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Duni Chand and ors. Vs. Jagdev and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H243
AppellantDuni Chand and ors.
RespondentJagdev and ors.
Cases ReferredLahore v. Seth Pars Ram and Ors. A.I.R.
Excerpt:
.....possession of certain property was kept out of such possession by a person having no right to the possession of that property, and he, instead of suing for possession, first brought a suit for recovery of mesne profits and after his success in that suit brought another suit either for recovery of possession of the said property or for mesne profits for a subsequent period. 6. the learned counsel for the respondents laid great stress on the averments contained in the plaint filed in the previous suit as well as in the plaint filed in the present suit. 7. after reading the plaint in the previous suit with the utmost care i fail to discover any allegation or admission by the plaintiffs of their ouster by bodh raj defendant. 9. it is well settled that all barring statutes must be very..........and the present case in which the parties stand to each other in the relation of co-sharers in the suit property. the ordinary rule of law is that as amongst co-sharers each co-sharer is entitled to the possession of the whole and every part of the joint property and if one of such co-sharers is at any time found in exclusive possession of the whole of the property and in exclusive enjoyment of rents and profits of that property his possession cannot be regarded as wrongful. if he receives all the rents and profits of the joint property and withholds the share of the other co-sharers the latter can maintain a suit against him for their share of the rents and profits or for an account: vide punjab national bank ltd., lahore v. seth pars ram and ors. a.i.r. 1940 lah. 350. a claim for such.....
Judgment:

Achhru Ram, J.

1. This second appeal has arisen in the following circumstances. The plaintiffs, one Hari Kishan and some others jointly owned ten shops situate in the town of Amritsar including the shop in suit. By mutual arrangement inter se the co-sharers, the plaintiffs and Hari Kishan were to receive the rents and profits of the shop in dispute in equal half shares. In pursuance of this arrangement, the plaintiffs and Hari Kishan were letting out a half undivided share of the shop each and receiving the rent from the tenant or the tenants. In 1930 Hari Kishan mortgaged his share in the ten shops, including his right under the arrangement mentioned above in respect of the shop in dispute, to Bodh Raj. In 1934 Bodh Raj mortgagee and the plaintiffs leased out the shop in dispute by means of two separata rent deeds, each relating to one-half of the shop, to Kishan Chand Gogal Chand who sub-let the shop to Ram Saran Kundan Lal. In May 1938, Bodh Raj got a rent deed from Ram Saran Kundan Lal in respect of the whole of the shop. In January 1939, the aforesaid Bodh Raj let the whole of the shop to Bhagwan Das Sham Das. In June 1941 the plaintiffs brought a suit against Bodh Raj, Bhagwan Das and Sham Das, the relief being primarily claimed against Bodh Raj. The suit was for recovery of a sum of Rs. 713 with future interest. The sum of Rs. 713 was claimed on account of what was described as mesne profits of one-half of the shop for the period 16th January 1939 to 15th June 1941 with interest. It was alleged in the plaint that Bodh Raj had, without any lawful right, got a rent deed in respect of the whole of the shop executed in his favour and had realized the entire rent of the shop from the tenants. It was further alleged that the shop had been let out ostensibly on a monthly rent of Rs. 30 but in fact Bodh Raj defendant had been receiving rent at a much higher rate. The plaintiffs claimed their half share of the rent at the rate of Rs. 23 per mensem and also claimed interest on the various sums as they fell due to them for the period during which the same had been wrongfully withheld from them by Bodh Raj. The plaintiffs were granted a decree only for Rs. 435 which represented their one-half share of the rent for the period mentioned above at the rate of rent stipulated in the rent deed. On 4th August 1945 the plaintiffs brought the present suit against Bodh Raj for recovery of their share of the rent for the period 16th June 1941 to 4th August 1945, and also for issue of a perpetual injunction restraining him from realizing in future his share of the rent from the tenants and for mandatory injunction to the said tenants not to pay him in future his share of the rent. Bhagwan Das Sham Das and Hari Kishen were also impleaded as defendants. The suit was resisted by Bodh Raj on a number of pleas on which the learned trial Judge framed the following issues:

1. Is this suit barred under the provisions of Order 2, Rule 2 and Section 11, Civil P.C.?

2. Is Mt. Kahn Devi a necessary party? If so, what is the effect of not impleading her in this suit?

3. Is the suit in respect of the claim which is beyond three years previous to this suit, within limitation?

4. Is the claim about injunction time barred?

2. The learned trial Judge held on issue 1, that the suit was barred by Order 2, Rule 2, Civil P.C. Issue 2 was decided in the plaintiffs' favour. Issue 3 wag also decided in the plaintiffs' favour. Issue 4 was decided against the plaintiffs and their claim for injunction was held to be barred by time. In the result, the plaintiffs' suit was dismissed. The plaintiffs went up in appeal to the learned Additional District Judge who affirmed the decision of the learned trial Judge on the question of the applicability of Order 2, Rule 2, and, without going into any of the other issues, upheld the decree dismissing the suit. Feeling aggrieved from this decree the plaintiffs have come up in second appeal to this Court. After hearing the learned Counsel for the respondents, I am clearly of the opinion that the judgment of the learned District Judge cannot be sustained and that this appeal must succeed.

3. The learned trial Judge while dealing with issue 3, i.e., the issue relating to limitation for the suit in respect of claim for the period beyond three years prior to the suit, correctly appreciated the oral relationship existing between the plaintiffs and defendant 1, Bodh Raj. He declined to apply Article 109, Limitation Act, which gives a period of three years for a suit for recovery of the profits of immovable property belonging to the plaintiffs which had been wrongfully received by the defendants, and, relying on a judgment of the High Court of Lahore in Kidar Nath v. Shiv Dayal and Ors. A.I.R. 1933 Lah. 951, held the suit to be governed by Article 120, Limitation Act. While dealing with issue 1 he seems to have overlooked the principle on which the judgment of the Bench in Kidar Nath v. Shiv Daijal and Ors. A.I.R. 1933 Lah. 951, proceeded. It was pointed out in the said judgment that receipt of the entire rent by the defendant who was in exclusive possession of property jointly owned by himself and the plaintiff could not be regarded as profits wrongfully received by him.

4. Both the Courts below have followed decisions in cases in which the plaintiff having an immediate right to the possession of certain property was kept out of such possession by a person having no right to the possession of that property, and he, instead of suing for possession, first brought a suit for recovery of mesne profits and after his success in that suit brought another suit either for recovery of possession of the said property or for mesne profits for a subsequent period. There is no analogy at all between those cases and the present case in which the parties stand to each other in the relation of co-sharers in the suit property. The ordinary rule of law is that as amongst co-sharers each co-sharer is entitled to the possession of the whole and every part of the joint property and if one of such co-sharers is at any time found in exclusive possession of the whole of the property and in exclusive enjoyment of rents and profits of that property his possession cannot be regarded as wrongful. If he receives all the rents and profits of the joint property and withholds the share of the other co-sharers the latter can maintain a suit against him for their share of the rents and profits or for an account: vide Punjab National Bank Ltd., Lahore v. Seth Pars Ram and Ors. A.I.R. 1940 Lah. 350. A claim for such share of rents and profits is sometimes, in common parlance, described as mesne profits but in fact it is not a claim for mesne profits as defined in Section 2(12), I Civil P.C. In a case of this kind it is not necessary for the co-sharers who are out of possession to sue the co-sharer in exclusive possession for possession of their share. The reason is obvious. The possession of the defendant not being wrongful and the property being still undivided such co-sharers, unless they decide to sue for partition of the joint property, can maintain an action only for joint possession and a decree for such possession is more or less only of a declaratory nature, the co-sharer in possession not being liable to be ejected or dispossessed from any portion of the joint property in execution of such a decree. Accordingly, if the co-sharers bring only a suit for their share of the rents and profits of the joint property any subsequent action brought by them either for partition of the joint property or for joint possession or for their share of the profits for a subsequent period cannot attract the application of Order 2, Rule 2.

5. In order to attract the application of Order 2, Rule 2, identity of causes of action for the two suits is essential. If the causes of action on which the two suits are based are distinct and separate, the bar created, by Order 2, Rule 2 cannot be said to apply. A cause of action for the purposes of Order 2, Rule 2 has been defined as a bundle of essential facts which it is necessary for the plaintiff to allege and prove in order to get the relief claimed by him. In ease of co-sharers suing for their share of the rents and profits of the joint property realized by the co-sharer in exclusive possession of such property the cause of action consists of their title as co sharers and the receipt by the co-sharer in possession of rents and profits in excess of his share. In a suit for joint possession the cause of action will consist of the title of the plaintiff and the repudiation of such title by the co-sharer in exclusive possession. In a suit for partition the cause of action will consist of the title of the plaintiff and the refusal by the defendant to divide the property out of Court and give the plaintiff separate possession of a parcel of the joint property proportionate to his share. In a suit for recovery of the plaintiff's share of the rents and profits for the period subsequent to the one for which the previous suit was brought the cause of action will consist of the plaintiff's title and the realization by the defendant of his share of the rents and profits for the said period. Obviously the causes of action in the four cases are distinct and separate.

6. The learned Counsel for the respondents laid great stress on the averments contained in the plaint filed in the previous suit as well as in the plaint filed in the present suit. He urged that in both the plaints the defendant Bodh Raj had been alleged to have wrongfully let out the plaintiffs' share of the shop and to have wrongfully realised the rents and profits of that share. Capital was made of the fact that in both the plaints the amount claimed was described as representing the mesne profits of one-half of the shop. In order to decide whether the bar created by Order 2, Rule 2 applies to a certain suit or not, and whether the causes of action for the two suits can be said to be identical, the parties' description of the nature of the claim and their description of their legal position cannot be regarded as conclusive. It is the effect and the substance of the claim and the true juridical nature of the relationship existing between the parties that has to be taken into consideration. It was urged by the learned Counsel for the respondents that the previous suit of the plaintiffs was based on an allegation of their ouster by Bodh Raj, that the possession of Bodh Raj in consequence of such ouster must be deemed to be wrongful and hostile to the plaintiffs, and that time having begun to run against the plaintiffs on such ouster they had become entitled to sue for possession at the time of the institution of the said suit.

7. After reading the plaint in the previous suit with the utmost care I fail to discover any allegation or admission by the plaintiffs of their ouster by Bodh Raj defendant. The mere circumstance that the plaintiffs regarded the realization by Bodh Raj of rent in excess of his share as wrongful, and also looked upon his conduct in getting a rent deed in respect of the whole of the shop executed in his favour as without title and unlawful, cannot possibly be taken to show that they either alleged or admitted an ouster of themselves by the said Bodh Raj. It was nowhere said that the said Bodh Raj had to their knowledge repudiated their title.

8. I am further of the opinion that even if Bodh Raj had been admitted in the plaint in this previous suit to have repudiated the plaintiffs' title, and to have received their share of the rents and profits in repudiation of their title, the bar of Order 2, Rule 2 would not still have been attracted. The causes of action for a suit for recovery of the plaintiffs' share of the rents and profits and for joint possession of their undivided half share in the property would still be distinct and separate. The cause of action for the suit for the recovery of the plaintiffs' share of the rents and profits would consist only of their rights to such rents and profits and receipt of those rents and profits by the defendant. In such a suit it would not be necessary for the plaintiffs to allege and prove repudiation of their title by the defendant because the relief claimed by them could be granted to them without their alleging and proving such repudiation. The cause of action in a suit for joint possession would consist of their title and the repudiation of that title by the defendant. In this suit it would not be necessary for them to allege and prove the receipt by the defendant of their share of the rents and profits. The mere circumstance that the occurrences giving rise to the causes of action in the two suits took place simultaneously or synchronised with each other would not have the effect of making the causes of action identical. In order, to find out whether the causes of action are identical or distinct and separate the only test that has to be applied is whether in order to get relief in the two suits the same bundle of essential facta had to be alleged and proved by the plaintiff. If the answer to this question is in the affirmative the causes of action must be held to be identical. If the answer to this question is in the negative the causes of action cannot be said to be identical.

9. It is well settled that all barring statutes must be very strictly construed and unless the provisions of any such statute can be shown to be applicable very clearly and precisely to a particular case the presumption must always be in favour of the right to proceed. After giving the case my very careful thought I am of the opinion that Order 2, Rule 2 has been wrongly applied by the learned District Judge to the facts of the present case. For the reasons given above, I accept this appeal and setting aside the judgment and the decree of the learned District Judge remit the case to him for a decision of the appeal according to law in the light of the observations made above. Costs of this appeal shall be costs in the cause. Parties have been directed to appear in the Court of the learned District Judge, Amritsar, on 20th October 1918.


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