John Edge, Kt., C.J. and Banerji, J.
1. In this suit the plaintiff claimed mesne profits. Part of the period for which the mesne profits were claimed was from the 31st of January 1889 to the 23rd of December 1889. The plaintiff got a decree and the decree gave him interest on the mesne profits at the rate of Rs. 12 per cent, per annum. The defendant has appealed from that decree.
2. The first point taken on behalf of the defendant was as to the plaintiff's title. That point is not open to the defendant. She is bound by the decree in the previous suit, which established against her the title of the plaintiff to the land in question from the 31st of January 1889.
3. The second point was as to the amount of interest allowed on the mesne profits. Twelve per cent, per annum is a little high, but not an unreasonable nor an unusual rate of interest in these provinces. On the question of interest we see no reason for interfering with the discretion of the Court below.
4. The next point raised for the appellant is as to the plaintiffs right to claim mesne profits for the period between the 31st of January 1889 and the 23rd of December 1889. In the previous suit, which was a suit for ejectment on a forfeiture, rent was claimed up to the 31st of January 1889. That was the date on which the forfeiture was alleged to have taken place, the date on which the plaintiff's right to possession was disputed, and from which he alleged that this defendant and the other defendant wrongfully held possession against him. It has been contended on behalf of the defendant that the plaintiff's claim for mesne profits between the 31st of January 1889 and the 23rd of December 1889 is barred by Section 43 of Act No. XIV of 1882. In support of that contention a Pull Bench ruling of this Court--Lalji Mal v. Hulasi I.L.R. 3 All. 660--has been cited. On the other hand, on behalf of the plaintiff-respondent it is contended that the effect of Clause (a) of Section 44 of Act No. XIV of 1882 is to differentiate the cause of action for the recovery of land from the cause of action for the recovery of mesne profits in respect of that land the decision of the Calcutta High Court in Lalessor Babui v. Janki Bibi I.L.R. 19 Cal. 615, following a Full Bench ruling of that Court was relied upon. The wording of Sections 43 and 44 of Act No. XIV of 1882 is not happy and suggests confusion. In Section 43 the word 'claim' is treated as something arising out of a 'cause of action' and as distinct from the term 'cause of action.' When we come to Section 44 we find that 'cause of action' and 'claim' are treated as synonymous. Whether it was intended by Section 44, which provides a rule of procedure, to enact that a claim for mesne profits and a claim to recover the land in respect of which the mesne profits are claimed, cannot arise out of the same cause of action, we do not know. It is possible that there may be a case in which a party would be entitled to claim recovery of immovable property and to claim mesne profits in respect of that property in which the cause of action might not be the same, and it may have been to provide for such a case as that that Clause (a) of Section 44 was inserted in that section. Such a case does not present itself to our minds. We cannot say that such a case has not arisen. What the first paragraph of Section 43 enacts, so far as it is necessary to refer to it, is that--'Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action,' In the former suit the cause of action in respect of which the claim for possession was made was, so far as the present defendant was concerned, the forfeiture entitling the plaintiff to possession and the wrongful keeping of the plaintiff out of the possession and enjoyment of the property. Now what was the cause of action for the mesne profits claimed from the defendant-appellant. It was stated briefly that, the plaintiff being entitled by reason of the forfeiture to possession, this defendant wrongfully withheld possession from the plaintiff and deprived him of the profits of the land. It appears to us that there were here not two causes of action, but one and the same cause of action, and that the same cause of action which supported the plaintiff's claim for possession in the previous suit supports his claim for mesne profits in the present suit, so far as the period between the 31st of January 1889 and the 23rd of December 1889 is concerned. The claim for possession and the claim for mesne profits in respect of the period between the 31st of January and the 23rd of December 1889 were claims which the plaintiff was in our opinion entitled to make in the former suit against the defendant in respect of the cause of action on which he sued in the former suit within the meaning of Section 43. The previous suit was instituted on the 23rd of December 1889. Consequently in respect of the cause of action upon which the present plaintiff succeeded in obtaining a decree for possession in that suit he was in that suit entitled, if he had made it, to support his claim for mesne profits between the date of the wrongful withholding of possession, namely, the 31st of January 1889, and the date when he brought that suit, namely, the 23rd of December 1889. This view is supported by the Full Bench decision of this Court referred to above, and by a decision of the Madras High Court in Venkoba v. Subbanna I.L.R. 11 Mad. 151.
5. We hold that the plaintiff is, by reason of Section 43 of Act No. XIV of 1882 and the previous suit, disentitled to claim mesne profits between the 31st of January 1889 and the 23rd of December 1889 in this suit. As the parties cannot agree as to the amount of mesne profits to be deducted from the decree of the Court below as the result of our judgment, we remand this case to the Court below under the provisions of Section 566 of the Code of Civil Procedure to find what are the mesne profits to which the plaintiff is entitled after excluding the mesne profits for the period between the 31st of January 1889 and the 23rd of December 1889. Ten days will be allowed for filing objections on the return to our order. The Court below may take such further evidence as may be necessary.