It does not seem to us to admit of any doubt that the cause of action for recovery of possession is not necessarily identical with the cause of action for recovery of mesne profits. The opening words of Rule 4 of Order 2 clearly point out that Order 2 itself treats the said two causes of action separately. That is the reason why it provides specially for joining claim for mesne profits in a suit for recovery of immovable property. But for such an express exception the general prohibition of uniting any other cause with the suit for recovery of immoveable property would have come into operation even in such cases. The last exception in Rule 4, i.e., claims in which the relief sought is based on the same cause of action, can be joined with a suit for recovery of immovable property, also lends considerable support to this conclusion. Rule 2 as seen above directs the inclusion of all claims in a single suit based on the same cause of action. That principle would govern a suit to recover immovable property.
The Legislature however did not want to permit the combination of any other cause of action with a suit for recovery of immovable property and in order to give effect to this legislative policy Rule 4 was enacted. Certain exceptions to this general prohibitory Rule were however considered necessary and thus apart from providing that in a suit for recovery of immoveable property other claims arising out of the same cause of action can be joined, it specifically provides that a claim for mesne profits or arrears of rent in respect of the property claimed can be joined with the suit for recovery of immoveable property. The irresistible conclusion, there-fore, which must follow from the said set of Rules, is that a cause of action for recovery of immovable property is distinct and separate from a cause of action for mesne profits of the property claimed.
14. It is perhaps relevant to mention in this connection that for a suit for recovery of immovable property twelve years limitation is prescribed, but for recovery of mesne profits the limitation fixed is three years. Thus the dates of the accrual of causes of action in both these cases would be different for the enforcement of which different periods of limitation are prescribed. Mesne profits accrue from day to day, and the cause of action in such a case therefore, would be a continuing one and arises out of the continued misappropriation of the profits to which the plaintiff is entitled. It is also pertinent to note that the facts which would constitute the cause of action in case of mesne profits are not necessarily identical in a suit for recovery of immovable property. In a suit for possession if the plaintiff proves his title and possession within 12 years of the suit that would normally be enough to decree his suit.
But in a suit for mesne profits he has not only to prove his title but has also to prove the period during which the unlawful possession of the defendant continued and the amount of mesne profits to which he is entitled. It is obvious that evidence in these two cases would be different. Although the rights to possession and mesne profits are found to be vested often in the same person as owner of the property, these rights may be, and very often are, vested in different persons. An infringement of a right to possession as owner does not necessarily involve an infringement of the right to get mesne profits. An infringement of right to possess immoveable property may entitle the possessor to sue for the remedies; viz., for damages for trespass (not by way of mesne profits) and for recovery of possession, but dons not of itself entitle him to claim mesne profits.
An infringement of the right to enjoy property by taking profits, entitles the person so permitted to sue for compensation for the loss sustained, that is, for the profits actually received by the defendant, or what might with due diligence have been received by him. It will thus be clear that the two wrongs give rise to two distinct causes of action, the first arising when the act of trespass is committed and the second when the mesne profits should have been receivable by the plaintiff but for the defendant's wrongful act. It should in this regard be remembered that there is a distinction between splitting of some cause of action into two or more suits and instituting different suits upon distinct causes of action. The present type of suit undoubtedly falls in the latter category and not in the first.
Andhra High Court
Abburi Rangamma vs Chitrapu Venupurnachandra Rao ... on 5 April, 1965
Equivalent citations: AIR 1966 AP 325
Bench: B Reddy, G R Ekbote
