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Miyan Khan Vs. Sarfaraz Khan and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1920All302; 60Ind.Cas.65
AppellantMiyan Khan
RespondentSarfaraz Khan and ors.
Cases ReferredNandan Singh v. Ganga Parshad
Excerpt:
civil procedure code (act v of 1908), order ii, rule 2 - suit to recover immoveable property--subsequent suit for mesne profits, whether barred. - - it is now admitted that on the death of mohan kuer, piarey lal, her daughter's son, succeeded to the full proprietary interest in the property, the mortgage being good only for her lifetime......the appeal with costs here and hitherto.sulaiman, j.2. this is an appeal arising oat of a suit for mesne profits. it appears that on the 17th of august 1878 one musammat mohan kuer who was only a limited owner, made a mortgage of toe, property for which mesne profits are now claimed in favour of the defendants. it is now admitted that on the death of mohan kuer, piarey lal, her daughter's son, succeeded to the full proprietary interest in the property, the mortgage being good only for her lifetime. on the 30th of september 1915, piarey lal sold his rights and interest to the plaintiff. after this the plaintiff brought a suit for recovery of possession of the property covered by the sale deed without claiming any mesne profits. the exact date on which the suit was brought is not apparent.....
Judgment:

Walsh, J.

1. ON the authority of the case of Nandan Singh v. Ganga Parshad 20 Ind. Cas. 892 : 35 A. 512 : 11 A.L.J. 786 and the case of ponnammal v. Rumamirda Aiyar 27 Ind. Cas. 679 : 38 M. 829 : 7 M.L.T. 125 : 28 M.L.J. 127 : (1915) M.W.N. 130 I think that we have no alternative but to restore the decree of the first Court, allowing the appeal with costs here and hitherto.

Sulaiman, J.

2. This is an appeal arising oat of a suit for mesne profits. It appears that on the 17th of August 1878 one Musammat Mohan Kuer who was only a limited owner, made a mortgage of toe, property for which mesne profits are now claimed in favour of the defendants. It is now admitted that on the death of Mohan Kuer, Piarey Lal, her daughter's son, succeeded to the full proprietary interest in the property, the mortgage being good only for her lifetime. On the 30th of September 1915, Piarey Lal sold his rights and interest to the plaintiff. After this the plaintiff brought a suit for recovery of possession of the property covered by the sale deed without claiming any mesne profits. The exact date on which the suit was brought is not apparent from the record. On the 16th of August 1916 a decree for recovery of possession was passed in favour of the plaintiff. After this decree, the plaintiff brought a suit for recovery of mesnd profits for the year 1323 Fadi, on the 16th of September 1916. I may note that the year 1323 Fadi begins from u. period previous to the execution of the sale-deed and extends right up to the 11th of September 1916, that is to lay, sometime after the passing of she decree for possession. The Court of first instance decreed the suit. The learned District Judge dismissed the suit, holding that the present claim was barred by Order II, Rule 2 of the Code of Civil Procedure. The plaintiff comes up in second appeal to this Court, and the case has been leered by a Single Judge of this Court to a Bench of two Judges. On behalf of the plaintiff it is contended that a claim for mesne profits arises out of quite an independent and distant Cause of action from that on the basis of which a suit for recovery of possession is brought, and that, therefore, the present claim was in no way barred by the provisions of Order II, Rule 2 of the Code of Civil Procedure. In the old Act, VIII of 1859, in Section 10 there was au express provision under which a claim for mesne profits was deemed to be based on a distinct and separate cause of action from a claim for recovery of possession. Act XIV of 1882 apparently introduced an alteration. The words of the present Act, V of 1852, Order II, Rule 4, are similar to Section 44 of Act XIV of 1882, and are as follows:' No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immoveable property, except claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof. 'On behalf of the appellant it is contended that as Order II, Rule 4 is worded it is quite dear that the Code contemplates that the claim for mesne profits is based on quite a distinct cause of action from the claim for the recovery of immoveable property. If the question had been as Integra, 1 might have had some difficulty in accepting this interpretation of the rule, but the Full Benahase of tonnammcl v. Rarnarnirda Aiyar 27 Ind. Cas. 679 : 38 M.L.T. 125 : 28 M.L.J. 127 : (1915) M.W.N. 130 has interpreted this rule in the way contended for by the learned Vakil for the appellant; and in the Full Bench case of Nandan Singh v. Ganga Parshad 20 Ind. Cas. 892 : 35 A. 512 : 11 A.L.J. 786 an opinion has been expressed which to some extent supports his contention. In this latter case it was district help that a claim for arrears of rent is not on the same Muse of notion as a claim for possession of the property. Now, a claim for mesne profits and a claim for arrears of rent stand on the same footing so far as Order II, Rule 4, is conferred. I, therefore, think that the view expressed by the Full Bench is binding on this Court. The claim is not barred by Order II, Rule 2 of the Code of Civil Procedure; but the plaintiff is entitled to imperia profits only from the date of his sale-deed, dated the 30th of September 1915, up to the end of the Fatly year. This amount had been granted to him by high court of first instance. I would, therefore, restore the decree of the first' Court.

3. The order of the Court is that the decree of the lower Appellate Court is get aside and the decree of the Court of first instance is restored with costs in all Courts.


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