Rajeshwari Prasad, J. - (1.) THIS second appeal has come up for hearing before us as a result of an order of a learned Single Judge of this Court requiring the second appeal to be referred to a larger Bench for disposal.
(2.) THIS is a Defendant's second appeal against the judgment of the II Additional Civil Judge, Agra, confirming the decree of the trial court and decreeing Plaintiff's suit for damages. The Plaintiff -Respondent Sri Nanak Ram filed the suit giving rise to this second appeal for recovery of Rs. 1,598/ - as arrears of mesne profits, or damages for use and occupation, with the allegation that he constituted a joint Hindu family with his j father Mangoo Mal, who died on 28 -9 -1959. Thereafter, the Plaintiff became the manager and karta of joint Hindu family constituted by himself and his sons. Sri Radhey Shyam, Defendant -Appellant was said to be the tenant of the property in suit situate at Rawat Para, Agra on a monthly rent of Rs. 27/8/ - . It was alleged that the father of he Plaintiff had determined the tenancy of the Defendant and had also filed suit No. 756 of 1952 in the court of Munsif, Agra for recovery of rent and for ejectment as well as for pendente lite and future mesne profits. That suit was decreed on 13 -8 -1954 but only for the recovery of arrears of rent for two months, namely, September and October 1952. The suit was dismissed as regards the relief of ejectment. It was not indicated whether the suit for recovery of mesne profit and damages was decreed or dismissed. Against that decree the Plaintiff's father filed an appeal which was registered as Civil Appeal No. 226 of 1954 and was decided by Judge Small Causes, Agra on 16 -1 -1957. The learned Judge decreed the Plaintiff's suit for ejectment also. In pursuance of the decree of the appellate court, Plaintiff took possession of the suit property from the Defendant on 25 -7 -1958. It was then alleged that as the Defendant had remained in possession of the property till 25 -7 -1958, he was liable to pay damages for use and occupation from 1 -11 -1952 upto 25 -7 -1958. Such amount as was said to have become barred by time was given up and suit was filed for recovery of the amount which was not barred by time.
(3.) THIS suit was contested by the Defendant on the grounds inter alia that the Plaintiff did not constitute a joint Hindu family with his father Mangoo Mai and the property was self acquired property of the latter. Suit was incompetent for want of succession certificate. Plaintiff's father had filed appeal No. 226 of 1954, referred to before, in respect of relief of ejectment only and not in respect of his claim for pendente lite and future mesne profits. This being so, the Plaintiff must be deemed to have abandoned that part of his claim and consequently, the instant suit was barred by Order XXIII Rule 1 and Order II Rule 2 Code of Civil Procedure. A second appeal was said to have been filed against the judgment of the first appellate court and that was still pending. The claim of the Plaintiffs, was said to be barred by limitation. Plaintiff was not entitled to claim any interest and further that Plaintiff's suit was barred by Section 11 Code of Civil Procedure. It was also alleged that the suit as framed was not maintainable and the court had no jurisdiction to entertain the same.;