Ramachandra Rao, J.
1. In this appeal, the plaintiff whose claim formesne profits has been negatived for the major portion is the appellant.
2. The facts leading up to the present appeal are briefly as follows: The plaintiff is the owner of certain lands, wet and dry, of the extent of 16 acres in Kailasapatnam agraharam withinthe Visakhapatnam district. She filed a suit O. S. No. 90 of 1943 on the file of the court of the District Munsif of Yellamanchiji for the ejectment of the defendants from the suit land, for recovery of possession thereof with arrears of rent and for future mesne profits. The claim was laid on the footing that the plaintiff is the owner of the property, which she leased out to the defendants as yearly tenants.
The lease was terminated by a registered notice to the 1st defendant on 30-12-1941 and that is how the plaintiff claimed the relief for possession. The suit was decreed in favour of the plaintiff on the 21st of August, 1944 negativingthe contention of the defendants that the suit property formed part of an estate within the meaning of section 3 (2) (d) of the Madras Estates Land Act. Besides a decree for possession, there was a preliminary decree for mesne profits from thedate of the institution of the suit until delivery of possession. There was an appeal preferred by the defendants in A. S. No. 499 of 1944 on the file of the District Court, Visakhapatnam.
The District Judge passed an order dated the 3st of January, 1945 setting aside the judgment and the decree of the lower court and remanded the suit for fresh disposal as by that time the definition of 'estate' was amended by the Madras Act II of 1945, and the question whether the defendants had occupancy rights had to he investigated afresh. The order of remand was confirmed by the Madras High Court on 13th July, 1946 in C.M.A. No. 193/1945. After the suit wasrestored to its file, it resulted once again in a decree for possession. But on this occasion for some reasons unexplained, a preliminary decree for future profits was not granted but instead the relevant portion of the decree run thus:
'The claim for subsequent profits be lett open for determination in a separate suit'. This decree was taken up in appeal by the defendants to the Subordinate Judge, Visakhapatnam in A.S. No. 267/1948 with no success, and a further appeal to the High Court in S.A. No. 54 of 1949 by them was also dismissed on 19-12-1952-It may however be noted that the plaintiff did not prefer either a cross-appeal or a memorandum of objections with respect to the disallowance of mesne profits subsequent to suit. The plaintiff decree-holder thereafter recovered possession of the suit property on the 26th February, 1953.
3. The suit out of which the present appeal arises was thereafter filed on the 16th. April, 1955 praying for a decree for a sum of Rs. 11,498, being the mesne profits from the suit land from 7-4-1943 the date of the plaint in O.S. No. 90/43 District Munsif's Court, Yellamanchili till the 26th February, 1953 the date on which possession was delivered. The cause of action for mesne profits is said to have arisen only on the 19th December, 1952 when the High Court of Madras finally confirmed the decree of the District Munsif, Yellamanchili and that until then the rights were not declared finally so as to enable the plaintiff to sue for the recovery of mesne profits.
The defendants pleaded that the suit is barred by limitation under Article 109 of the Limitation Act except for a period of three years prior to the institution of the present suit. Thus, it is conceded that the claim for mesne profits between 16-4-1952 and 26-2-1953 is alone enforceable and is not barred, the rest of the claim being barred by time. This contention was accepted by the lower court. It accordingly passed a decree for determination of the mesne profits for the said period and dismissed the suit for recovery of the profits for the rest of the period.
4. The plaintiff has preferred the above appeal and it is urged before us that the suit is governed not by Article 109 of the Limitation Act, but by Article 120 which gives the plaintiff the period of six years from the date when the cause op action accrues. It may be noticed that Article 120 is a residuary Article and resort cannot be had to it unless no other Article is attracted. Vide Sharoop Dass Mondal v. Joggessur Roy, ILR 26 Gal 564 at p. 567 (FB) and Vedagiri Sastriar v. Jagthguru Sankarachariar, at Kumbakonam, 68 Mad LJ 132, at p 135 : (AIR 1935 Mad 128 at P 129). We have no doubt that on the pleadings the claim clearly falls within Article 109 which reads as follows:
'109. For the profits of immovable property belonging to the plaintiff which have been wrongfully received by the defendant. Three years, when the profits are received'. The plaintiff has categorically stated in the plaint that during the period for which the mesne profits are claimed, the defendants are in unlawful possession and that they are liable to pay the plaintiff mesne profits. Thus the claim clearlyfalls within the letter and spirit of Article 109 of the Limitation Act.
5. But the appellant's learned counsel contends that his title to the property has finally come to he established by the dismissal of the second appeal by the High Court on 19-12-1952, and that until that date the institution of any suit for mesne profits would have been a futile one. In support of his argument, the learned counsel has drawn Our attention to the observations of the Privy Council in the case reported in Bassu Kuar v. Dhum Singh, ILR 11 All 47 (PC) which runs thus :
'It would be an inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation under peril of losing his property if he does not. And it would be a lamentable state of the law if it were found that a debtor who for years has been insisting that his creditor shall take payment in a particular mode, can, when it is decided that he cannot enforce that mode, turn round and say that the lapse of time has relieved him from paying at all'.
In our view, this passage must he understood in the light of the facts of the case. In that case, it was agreed that a certain book-debt should be discharged by sale of certain property, the parties having agreed to certain other terms. But a suit by the intending vendor for specific performance having been dismissed on the ground that no effectual agreement has been made, it was held by their Lordships that the decree of dismissal of the suit for specific performance brought about a new state of things and imposed a new obligation on the debtor and that as such he could no longer allege that he was absolved by the creditors, being entitled to the land instead of money. It was held that
'he became tound to pay that which he had retained in payment of his land, the date of the decree giving the date of the failure of an existing consideration within the meaning of Article 97'.
If the observations quoted above are divorced from the facts of the case, they would no doubt lend some support to the appellant's contention. But on the facts noticed above, it is clear that they can have no bearing on a case like the present which depends upon the interpretation of the terms of Article 109 read in the light of the allegations in the plaint. The case in Suryaprakasa Rao v. Maharaja of Pithapuram, 1948-2 Mad LJ 52 : 62 Mad LW 879 : (AIR 1948 PC 175) relied upon by the learned counsel has equally no application.
That was a case where pending the ultimate decision by the civil courts of a litigation relating to an estate, one of the parties was recognised by the Collector as a 'Land-holder' under Section 3 (5) of the Madras Estates Land Act and as such became clothed with full statutory authority to collect the rents and profits during the whole period of his possession and as such his receipt of rents and profits was held not to be wrongful although his title to the estate was ultimately negatived. In that case, the right of the successful party to the litigation to profits did not accrue till the Collector passed another order under Section 3 (5) of the Act cancelling his earlier order as a result of the ultimate decision on the question of title.
The facts of that case were entirely different and could not attract the provisions of Article 109 of the Limitation Act and therefore it was that the residuary Article 120 came to be applied. The case in Dwijendranarain v. Jogeshchandra, AIR 1924 Cal 600 as also the case in Hadhakrishna Chettiar v. Ramaswami Ayyar 1954-2 Mad LJ 610 : 67 Mad LW 583 have no application. In both these cases, property was sold in court auction and was confirmed . on a much later date; the limitation for the recovery of profits accruing during this period was held to be governed by the period prescribed not by Article 109 but by the residuary Article 120.
The reason was that until the confirmation, the auction-purchaser had no title to the property and once the confirmation was made his title related back to the date of sale so that it could not be said that during the interregnum the judgment-debtor was in unlawful possession of the property. We accordingly hold that these-cases have no application to a simple suit for recovery of profits by a plaintiff who alleges that the defendants are in unlawful possession.
6. Learned Counsel for the appellant also-relied upon certain observations of the Madras High Court in Muthu Korakkai Chetty v. Mahomed Madar Ammal, ILR 43 Mad 185 at pp 208, 212 : (AIR 1920 Mad 1 at pp 11 and 13) (FB). The observations at page 208 (of ILR Mad) : (at p. 11 of AIR) of the said report are as follows:
'That a principle (as I understood it) is that whenever proceedings are being conducted between the parties bona fide in order to have their mutual lights and obligations in respect of a matter finally settled the cause of action for an application or for a suit the relief claimable wherein follows naturally on the result of such proceedings, should be held to arise only on the date when those proceedings finally settle such rights and liabilities'.
The other passage at page 212 (of ILR Mad) : (at page 13 of AIR) is as follows :
'In the view of the Judicial Committee, the cause of action should not be regarded as having arisen on a date when no step could be taken to obtain delivery, owing to the interference by the Board with the order of confirmation. That is to say, they held that we third column of the schedule should be construed as if it said that the cause of action arose only when a remedy based on it was available.'
These observations should not be divorced tram the particular context and the Article of limitation which they were construing. That was a case where after a court sale had been confirmed without opposition an application was made to set it aside on the ground of fraud and it was sea-aside as to part of the properties sold. The auction purchaser having applied for delivery of the remaining properties it was held by the Full Bench that the application for delivery was not barred under Article 180 of the Limitation Act as time should be computed from the date of theorder disallowing the petition to set aside the sale on the ground of fraud, and not from the date of the first confirmation.
The Article that fell to he decided in that case was Article 180 of the Limitation Act which deals with an application by a purchaser of immovable property at a sale in execution of a decree, for delivery of possession, which prescribes a period of limitation of three years from the date when the sale becomes absolute. Their Lordships held in the circumstances of the case that the sale became absolute from the date of the order disallowing the petition to set aside the sale and not from the date of the confirmation passed before the application to set aside the sale was made. This case has absolutely no bearing on the facts of the present case which raises a different set of circumstances.
7. As pointed out by the Privy Council in Nagendra Nath v. Suresh Chandra Dey, AIR 1932 PC 165 : ILR 60 Cal 1.
'The fixation of periods of limitation must always be to sonic extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is the only safe guide'. Bearing this test in mind, the only conclusion possible is that a plaintiff in order to successfully recover profits due to him from a person in unlawful possession, must institute his suit, for pro-fits in order to escape the bar of limitation and cannot wait till his title is declared or confirmed by the trial court or by the highest court of appeal. In Narayan Jivangouda v. Puttabai, 1944-2 Mad LJ 358 : (AIR 1945 PC 5) negativing a similar contention 'that since the title of the contending parties was involved in another suit, it would be quite futile to institute a suit for possession' till the successful termination of the earlier title suit, their Lordships observed . '..... the institution of a suit can neverbe said to be futile, if it would thereby prevent the running of limitation''.
8. The matter however seems to be covered by direct authority in favour of the respondents in cases analogous to the case on hand by decisions of the High Court of Allahabad and Lahore.
9. In Rain Charan Sahu v. Mata Prasad, AIR 1927 All 446 : ILR 49 All 565, it was ruled by the Allahabad High Court that the period of limitation once started cannot he suspended (Section g of the Limitation Act). It was held by their Lordships:
'Even where a claim to mesne profits is in dispute, the starting point for a suit for mesne profits would be the date when the profits are received. The limitation cannot start instead from the date of an adjudication of the rights between the parties. In such cases, the practice is for the plaintiff to institute a suit for mesne profits before time expires and let it be stayed pending the disposal of the former litigation'.
Some of the cases cited by the appellant's learned counsel have been noticed in the above judgment and were distinguished on the lines indicated herein. The principle laid down in this decision was reaffirmed in Ubaid-Ullah Khan v. Abdul Jalil Khan, AIR 1937 All 481 where their Lordships held that the limitation is not suspended as there is no provision in the Act suspending limitation in circumstances similar to those existing in the present case. The receipt of rents and profits by the defendants was wrongful from the outset notwithstanding the fact that a litigation was pending wherein the dispute to be decided was as to the title to the very property with respect to which the rents and profits were claimed.
To a similar effect is the decision of the Lahore High Court in Basheshar Das v. Diwanchand, AIR 1933 Lah 615 where, though the plaintiff had previously obtained a decree for possession, the delivery of possession was got stayed under an order obtained by the defendant. It was ruled by their Lordships that even the order for stay did not extend the period of limitation for recovery of mesne profits under Section 15 of the Limitation Act as there was nothing to prevent the plaintiff from filing a suit for mesne profits even though the question of title was not decided and that the stay related only to delivery of possession.
In that case, the Lahore High Court followed the two decisions of the Allahabad High Court referred to above. To the same effect is the decision of their Lordships of the Privy Council in Feroz Shah v. Mohammad Akbar Khan AIR 1939 PC 178 where their Lordships held that Article 109 is the Article applicable to a claim for recovery of profits and not Article 120.
10. As a result of the. foregoing discussion. It follows that the appeal has no merits and that the decision of the lower court is correct. The appeal is, therefore, dismissed but in the circumstances without costs.