANGABAI Vs. KANHAIYALAL

JUDGEMENT

(1.) THIS second appeal arises out of the Plaintiff -Appellant's suit for the recovery of Rs. 600/ - as her share of the profits of certain lands situated in Mouja Bagera for the years Samvat 2000, 2001 and 2002. The Plaintiff sought to recover this amount, also in the alternative, as damages for the use and occupation of the lands by the Defendants. The Plaintiff -Appellant sued on the allegations that the land in Mouja Bagera was the ancestral property of a joint family consisting of her deceased husband and the Defendants; that she was a recorded co -tenant of the land and had one -third share in it and that since the year Samvat 1997, the Defendants were in possession of her share of the land with her permission and that they had not paid to her, her share of the profits of the land for the year Samvat 2000 2001 and 2002 at the rate of Rs. 200/ - per annum. It was further stated by the Plaintiff that previous to the institution of the present suit, she had instituted a suit for the recovery of the amount; of profits for the years Samvat 1997, 1998, 1999 and that the suit was decreed in her favour. The Plaintiff pleaded in the alternative that if the Defendants be held to be in possession of her share in the land without her permission, then her claim be decreed as damages for the use and occupation of the land by the Defendants. The Defendant -Respondents admitted that the Appellant Gangabai was a recorded co -tenant of the land but denied that the land in question was a joint family property or that Gangabai had any share in it. They resisted the suit also on the ground that it was barred by Order 2 Rule 2 inasmuch as in the previous suit for mesne profits, the Plaintiff Gangabai did not seek the relief of possession of the land, she was not now entitled to claim the possession of the land, and that therefore he could not claim any mesne profits.

(2.) THE learned Munsiff of Tarana who tried the suit, found that Gangabai was a recorded co -tenant of the land and had one -third share in the profits thereof and was, therefore, entitled to recover Rs. 600/ - as her share for the three years from Samvat 2000 to 2002. He also held that the land was the property of the ,Joint family constituted by the Defendants and Gangabai's deceased, husband. But he dismissed the Plaintiff's suit on the ground that Gangabai having failed to sue for possession of the land in the previous suit her present suit for mesne profits was barred under Order 2 Rule 2. In coming to this conclusion; the learned Munsiff followed 'Saghir Hassan v. Tayab Hasan' : AIR 1940 All 524 (A); 'Mahomed Yunas v. Mt. Tahan Sultan' AIR 1942 Pesh 9 (B) and 'Tayyab Hasan v. Saghir Hasan' : AIR 1939 All 52 (C). The Plaintiff, thereupon, appealed to the court District Judge Shajapur. The ' learned District Judge only considered the question of the applicability of Order 2 Rule 2 and agreeing with the decision of the trial court on the point, upheld the decree of the trial Court dismissing the Plaintiff's suit. The Plaintiff has now appealed to this Court from the decision of the District Judge Shajapur.

(3.) THE argument of Mr. Chitale, learned Counsel for the Respondent, was that in the courts below it was not the case of the Appellant that the Respondents being her co -sharers, the possession and the receipt of profits by them could not in law be wrongful and that therefore, her right to such profits was not as mesne profits received by a person in wrongful possession but as appurtenant to her right in the share of the property and that, therefore, she was entitled to sue for the recovery of those profits for any period whenever the Defendant co -sharers realised her share of profits and withheld them from her. Learned Counsel for the Respondent drew my attention to the decision of the Indore High Court in an appeal arising out of the previous suit of the Appellant Gahgabai and said that by that decision Gangabai's claim for the profits of the years Samvat 1997 to 1999 was regarded as a claim for mesne profits and decreed on the admitted fact that the Respondents had ousted Gangabai from her rights and denied her claim to a share. It was further said that as the present suit of the Plaintiff was framed to fit in with the decision of the Indore High Court in the previous suit,could not but be regarded as one for the covery of mesne profits from persons in possession without title. Referring to the tests laid down by the Privy, Council in 'Mahomed Khalil Khan v. Mahoyb Ali Mian' : AIR 1949 P.C. 78 (H) to determine "whether the causes of action in two claims are different or the same, learned Counsel argued that the causes of action in Gangabai's former suit and the present suit, were the same, namely, the Plaintiff's being kept out of possession' and that as Gangabai failed to sue for possession in the previous suit, she was not entitled to file a second suit claiming mesne profits for the period subsequent to the previous suit during which she was kept out of possession by the Defendant. Learned Counsel for the Respondents proceeded to say that there was no doubt a conflict of opinion as to whether a suit for the mesne ' profits bars a subsequent suit for possession or for mesne profits, and commended for acceptance the view that a second suit for mesne profits or possession is barred by Order 2, Rule 2 by saying that the contrary view which regarded a claim for possession and a claim for mesne profits as founded on two different causes of action was difficult to reconcile with the opinion of the Privy Council in 'Naba Kumar Hazra v. Radhashayam Mahish' : AIR 1931 P.C. 299 (I) to the effect that a claim for mesne profits rested on the same foundation of facts and law as the right to seek possession of the property. In support of this submission, Mr. Chitale further relied on 'Channappa Girimalappa v. Bagalkot Bank' : AIR 1942 Bom 338 (J) where it is observed that the provision in Order 2 Rule 4 Code of Civil Procedure, that no cause of action shall, unless with the leave of the court be joined with a suit for the recovery of immovable property, except claims for mesne profits or arrears of rent, is a provision "inserted ex abundanti cautela without intending to lay down that the causes of action for possession and for mesne profits or arrears of rent accruing were distinct."