Khub Lal Singh vs Raghubans Narayan Singh and Others

Das, J.—This case has a long history; but the only point before us is a short one. The respondents instituted a suit against the appellant so far back as the 8th July 1909, for the purpose of being put in joint possession of certain lands and for recovery of certain mesne profits as against the defendant. I do not propose to trace the history of the litigation. It appears that the defendant had ticca leases which expired in 1315 and the learned Subordinate Judge on 4th February 1919 held that the plaintiffs were not entitled to a decree for joint possession, but were entitled to a decree for possession

from the defendant 1 for the 63 bighas 4� dhurs land from the date of expiry of the lease in 1315.

This decree was substantially affirmed by this Court on appeal. It is relevant to mention that in passing the decree which ho did the learned Subordinate Judge was influenced by the decision of the Judicial Committee in Watson and Co. v. Ramchund Dutt [1891] 18 Cal. 10

The proceedings which have given rise to this appeal were then taken by the plaintiffs for the ascertainment of compensation due to them from the defendant. The plaintiffs claimed mesne profits from 1316-32 and asked the Court to hold that Rs. 1,71,669-6 9 was due to the plaintiffs. The first question which the learned Subordinate Judge had to try was whether the plaintiffs were entitled to any compensation

for the period subsequent to the suit and if so up to what time.

Now it will be remembered that a decree for joint possession was denied to the plaintiffs and the learned Subordinate Judge conceded that the provision of Order 20, Rule 12. did not apply; but he thought that

the provision of Order 20, Rule 12, should be applied so far as the circumstances of the case permit.

In the end he held that the plaintiffs are entitled to compensation

till the expiry of three years from the date of decree, which would be the date of the final decree of the High Court, i. e., 7th March 1923; and as the application was filed February 1926 be held that the plaintiffs were entitled to compensation for the entire period for which the claim has been made.

He referred the matter to a commissioner to ascertain the actual amount due to the plaintiffs.

From this order the present appeal has been preferred and it has been contended on behalf of the respondents that the order of the learned Subordinate Judge not being a final order no appeal lies to this Court. This contention must, however, be rejected: see Bhup Indar Bahadur v. Bijai Bahadur [1901] 23 All. 152, Nand Kumar Singh v. Bilas Ram [1918] 3 Pat. L.J. 67, and (Raja) Peary Mohan Mookerjee Vs. Manohar Mookerjee, .

But now the question arises as to whether the plaintiffs are entitled to ask the Court to ascertain the compensation due to them for any period after the institution of their suit. It has been contended before us on behalf of the appellant that the plaintiffs have no cause of action in respect of any claim that may have accrued to them since the date of the institution of the suit and that but for the provision of Order 20, Rule 12, the Court would have no jurisdiction to grant the plaintiffs a decree directing an enquiry as to mesne profits from the institution of the suit until the delivery of possession to the decree-holder or the relinquishment of possession by the judgment-debtor with notice to the decree holder from the expiration of three years from the date of the decree. It appears to me that Order 20, Rule 12, relates to a claim for mesne profits, that is to say, it relates to a claim where the defendant is in wrongful possession of the disputed lands; but in this case the defendant was not in wrongful possession of the lands claimed in the suit. As I have said the Court, in dealing with the title suits based its decision on Watson''s case [1891] 18 Cal. 10. It was held in that case that if there be two or more tenants-in-common, and one A be in actual occupation of part of the estate, and is engaged in cultivating that part in a proper course of cultivation as if it were his separate property, and another tenant-in-common B attempts to come upon the said part for the purpose of carrying on operations there inconsistent with the course of cultivation in which A is engaged and the profitable use by him of the said part, and A resists and prevents such entry, not in denial of B''s title, but simply with the object of protecting himself in the profitable enjoyment of the land, such conduct on the part of A would not entitle B to a decree for joint possession nor to an order for injunction. If this be so it is impossible to say that the possession of A under the circumstances mentioned by their Lordships of the Judicial Committee is a wrongful possession. It is for this reason that the Judicial Committee gave the plaintiff in that suit a decree for compensation and not a decree for mesne profits. In my opinion the principle of Order 20, Rule 12, is not applicable to this case.

Now if that be so, then, are the plaintiffs entitled to a decree for compensation in respect of a period subsequent to the institution of the suit? I think not; for it is the general rule that the Court has no jurisdiction to give the plaintiffs a decree in respect of a cause of action that had not accrued to them at the date of the institution of the suit. It is said that in Waton''s case [1891] 18 Cal. 10 the plaintiffs recovered from the Judicial Committee a decree for a sum of money calculated on a certain basis up to the date of the decree passed by the primary Court. It appears to me that that period was taken by the consent of the parties; and in any event there is no adjudication of the Judicial Committee on this point. It appears to me that in dealing with a case of this nature we must keep in view the distinction between compensation and mesne profits which has not been done in this case,

I would accordingly allow the appeal, set aside the order of the learned Subordinate Judge and direct that the plaintiffs do recover from the appellant compensation for the period from the date of the expiry of the lease up to the date of the institution of the suit.

The appellant is entitled to the costs of this appeal. The application for stay will be discharged.

Kulwant Sahay, J.

I agree.