1. The suit out of which this first appeal arises was filed by the respondent Shiv Shankar Dayal Choube against the appellants Ambika Prasad and Mst. Nanhibai, who were impleaded as defendants 5 and 4 respectively, and others. The suit was for recovery of mesne profits in respect of 81.23 acres of land in village Chikhalda, Tahsil Mungeli, District Bilaspur, for the years 1950-51 to 1953-54.
2. The first three defendants have not been impleaded in this appeal; but it is necessary to refer to them to understand the facts of the case. The lands in dispute along with several villages belonged to one Raghurai who died in 1888 and was succeeded by his widow Mst. Jotkuar who died on 22-1-1942. Mst. Jotkuar executed a registered deed of gift on 27-2-1906 in favour of her daughter Mst. Jirabai and her (Mst. Jirabai's) three sons. The properties passed to several persons after the death of one or other of the heirs; but we. are not concerned with the details. When Mst. Jotkuar died in 1942, the property was in possession of the first three defendants, namely, Mst. Kamalawati, Kedarnath and Mst. Ramdularibai, who are respectively daughter, daughter's husband and son's widow of Mst. Jotkuar. The respondent Shiv Shankar Dayal Choube is Raghurai's brother's son.
3. After the death of Mst. Jotkuar, Shiv Shankar Dayal Choube brought a suit for possession of the village shares and the lands as heir of Raghurai against the first three defendants. His case was that after the death of Mst. Jotkuar, he succeeded tothe property in preference to the daughters and the daughters' sons of Raghurai and the gift made by Mst. Jotkuar in their favour was an alienation not binding on him after the death of Mst Jotkuar. The claim was dismissed by the trial Court but was decreed in appeal by the High Court on 30-9-1949. While the case was pending in the High Court, some of the lands were purchased by Mst. Nanhibai (appellant No. 2) who was therefore impleaded as a respondent in the appeal before the High Court. Appellant No. 1 Ambika Prasad is the husband of Mst. Nanhibai and was in possession of the lands all along. After the decision by the High Court, the defendants filed an appeal before the Supreme Court, and prayed for stay of the execution of the decree obtained by the respondent. Accordingly, delivery of possession of the lands was stayed. The appeal was finally decided by the Supreme Court on 31-3-1958 in favour of the respondent.
4. The respondent then filed the suit which has led to this appeal for recovery of mesne profits of the lands which were in possession of the defendants. The trial Court has granted separate decrees against (i) defendants 1 and 2; (ii) defendant No. 3; and (iii) defendants 4 and 5. The first three defendants have not appealed against the decree passed against them. The judgment of the trial Court is therefore final so far as they are concerned. This appeal has been filed by defendants 4 and 5 and it is confined to the claim decreed against them.
5. The suit as framed by the plaintiff is for rendition of accounts of mesne profits and was valued at Rs. 6,000/- tentatively. He alleged that the lands in possession of the appellants could, with due diligence, produce a profit of Rs. 3,600/- per year.
6. Appellant No. 1 Ambika Prasad denied his liability for the claim on the ground that he was not a party in the earlier suit and further that he was not responsible for damages to the plaintiff, as he cultivated the lands on behalf of his wife Mst. Nanhibai. The defendants pleaded that the claim for the year 1950-51 was barred by time. They stated that they had been letting out the lands to tenants and filed their own accounts of the profits from the lands.
7. The trial Court held that defendant No. 5 Ambika Prasad was liable for profits to the plaintiff, as he was actually in possession of the lands. The claim for the year 1950-51 was held within time. The mesne profits were determined according to the schedule given by the plaintiff and the claim was decreed for Rs. 14,400/- as against defendants 4 and 5.
8. The first contention of Shri Y. S. Dharmadhikari for the appellants is that the lower Court had no jurisdiction to try the suit. He points out that the suit was instituted in the Court of Civil Judge, First Class, whose pecuniary jurisdiction extended upto Rs. 10,000/- only. Initially, the suit was valued at Rs. 6,000/- tentatively, as a suit for accounts. On 26-11-1955 the plaint was amended by introducing paragraph 15-B therein. In that paragraph the plaintiff stated that the cultivating profits which all the defendants could have obtained fromthe lands amounted to Rs. 7,200/- per year. This was explained in the schedule attached to the plaint which showed that the defendants 4 and 5 (present appellants) could have got Rs. 3,600/- per year from the lands. As the claim was for mesne profits for 4 years, the total amount would come to Rs. 14,400/- only. This was beyond the pecuniary jurisdiction of the trial Court. The reply of Shri A. P. Sen for the respondent is that the suit was within the jurisdiction of the trial Court, as it was filed as an accounts suit, which can be valued by the plaintiff at any amount. As he had valued the suit at Rs. 6,000/- only, the claim was not outside the jurisdiction of the trial Court.
9. To decide this question, it is necessary to find out first whether a suit for recovery of mesne profits can be filed as an accounts suit. As observed in Maroti v. Balaji, 8 Nag LR 36.
'The distinguishing feature of a suit for an account proper is the defendant's possession of or duty to furnish detailed accounts necessary for enabling the Court to ascertain the pecuniary outcome of the relations between him and the plaintiff.'
Thus, a suit does not become a suit for accounts merely because accounts have to be examined in order to ascertain the, amount due to the plaintiff.
9a. A similar view has been taken in Kanhayalal v. Hiralal, AIR 1947 Bom 255. We may refer to the following observations in paragraph 6:
'But as pointed out by Cornish J. in Suryanarayana v. Raja of Vizianagaram, AIR 1932 Mad 565 a suit does not necessarily become a suit for accounts because the plaint asks for an account. The plaint must show that the defendant is an accounting party and that the plaintiff claims on the footing that an account has to be taken to ascertain the sum due to him. A suit for an account is a special form of suit. It does not mean every case in which accounts have to be looked into in order to ascertain the correctness or otherwise of the amount claimed by the plaintiff. A suit for an account only lies where the defendant is under an obligation to render accounts to the plaintiff. There must be something more than a mere relationship of debtor and creditor. The defendant must stand in some other relation to the plaintiff, such as that of agent or bailee, or trustee, or partner or mortgagee.'
The question was also considered in Ashutosh Roy v. Arun Sankar Das, AIR 1950 Dacca 13 (2) where it was said:
'A suit for account will lie if the defendant is under an obligation to account and an obligation to account arises only (i) if the person upon whom the obligation is sought to be imposed must have received some kind of property not belonging to himself, (ii) that the person seeking to impose the liability must be the owner or must have some title to that property as would enable him to recover it, (iii) that the defendant must have received the property in his possession and control and (iv) there must be fiduciary relationship between the plaintiff and the defendant.'
Similar observations will be found in Panmal v. Omraomal, AIR 1953 Cal 244.
10. A distinction has to be drawn between a suit for recovery of past mesne profits and asuit for recovery of mesne profits pendente lite or future mesne profits. It is apparent from the definition of 'mesne profits' that the plaintiff must allege what the defendant could have got with due diligence from the land. He is always in a position to state this sum, and it is this sum which he must claim in the plaint. In this connection, the following passage from In re, K. B. Koil, AIR 1937 Mad 46 is helpful:
'Then turning to Order 7, Rule 2, Civil Procedure Code, there can be no question that in the very nature of things it applies to past mesne profits alone, for it enacts that the amount of the claim shall be stated approximately and it is obvious that future mesne profits are incapable of being estimated, depending, as they do, upon an uncertain element namely, the period of time which would intervene between the institution of the suit and the recovery of possession. In the Court-fees Act there are two sections which are relevant for the present purpose. Section 7(1) prescribes that in suits for money including suits for damages or compensation, this section applies to suits for mesne profits. Once agafn, this provision can have no reference to future mesne profits, which, as already stated, are incapable of being ascertained, the plaintiff not being bound under Order 7, Rule 2, Civil Procedure Code, to state approximately the amount of such profits.'
Under Order 7, Rule 2, Civil Procedure Code, the plaintiff has to state approximately the amount sued for. In the instant case, 'when the plaintiff amended the plaint indicating what the amount sued for was, the value of the suit became that amount. Court-fee in suits for recovery of mesne profits is payable under Section 7(1) of the Court-fees Act, as the claim is in essence a claim for damages or compensation. (See Nand Kumar v. Bilas Ram, 40 Ind Cas 579: (AIR 1917 Pat 79) and Bunwari Lal v. Daya Shanker 13 Cal WN 815). It is pertinent to observe that unlike account suit which is specifically provided for in Section 7(iv)(f) of the Court-fees Act, similar provision for a claim for mesne profits does not exist. Necessarily, therefore, such a claim falls under Clause (1) of Section 7. Under Section 8 of the Suits Valuation Act the value for purposes of jurisdiction is the same. No authority was shown to us according to which a suit for past mesne profits could be framed as a suit for accounts. We hold that a suit for recovery of such mesne profits must be for a fixed sum claimed as damages.
11. Faced with this difficulty, Shri A. P. Sen stated that his suit was not at all a suit for recovery of mesne profits but was a suit demanding from the defendants the account for profits received by them on the basis of- specific contract. His contention was that when the defendants asked for a stay order during the pendency of the appeal, it was granted on their undertaking to explain the account of profits. Had there been a specific agreement as alleged, the position might perhaps have been different. But we do not find that there was any such agreement. We have been referred to the application for stay, dated 17-12-1949, in Misc. Civil Case No. 203 of 1949. All that the defendants stated in that application was that 'the applicants will give adequate security for themesne profits and costs for which they may be found to be liable'. The Court ordered on 30-12-1949 issue of notice and 'stay meanwhile'. The stay was later continued. Neither the application filed by the appellants for stay nor the order of the Court indicate that the defendants had undertaken to explain accounts. What they had undertaken was the liability to pay 'mesne profits' alone.
12. Shri Sen also contended that the possession of the defendants in the order of the Court was not wrongful and they were trustees for the plaintiff all along liable to render accounts. He relied on Radhakrishna v. Ramaswami, ILR (1954) Mad 1213. In that case, an auction-purchaser had sued the judgment-debtor for recovery of profits pf the period during which the judgment-debtor was in possession between the date of auction sale and the confirmation of sale and the Court held that the judgment-debtor was not in wrongful possession. We may observe that the right of the auction-purchaser to take possession accrued only after the confirmation of sale, though by a fiction that sale related back to the date of auction. The possession of the judgment-debtor was, therefore, under a lawful title.
Reliance was also placed on the decision in Suryaprakasa Rao v. Maharaja of Pithapuram, AIR 1948 PC 175. In that case, the defendant was recognized by the Collector as a landholder under Section 3 (5) of the Madras Estates Land Act, but later the plaintiff was found entitled to the property. It was held that the recovery of rent by the defendant was not wrongful. That case was decided under the special provisions of the Madras Estates Land Act, the object of which was 'to provide machinery for the smooth management of an estate pending settlement of disputes relating thereto.' The possession of the defendant was not, therefore, wrongful, as it was under a statutory provision. The judgment of the Madras High Court from which that appeal arose is reported in Krishnayya Rao v. Maharajah of Pithapuram, AIR 1942 Mad 487. The following passage brings out the position under the special Act clearly:
'In other words, the person who is 'recognised' by the Collector as landholder for all or any of the purposes of the Act becomes thereby clothed with full authority to do all acts required to be done for such purpose or purposes, and such acts are made binding upon whichever party is ultimately held by a Civil Court to be entitled to the possession of the estate. And if it is found that the person so recognised is not entitled to possession, he will be liable to deliver possession of the estate and pay over the rents and other sums received by him, subject to all just allowances, to the person who is declared by the Civil Court to be so entitled. In other words, he will be liable to account for the rents and profits received as if he were a trustee (see Sections 94 and 95, Trust Act), although there can be no question of trust or strict fiduciary relationship between parties who claim the estate adversely one to the other. This, we conceive, is the position under an order made by the Collector recognising a person as landholder for the purposes of the Madras Estates Land Act, and it is essentially different from the case of aperson who takes possession under colour of a decree of Court which is afterwards reversed; for, the latter cannot be regarded as authorised to collect the rents on behalf of the rightful claimant as he cannot give a valid discharge, and the receipt of the profits by him, however bona fide and excusable, cannot be regarded as other than wrongful.'
This contention that the defendants were trustees for the plaintiff in the present case is incorrect. The position of a person who is not found to be the real owner after the decision of the case is that he has been in wrongful possession from the very start. The defendants were, therefore, liable for mesne profits.
13. As the suit could not be framed as a suit for accounts, the plaintiff could not put his own valuation on it. The amendment which was made in paragraph 15-B of the plaint carried the subject-matter beyond the pecuniary jurisdiction of the trial Court. In such cases, as observed in Lalji v. Narottam, ILR (1953) Nag 792: (AIR 1953 Nag 273), the proper course is to return the plaint and the application for amendment for presentation to proper Court. The trial Court thus had no jurisdiction to allow the amendment and as soon as the application for amendment was made, it should have been returned to the plaintiff for presentation to proper Court.
14. In this view, the trial of the suit by the lower Court was without jurisdiction. It is not open to us to examine the correctness of the other findings, as they will be decided in a retrial by the proper Court,
15. In the result, the appeal is allowed andthe decree of the trial Court is set aside. Thecase is sent back to the trial Court with a directionthat the plaint shall be returned to the plaintifffor presentation to proper Court. The Court-feespaid shall form the costs of suit and shall abidethe result. The rest of the costs incurred by theparties in this Court and the trial Court shall beborne as incurred.