Sunday, 7 August 2016

Whether one of co-owner is entitled to sue for mesne profits from trespasser?

Learned Counsel for Defendants-Respondents agrees that where property is held in coparcenary or in co-ownership it is not necessary for all the co-parceners or co-owners to join in a suit for the ejectment of trespassers and that a decree for the recovery of possession of the entire property can be passed even when the suit is brought by only one of the several coparceners or co-owners. The principle on which the rule is based may be thus stated. The right of each coparcener or co-owner extends to the whole property jointly with the others and the step taken to recover the property is for the obvious advantage of all the coparceners or co-owners. It is hardly necessary to cite authorities on this point. We may, however, mention Syed Ahmad Sahib Shutari v. The Magnetite Syndicate where some of the cases bearing on the subject are mentioned and Sheotahal Dube v. Lal Narain Prasad Chand MANU/UP/0024/1930 : A.I.R 1930 All 422. We are unable to see any reason why one of several co-owners should not also be entitled to recover from the trespasser the whole of the profits which are payable by the trespasser on account of his wrongful possession and the whole of the compensation payable on account of injury caused to the property. No valid reason has been shown for applying a different rule to a claim for mesne profits or compensation, from that applied to a claim for possession. 
Equivalent Citation : AIR 1942 All 358
IN THE HIGH COURT OF ALLAHABAD
First Appeal No. 200 of 1935
Decided On: 07.04.1942
Appellants: Ram Charan
Vs.
Respondent: Bansidhar and others
Hon'ble Judges/Coram:
James Joseph Whittlesea Allsop and Kamalakanta Verma, JJ.





1. This is a Plaintiff's appeal and arises out of a suit for possession of certain buildings, one of which is described as house No. 74 and the rest as shops bearing various numbers, They are all situated in the town of Konch, district Jalaun. There were also claims for the recovery of certain sums of money on account of mesne profits and damages. The Court below passed a decree for possession, but only partially decreed the claims in respect of mesne profits and damages. The present appeal is concerned with those portions of the claims for mesne profits and damages which have been dismissed.
2. One Ram Lal was the owner of the property in suit. On his dying childless, his widow, Mst. Rani Dulhin, succeeded to the property for a Hindu widow's estate. A man called Balkishen, who was the predecessor in title of Defendants 1 to 7, had a decree against one Genda Lal. In execution of that decree, Balkishen had the property now in suit attached. Mst. Rani Dulhin objected to the attachment of the ground that the property belonged to her and not to Genda Lal. The execution Court disallowed Mst. Rani Dulhin's claim and maintained the attachment. Mst. Rani Dulhin thereupon instituted a suit under Order 21 Rule 63 of the Code of Civil Procedure. This suit was dismissed by the Court of first instance on the 25th of October, 1920. Mst. Rani Dulhin filed an appeal in this Court against that decree. She died during the pendency of that appeal. Thereupon Ram Charan, who is the Plaintiff in the present suit, made an application in this Court praying that he might be permitted to continue the appeal which had been filed by Mst. Rani Dulhin and that his name might be brought on the record in Mst. Rani Dulhin's place. The application was based on the ground that the Applicant, Ram Charan, was a reversioner of Mst. Rani Dulhin's husband, Ram Lal. That application was granted by this Court and Ram Charan was substituted for Mst. Rani Dulhin as Appellant and was permitted to continue the appeal. On the 28th or May, 1924 this Court allowed that appeal and setting aside the decree of the trial Court, passed a decree declaring that the property in question formed part of Ram Lal's estate and did not belong to the judgment-debtor, Genda Lal and that it was consequently not attachable and saleable in execution of Balkishen's decree against Genda Lal. In the meantime, however, the property had been put to sale at the instance of the decree-holder, Balkishen, in various lots on the 31st of March and the 30th of May, 1921. House No. 74 was purchased by the decree-holder, Balkishen, himself. Of the shops, four were purchased by Sadhu Ram who is Defendant No. 8 in the present action and three were purchased by Kalka Prasad Tiwari, who is Defendant No. 9.
3. After the decision of this Court allowing the appeal and decreeing the suit filed under Order 21, Rule 63, Ram Charan filed an application for restitution of the property under Section 144 of the Code of Civil Procedure. That application was dismissed by the Subordinate Judge on the 14th of June, 1927 and an appeal to this Court against the decision of the Subordinate Judge was unsuccessful. The judgment of this Court was pronounced on the 19th of January, 1932 and it was pointed out that Ram Charan had misconceived his remedy in that an application for restitution did not lie under the law, but a suit for recovery of possession should be brought. Ram Charan, thereupon, on the 15th of July, 1932, instituted the suit giving rise to this appeal asking for the relief’s indicated above Balkishen, the decree-holder purchaser of house No. 74, having died, Defendants 1 to 7 were impleaded as his successors in interest and the two purchasers of the shop were made Defendants 8 and 9, as already stated. The suit having resulted in a partial dismissal by the Court below of the Plaintiff's claims in respect of mesne profits and damages, the Plaintiff preferred this appeal. The decree for possession over the property is no longer in controversy. A pedigree is given in the plaint and according to that pedigree, the Plaintiff, Ram Charan, was not the sole reversioner of Ram Lal. There are two other persons, Hari Ram and Mata Din, who are reversioners of equal degree. In paragraph 3 of the plaint it was stated that Ram Charan alone was substituted for Mst. Rani Dulhin as Appellant in the apneal in this Court because Hari Ram and Mata Din had "relinquished the right of heirship"; and that, according to Ram Charan, was apparently the reason for the application under Section 144 and the present suit being filed by Ram Charan alone. A plea of non-joinder having been raised by Defendants 1 to 7--who alone contested the suit--Ram Charan made an application that Hari Ram and Mata Din be impleaded as pro forma Defendants and that application having been granted, they were so added and became Defendants 10 and 11. One of the issues raised was whether Ram Charan was entitled to a decree for possession over the entire property or only to the extent of his one-third share. A similar question was raised with regard to the claims for mesne profits and damages. The Court below held that the Defendants being trespassers, Ram Charan alone was entitled to eject them and to recover possession of the whole property. That matter, as already stated, is not before us and the decree for possession over the entire property has become final. With regard to the mesne profits and the damages, however, the Court below held that Ram Charan could recover only one-third of such amounts as were proved. It may be mentioned that the allegation as to the relinquishment of their rights by Hari Ram and Mata Din does not appear to have been persisted in. In any event, the judgment of the Court below proceeds on the footing that their rights subsist and no contention has been raised before us with regard to it.
4.It is now necessary to give the details of the claims with which the appeal is concerned. It was claimed that the Plaintiff was entitled, in respect of each set of the properties, to mesue profits from the date on which the auction sale took place to the date on which the present suit was instituted. Taking the claim against Defendants 1 to 7 first, it was alleged by the Plaintiff that he was entitled to mesne profits in respect of the property in their possession--house No. 74--at the rate of Rs. 300 per annum from the 30th of May, 1921--the date on which that house was sold and was purchased by Balkishen to the 15th of July, 1932, when the present suit was instituted. A sum of Rs. 3,30 was claimed on this account. Interest on the mesne profits at the rate of 6 per cent per annum was claimed. It was further alleged that the building had been damaged in various ways by the decree-holder purchaser Balkishen and that the Plaintiff was entitled to a sum of Rs. 1,000 as compensation. The Court below found that the Plaintiff was entitled to mesne profits for a period of only three years next preceding the suit. It further found that the house in question could fetch only Rs. 50 and not Rs. 300, per annum. Having held, as already stated, that the Plaintiff was entitled only to a 1/3rd of the amount proved, the Court gave a decree for a total sum of Rs. 50 and allowed interest at the rate claimed. With regard to the damages, the finding of the Court below was that the Plaintiff had failed to prove that any damage had been caused to the property in question. It accordingly came to the conclusion that the Plaintiff was entitled to nothing under this head.
5. We come now to the claims against the two purchasers of the shops. These shops were sold on the 31st of March, 1921. As against Defendant No. 8 Sadhu Ram, mesne profits in respect of the four shops purchased by him were claimed at the rate of Rs. 150 per annum from the 31st of March, 1927, to the 15th of July, 1932, the total amount claimed being Rs. 1,650. Interest on this amount was claimed at the rate mentioned above. It was further alleged by the Plaintiff that two out of the four shops had fallen down owing to the negligence of Sadhu Ram and that he had appropriated the materials. A sum of Rs 1,000 was claimed as damages. The Court below held that mesne profits in respect of these four shops should be allowed at the rate of Rs. 125 per annum. Having held that the Plaintiff could recover only a 1/3rd share and holding further that a decree could be granted only for a period of three years ending with the institution of the suit, the Court passed a decree for Rs. 125 and allowed interest at the rate, claimed. It further found that the allegation of the Plaintiff that two of the shops had fallen down owing to the negligence of Sadhu Ram and that Sadhu Ram had appropriated their materials was correct. It further found that the Plaintiff had proved that the proper amount of compensation for the injury caused was Rs. 1,000. A decree for the recovery of 1/3rd of Rs. 1,000 was passed in favour of the Plaintiff.
6. Defendant No. 9, Kalka Prasad Tiwari, as already stated, had purchased three shops. Mesne profits in respect of these shops were claimed at the rate of Rs. 96 per annum from the date of the sale to the date of the institution of the suit, the total amount claimed being Rs. 1,056. Interest was claimed on this amount at the rate already mentioned. It was further alleged that one of the three shops had failen down owing to the negligence of Kalka Prasad Tiwari and that the Plaintiff was entitled to Rs. 600 as damages. On this part of the case the findings of the Court below, so far as the allegations of facts went, were in favour of the Plaintiff. It was held that the Plaintiff was entitled to mesne profits at the rate of Rs. 96 per annum. It was further found that one of the shops had fallen down owing to the negligence of Kalka Prasad Tiwari and that the amount of compensation was proved to be Rs. 600. In accordance with the view held by the Court below on the questions of law, a decree for Rs. 96 on account of mesne profits was granted and interest was allowed at the rate claimed. A decree was further passed in favour of the Plaintiff for the recovery of a sum of Rs. 200 on account of damages.
7. The first point raised by Learned Counsel for the Appellant is that the Court below was wrong in holding that the Plaintiff could recover mesne profits only for a period of three years before the institution of the suit. It has been argued that the Article 109 of the first Schedule of the Limitation Act, which is the article applied by the Court below, is not applicable. The Plaintiff's argument in the Court below was that the claim for mesne profits was governed by Article 144. That argument has not, for obvious reasons, been repeated by Learned Counsel in this Court. But it has been strenuously urged that, although the Plaintiff was not entitled to claim mesne profits for a period of eleven years next preceding the suit as set out in the plaint, he was entitled to recover for a period of six years before the suit because, Learned Counsel argues, there is no specific article in the Limitation Act which can be made applicable to such a claim and that therefore it must be governed by Article 120. The argument is that the Defendants having come into possession by virtue of purchases made at auction sales held under the orders of a Court, they could not be held to have appropriated the profits "wrongfully" within the meaning of Article 109 and that, therefore, the article was inapplicable and there being no other article which could be applied, the claim could come only under the residuary Article 120. Reliance has been placed on F.H. Holloway v. Guneshwar Singh (1903) 3 C.L.J. 182, with great respect to the learned Judges who decided that case, we would have found it difficult to follow it, even if it had not already come up for consideration in other cases. As matters stand, however, it is sufficient for us to refer to Saraj Ranjan v. Prem Chand Chowdhury (1917) 22 C.W.N. 263 (F.B.) and to the decision of their Lordships of the Privy Council in Mian Feroz Shah v. Mohammad Akbar Khan MANU/PR/0109/1939 : A.I.R. 1939 P.C. 178 : 1939 A.W.R. (P.C.) 148.
8. The next point urged by Learned Counsel for Plaintiff-Appellant is that the Court below was not justified in holding that the Plaintiff was entitled only to his share, namely, 1/3rd of the sums for which the various Defendants might be found liable on account of mesne profits and damages. The contention is that a decree should have been passed for the recovery of the whole amount found to be payable by the Defendants. In our judgment this contention is well founded. Learned Counsel for Defendants-Respondents agrees that where property is held in coparcenary or in co-ownership it is not necessary for all the co-parceners or co-owners to join in a suit for the ejectment of trespassers and that a decree for the recovery of possession of the entire property can be passed even when the suit is brought by only one of the several coparceners or co-owners. The principle on which the rule is based may be thus stated. The right of each coparcener or co-owner extends to the whole property jointly with the others and the step taken to recover the property is for the obvious advantage of al the coparceners or co-owners. It is hardly necessary to cite authorities on this point. We may, however, mention Syed Ahmad Sahib Shutari v. The Magnetite Syndicate where some of the cases bearing on the subject are mentioned and Sheotahal Dube v. Lal Narain Prasad Chand MANU/UP/0024/1930 : A.I.R 1930 All 422. We are unable to see any reason why one of several co-owners should not also be entitled to recover from the trespasser the whole of the profits which are payable by the trespasser on account of his wrongful possession and the whole of the compensation payable on account of injury caused to the property. No valid reason has been shown for applying a different rule to a claim for mesne profits or compensation, from that applied to a claim for possession. Learned Counsel, for Defendants-Respondents has, by way of analogy, referred to Section 45 of the Indian Contract Act (IX of 1872). Our attention has also been drawn to the cases of Pyari Mohan Bose v. Kedar Nath Roy and Shital Chandra Bairagee v. Manik Chandra Hazra(1909) 9 C.L.J. 331. A claim for mesne profits against a trespasser stands on a basis essentially different from a claim founded on contract. It is therefore, wholly unnecessary for us to deal with the section or the cases just mentioned. We may, however, mention that these cases do not support the argument put forward on behalf of the Defendants-Respondents. Learned Counsel for Plaintiff-Appellant has cited a decision of the Nagpur Chief Court in Nago v. Multanmal MANU/NA/0005/1926 : A.I.R. 1927 Nag 9. We agree with that decision.
9. Accordingly, we hold that the court below was wrong in coming to the conclusion that the Plaintiff could be granted a decree for only 1/3rd of the amounts proved on account of mesne profits and damages.
10. Learned Counsel for Plaintiff-Appellant has also questioned the correctness of the findings of the Court below on the questions of fact and has argued that the court below was wrong in holding that the Plaintiff had failed to prove as against Defendants 1 to 7 that he was entitled to any damages on account of injuries caused to the building and in holding that the rate of mesne profits recoverable from those Defendants was proved to be only Rs. 50 per annum. It has also been argued that the mesne profits recoverable from Defendant No. 8 should have been held to be Rs. 150 per annum, as claimed and that the Court below erred in fixing the mesne profits at Rs 125 per annum. On an examination of the evidence, however, we have come to the conclusion that it is not possible to hold that the findings of the Court below are wrong. The balance of evidence is clearly in favour of the conclusions reached by the Court below. Accordingly, we uphold the findings of fact recorded by the Court below on the points mentioned above.
11. The last point which has arisen for consideration is one urged on behalf of the Defendants-Respondents on the basis of a fact which has not yet been mentioned in this judgment. It appears that, some time after filing this appeal, the Plaintiff-Appellant, Ram Charan, died. It further appears that he was survived by two daughters, Mst. Lachho and Mst. Man Kuer, who were his heirs under the Hindu Law. Mst. Lachho alone applied to this Court for permission to continue the appeal filed by her father, Ram Charan and for substitution of her name as Plaintiff-Appellant in place of Ram Charan. This application was granted by an order passed by this Court on the 13.h December, 1941. It has been urged by Learned Counsel for Defendants-Respondents that the appeal must, in the circumstances just mentioned, be held to have abated to the extent of half, that is, to the extent of the share of Mst. Man Kuer in the inheritance. Reliance has been placed on the case of Sherpal Singh v. Aijaz Fatima MANU/UP/0206/1932 : 1932 A.L.J. 1029 : A.I.R. 1933 All. 91. We consider it sufficient for our present purpose to say that that case is distinguishable on the ground that the death of the Plaintiff in that litigation had taken place before the case had come up to this Court and that the point raised and decided was that the decree of the lower appellate Court was wrong inasmuch as it should have held that the suit had abated to a certain extent. The position in the case before us is different. Here the Appellant die after filing the appeal in this Court and by an order passed by this Court on the 13th of December, 1941, Musammat Lachho has been permitted to continue the appeal filed by Ram Charan and has been brought upon the record as a representative of Ram Charan entitled to continue the appeal filed by him. That must be held to be for the benefit of i the entire inheritance which came into being on the death of Ram Charan. Reference may be made to decisions in Muhammad Zafaryab v. Abdul Razzac (1928) 50 All. 857 : A.I.R. 1928 All. 91 Lilo Sonar v. Jhagru Sahu (1924) 3 Pat 853 : A.I.R. 1925 Pa. 123Govindaswami v. Annamalai MANU/TN/0349/1927 : A.I.R. 1927 Mad. 1071 and Mst. Umrao Begum v. Rahmat Ilahi MANU/LA/0019/1939 : I.L.R. 1939 Lah. 433 : A.I.R. 1939 Lah. 439. We may also refer to our judgment in Sheikh Mohammad Hammad v. Tej Narain Lal 1942 A.W.R. (H.C.) 164. The contention put forward on behalf of the Defendants-Respondents cannot, therefore be accepted.
12. The result is that the appeal must be allowed in part. Accordingly, we modify the decree of the Court below and direct that the amount of mesne profits recoverable from Defendants-Respondents 1 to 7 shall be Rs 150 and not Rs. 50 as decreed by the Court below. We further direct that the interest on such mesne profits hall be calculated on the footing that the mesne profits recoverable by the Appellant from Defendants 1 to 7 amount to Rs. 50 per annum. We further direct that the amount recoverable from Defendant-Respondent No 8, Sadhu Ram on account of mesne profits shall be Rs. 375 and not Rs. 125 as decreed by the Court below. Interest on the amount of these profits shall be calculated on the footing that Appellant is entitled recover mesne profits from Sadhu Ram at the rate of Rs. 125 per annum during the three years preceding the suit. It is also ordered that Appellant is entitled to recover from Defendant-Respondent Sadhu Ram the full amount of Rs. 1,000 on account of damages and not only 1/3rd of that amount. We further order that the decree for mesne profits against Defendant-Respondent No. 9, Kalka Prasad Tiwari, shall be for Rs. 238, instead of Rs. 96 as ordered by the Court below and that the decree for damages against Kalka Prasad Tiwari shall be for Rs. 600 and not for Rs. 200 as directed by the Court below. Interest on the mesne profits decreed against Kalka Prasad Tiwari shall be calculated of the footing that the Appellant is entitled to mesne profits for the three years next preceding the suit at the rate of Rs. 96 per annum. The rest of the appeal is dismissed. Parties shall pay and receive costs in proportion to success and failure.

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