1. In this case the defendant mortgaged certain property for Rs. 500 on 12th September 1898 to the plaintiff.
2. The property consisted of certain occupancy holdings.
3. The plaintiff lived some distance away and the rents were collected for him by an uncle, who died in the year 1906.
4. After that date the defendant collected the rents and thereby became possessed of the property.
5. That was an actionable wrong which took place seven years before the commencement of the suit.
6. The plaintiff in 1913 sued for and recovered possession, and that part of the judgment of the first Court is not contested.
7. The plaintiff also claimed the rents received by the defendant from the mortgaged property from time to time during the last three years immediately preceding the suit.
8. It cannot be denied that the defendant's possession has throughout been wrongful. He had no shadow of right to take the rents, and each time that he took them he was putting in his pocket money which under the contract belonged to the plaintiff. That, of course was a tort, but it was also a breach of contract.
9. It is said that this began seven years ago, that the limit for actions for damages for breach of contract is six years from the breach, and that, therefore, the action for rent wrongfully received by the defendant is barred because the rents have been received for more than six years.
10. So far as the act of dispossession is concerned this argument is perfectly sound. It is immaterial in this case because the period is 12 years, and the suit has been brought after the lapse of seven years.
11. But so far as the actual receipts of rent are concerned I am unable to follow the argument. Each time the defendant received rent he committed a breach of contract. It was nonetheless a breach of contract, because he had already committed several others and had been in wrongful possession for a long time. His possession was still wrongful, and he had acquired no title to the money. I hold that the Article of the Limitation Act which is applicable is Article 62.
12. The respondent's Counsel was forced to admit that he might have been sued for each given period in respect of which he had received rent. That seems to me to knock the bottom out of his case. Damages for a wrong can only be claimed once, and the cause of action accrues at the date of the wrong. But if another person receives money which rightly belongs to me I have a right to sue him each time it occurs. It is not damages at all, It is money had and received to my use which gives me the cause of action defined in Article 62 whenever the money is received.
13. In this case the plaintiff described his claim in his plaint as one for damages. This is an erroneous description, but the law looks at the substance and not at the form.
14. A number of authorities were cited which seemed at first sight to be inconsistent with this view. But on examination they turn out to be clearly distinguishable. The strongest perhaps is Balgobind Das v. Barhat Ali A.W.N. (1888) 15. That case has been followed in various others of a somewhat similar character. In none of them was Article 62 referred to.
15. They may all be justified on the ground that what was attempted there was to claim general damages in a round sum, based upon an estimate of the loss suffered by the person dispossessed of land, calculated upon the annual value, or rents likely to be received during the period which had elapsed since the dispossession. This is one way of claiming mesne profits no doubt. It is the only way when the wrongdoer has himself been in occupation, and after a lapse of six years it seems clear that such a claim is time-barred.
16. But Mr. Gulzari Lal, for the appellant, repudiated this form of claim. He put his case upon the ground that in addition to his remedy in specie for his dispossession, i.e., the decree for possession, he claimed the rents actually and wrongfully received from time to time by the defendant.
17. In none of the cases cited was this question raised or decided, and the decisions are, therefore, not binding upon me.
18. A practice seems to have grown up of framing claims of this nature as claims for general damages for the original breach of the contract by dispossession. It seems to me in the light of the authorities cited, that this form of claim is attended with serious risks to the litigant, and that in future Pleaders would be well advised to frame their claims for what they are in substance, namely, money wrongfully received from time to time as defined by Article 62 of the Limitation Act or as successive breaches of contract under Article 116.
19. I may add that whereas in this case the mortgagee was originally in possession and was dispossessed during the currency of the mortgage, in the case above referred to the mortgagee had been withheld from possession from the very beginning. This is another distinction, but it is not the ground upon which I decide this case.
20. The view I take was taken in Bombay in Govindrav v. Jiwahji 2 Bom. L.R. 201 by construing Article 109 as meaning 'profits belonging to instead of property belonging to'. I am not satisfied that this is not a strained interpretation of the Article but if it is sound it clearly justifies the claim made here.
21. But I think the plaintiff might have claimed in several distinct causes of action although combined in one suit, all the rents received within six years of the suit on the ground that each receipt was a separate breach of the mortgage contract or money received to his use.
22. The view taken by the District Judge was not persisted in this Court. Some people may think it desirable that persons who neglect to make claims promptly should be liable to be defeated altogether on the ground of negligence. It would revolutionize the prevailing system of credit. But at present such a view is inconsistent with the Statute of Limitation and has no foundation in law.
23. This appeal must be allowed. The decree in the lower Appellate Court must be reversed and the decree of the Munsif putting the plaintiff in possession must be restored, with the further modification] that the plaintiff recover from the defendant the sum of Rs. 300 with costs of the suit. The plaintiff must have his costs of the appeal to the lower Appellate Court and of this appeal on the higher scale.