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Brijlal and ors. Vs. Nandkishore and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 567 of 1956
Judge
Reported inAIR1960MP40
ActsLimitation Act, 1908 - Schedule - Articles 109 and 120
AppellantBrijlal and ors.
RespondentNandkishore and ors.
Appellant AdvocateA.L. Halve, Adv.
Respondent AdvocateT.L. Khandelwal, Adv.
DispositionAppeal dismissed
Cases ReferredGanpatrao v. Jangia
Excerpt:
- - naresh narayan roy, 29' cal wn 270: (air 1925 pc 93(1)) lends strong support to the view taken by the lower appellate court......been in wrongful possession of the property. if his possession is rightful but he withholds the profits wrongfully, then article 109 has no application. in the case of co-sharers and joint owners, the possession of one of the co-sharers is always on behalf of the others and he acts on behalf of all in receiving profits. the profits are not thus wrongfully received by him at any time.shri halve agrees that this proposition as a general rule is correct; butt he contends that as chhotelal had alienated the whole share in defiance of the rights of the other co-sharers, this act amounted to an ouster of all of them and after that date the receipt of profits by him was wrongful. the limited point which thus arises for determination in this case is whether in the case of an assertion of.....
Judgment:

T.C. Shrivastava, J.

1. This second appeal has been filed by the defendants against whom the respondents' claim for mesne profits has been decreed.

2. The lands in dispute are malik makbuzafields Khasra Nos. 187 and 188 in village MadiaAgrasen, Tehsil Rehli. These fields originally belonged to one Kanhaiyalal, who left behind threesons: Manoharlal, Bhagwandas and Chhotelal. Bya registered deed, dated 11-5-1945, Chhotelal transferred the whole fields to the defendants in defiance of the rights of his co-sharers. The defendants continued in possession of the fields from thatdate. The plaintiffs purchased the two-third shareheld by the other two co-sharers in the fields andthen filed Civil Suit No. 62-A of 1951 and succeeded in obtaining joint possession in the land to theextent of two-third share finally by a decree passed by the appellate Court on 24-8-1954. Theythen brought the present suit claiming mesne profits for the years 1949-50 to 1953-54. :

3. The defendants disputed the amount claimed as also the claim for the first two years which they said was barred by limitation,

4. The trial Court decreed the claim for profits for three years only, but the lower appellate Court has decreed the claim for all the five years.

5. In this appeal, the quantum of the mesne profits as awarded for each year is not disputed The only contention, which is pressed, is that the claim for the first two years should have been held barred by time.

6. Shri A. L. Halve for the appellants contends that the view of the lower appellate' Court that the case is governed by Article 120 of the First Schedule to the Limitation Act is wrong. According to him, the article applicable is article 109 and the suit should, therefore, have been confined to profits for the three years before suit. The decisions, which were cited before the lower appellate Court and which have been mentioned in its judgment, were again relied upon by the respective parties in their arguments.

7. Now, it is essential for the application of Article. 109 that the defendant should have been in wrongful possession of the property. If his possession is rightful but he withholds the profits wrongfully, then Article 109 has no application. In the case of co-sharers and joint owners, the possession of one of the co-sharers is always on behalf of the others and he acts on behalf of all in receiving profits. The profits are not thus wrongfully received by him at any time.

Shri Halve agrees that this proposition as a general rule is correct; butt he contends that as Chhotelal had alienated the whole share in defiance of the rights of the other co-sharers, this act amounted to an ouster of all of them and after that date the receipt of profits by him was wrongful. The limited point which thus arises for determination in this case is whether in the case of an assertion of hostile title by one of the co-sharers, he should be considered to be in wrongful possession and should Article 109 apply on this view.

8. The first important case which needs mention is Yerukola v. Yerukola, AIR 1922 Mad 150 (FB) in which the co-sharers of a joint Hindu family had divided in status, but the family properties continued in possession of some of them. A suit for partition and accounts was filed. It was held that the prayer for accounts was governed by Article 120, and not by Article 109, as the possession of jhe co-sharers-defendants was not wrongful and held the land as tenants-in-common. The same view has been taken in U Aung Myint v. Daw Mya AIR 1938 Rang. 416; Abu Shabid v. Abdul Haque Do-bhash, ILR (1940) 1 Cal 110: (AIR 1940 Cal 363) and Sitaram v. Narayan, AIR 1943 Bom 216.

9. In Budhilal v. Mokhachand, 105 Ind Cas 777: (AIR 1928 Nag 65 (1)), the Court of the Judicial Commissioner, Nagpur, followed the view taken in Yerukola's case, AIR 1922 Mad 150 (supra). It was held in that case that if a person prevents another from obtaining from a field such profits as it is capable of yielding and takes possession of the whole field as his own, he is liable to account for mesne profits and the article applicable to such a suit would be Article 120 and not Article 109. That was thus a case in which a hostile title was asserted by the co-sharer and yet Article 109 was not applied.

10. The decision of their Lordships of the Privy Council in Midnapur Zamindary'Co., Ltd. v. Naresh Narayan Roy, 29' Cal WN 270: (AIR 1925 PC 93(1)) lends strong support to the view taken by the lower appellate Court. The facts in that case were very much similar to the present case. .There, a hostile title was asserted by one of the co-sharers and the other co-sharer had to file a suit for joint possession. After he had obtained a decree for joint possession, he sued for mesne profits. It was held that the claim was governed by Article 120 and not by Article 109, and profits for a period of six years before suit were within time.

11. Reliance was placed on behalf of the appellants on Dullabhbhai Hansji v. Gulabbhai Morarji, AIR 1938 Bom 158 but in that case the suit) was for mesne profits against a purchaser who had purchased the lands from the insolvent and sale was set aside at the instance of the Receiver. The possession of the purchaser was thus wrongful from the very inception. Another case relied upon is Saraj Ranjan v. Premchand, Am 1918 Cal 360 but in that case again the sale was set aside and the possession of the purchaser was held to be wrongful. The third case referred to by the appellants is Ganpatrao v. Jangia, 10 Nag LR 76: (AIR 1914 Nag 65) but in that case also the possession of the defendant was wholly wrongful.

12. Shri Halve did not cite any case relating to a suit for profits against a co-sharer in which Article 109 was held applicable. On the other hand, the two cases referred to in paras 9 and 30 above are direct on the point that assertion of hostile title by a co-sharer makes no difference and Article 120 still applies to a suit for recovery of mesne profits.

13. The view taken by the lower appellate Court that Article 120 applied to the case and the claim for all the five years before suit was, in time is correct. Other points raised in the memorandum of appeal were not pressed.

14. Accordingly, the appeal is dismissed with'costs.


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