It is necessary at the outset to distinguish between three different types of cases in which a question of profits or mesne profits might arise. (1) Suits for ejectment or recovery of possession of Immovable property from a person in possession without title, together with a claim for past or past & future mesne profits. (2) Suits for partition by one or more tenants-in-common against others with a claim for account of past or past & future profits. (3) Suits for partition by a member of a joint Hindu family with a claim for an account from the manager. In the first case, the possession of the defts. not being lawful, the plff. is entitled to recover "mesne profits" as defined in Section 2, Clause (12), Civ. P. C., such profits being really in the nature of damages. In the second case, the possession & receipt of profits by the deft, not being wrongful the plff's. remedy is to have an account of such profits making all just allowances in favour of the collecting tenant in common. In the third case, the plff. must take the joint family property as it exists at the date of the demand for partition and is not entitled to open up past accounts or claim relief on the ground of past inequality of enjoyment of the profit, except where the manager has been guilty of fraudulent conduct or misappropriation. The plff. would, however, be in the position of a tenant-in-common from the date of severance in status & his rights would have to be worked out on that basis. {Para 3}
4. Order 20, Rule 12, Civil P. C. deals with the first class of suit above referred to, while Order 20, Rule 18, Ideals with the second & the third categories. In view, however, of the considerable reliance placed on Order 20, Rule 12, Civil P. C. in Ghulusum Bivi v. Ahmadsa Rowther, 42 Mad. 296in dealing with the right of a plff. to profits accruing during the pendency of a partition suit, it is desirable to consider the scope of this provision. A claim for possession & a claim for past mesne profits have been held to be based on different causes of action, at any rate, in the decisions of this Court. Order 2, Rule 4, Civil P. C. however permits their joinder in one suit. There is a material difference between a claim for past & a claim for future mesne profits. Order 7, Rule 2, Civil P. C. & Section 7 Sub-section (1), Court fees Act, require that the amount of past mesne profits claimed should be approximately stated in the plaint & ad valorem court-fee should be paid on such amount. These provisions can have no application to future profits, for it is not possible for the plff. to predicate how long the litigation is going to last or give even an approximate statement of the amount of mesne profits that might become payable at the end. The cause of action for future mesne profits is the plff's. being kept out of possession during the suit & arises subsequent to the suit. In empowering Courts to award future mesne profits Order 20, Rule 12, Civ. P. C. makes an exception to the general rule that a plff. can only sue on such cause of action as has arisen on the date of instituting his suit. The object is to avoid the multiplicity of litigation that would result if persons, unlawfully kept out of possession of their lands were obliged to file suits every three years for mesne profits accruing after the institution of a suit in ejectment & during its pendency in the original & appellate Courts. But the plff. could not claim future mesne profits as a matter of right, the cause of action for such profits not having arisen to him at the date of the suit. Hence it is that the power of the Court to award mesne profits subsequent to the suit has been held to be discretionary & a mere omission, as distinguished from a refusal, to grant future mesne profits asked for, has been held not to bar a fresh suit for that relief. Doraiswami v. Subramania, 41 Mad. 188. In re Ekanathalingaswami, I.L.R. (1937) Mad. 284. Section 11, Court-fees Act, (as amended in Madras) requires payment of court-fee on future mesne profits only if the plff. desires to execute the decree awarding him such profits. The Judicial Committee interpreting the provisions of Section 196, Civ. P. C. of 1859 & this Court, construing the corresponding provisions of Order 20, Rule 12 held that whether a plaint contained or not a claim to future profits the Court has the power to grant them under these special provisions, Fakharuddin Mohamed Ashan v. Official Trustee of Bengal, 8 Cal. 178 & Kemgamswami v. Subbamma, 53 Mad. 838. When the Legislature has expressly empowered the Court to grant relief for future mesne profits, that is to say, in respect of a cause of action arising subsequent to the suit, there is no reason to circumscribe this power by importing a qualification that there must have been a specific prayer in the plaint for the recovery of such unascertainable & unpredictable profits. Future mesne profits could, we think, well be awarded as part of the general relief to which a plff. is entitled.
IN THE HIGH COURT OF MADRAS
FULL BENCH
Civil Revn Petn No. 1695 of 1948
Decided On: 02.02.1951
Babburu Basavayya and Ors. Vs. Babburu Guravayya and Ors.
Hon'ble Judges/Coram:
P.V. Rajamannar, C.J. Vishwanatha Sastri and A.S. Panchapakesa Ayyar, JJ.
Author: P.V. Rajamannar, C.J.
Citation: AIR 1951 Madras 938.
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