V.S. Deshpande, J.
(1) A large plot of land measuring 1304 square yards was leased out by the Delhi Improvement Trust at the rate of Rs. 5 per 100 square yards per month to Messrs. Shanti Parkash Bishan Singh in 1944. The lessees between themselves seem to have divided the plot and occupied separate halves of it. The lease was cancelled in 1944. A suit for ejectment and recovery of arerars of rent was filed by the Improvement Trust against Shanti Parkash and Bishan Singh and was decreed on 29-5-1946. The decree for ejectment was not, however, actually executed and the judgment debtors continued in actual possession. Shanti Parkash died on 12-5-1950. Jia Rani. his daughter was his legal representative. Out of the land in the possession of Shanti Parkash some area was in the possession of one Ladha Ram. After the death of Shanti Parkash, Jia Rani brought Suit No. 162 of 1951 for ejectment and recovery of arrears of rent against Ladha Ram on the basis of tenancy. That suit was, however, dismissed on 2-6-1953 on the ground that the tenancy had not been proved. An application for permission to sue in forma pauperis against Ladha Ram. Phiraya Lal and Jagan Nath was thereafter made by Jia Rani on 1-2-1954 under Order Xxxiii rules 1 and 2 Civil Procedure Code for the possession of an area of about 110 square yards in the occupation of the defendants out of the half of the bigger plot which was in possession of Shanti Parkash as a lessee of the Improvement Trust. Jia Rani claimed the right to sue for possession as the legal representative of Shanti Parkash. She claimed damages for use and occupation at. the rate of Rs. 100.00 per month for three years, namely, from 1-2-1951 to 1-2-1954. She was eventually allowed to sue in forma pauperis and the suit was registered as Suit No. 338 of 1961.
(2) The suit was defended mainly on the ground that the site in dispute was a part of the land belonging to the Delhi Improvement Trust who alone could demand possession thereof from the defendants. The grant of lease of this land by the Improvement Trust to Shanti Parkash was denied. Alternatively, the said lease had come to an end and neither Shanti Parkash nor his daughter Jia Rani had, thereforee. any locus standi to sue the defendants for possession and damages for use and occupation. The suit was also said to have been barred by rest judicata by the decision inter partes in Suit No. 162 of 1951 referred to above.
(3) The trial Court found that the suit was not barred by rest judicata inasmuch as in the previous suit Jia Rani had based her claim on tenancy while in the present suit she based her claim on possessory title independent of any tenancy. The trial Court further held that Jia Rani was the legal heir of Shanti Parkash and had possessory title to the site in dispute. The defendants were sheer trespassers. They could not resist the suit even though the ownership of the site had vested in the Delhi Improvement Trust. The trial Court also decreed damages for use and occupation at the rate of Rs. 5.00 per 100 square yards per month. The defendants have appealed against the above decision and the plaintiff has filed cross-objections claiming enhancement of damages for use and occupation. The only questions for decision arising out of the arguments in this appeal and the cross-objections are, however, as follows:-
(1)Is Jia Rani respondent entitled to possession and damages for use and occupation against the appellants and (2) If so, at what rate ?
(4) The lease granted by the Delhi Improvement Trust to Shanti Parkash and Bishan Singh came to an end when a decree for ejectment in favor of the Improvement Trust was passed against Shanti Parkash and Bishan Singh. Their possession over the whole of the plot which had been formerly leased to them was in the capacity of tenants holding over within the principle underlying section 116 of the Transfer of Property Act. As the ex-landlord did not assent to their continuing in possession, the tenancy was not renewed in favor of the ex-tenants. As against the ex-landlord, thereforee, the possession of the ex-tenants was unauthorised. (Hinduslan Housing Factory v. Rajinder Singh, Civil Revision 188-D of 1964 decided by a Division Bench of this Court on 17-11-1971 reported in 1972 R.C.R. 64 Nevertheless even the ex-landlord could obtain possession of this land from the ex-lessees only by executing the decree for ejectment against them according to law. As this was never done, the ex-lessees continued to be in possession of the land.
(5) What was the nature of their possession They clearly had no legal title such as of ownership or of lessees to the land. But in the English common law, possession has always been regarded as a good title of right against any one who cannot show a better. As observed by Salmond in his 'Jurisprudence', Ninth Edition, page 408, 'a wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself'. This theory was adopted in Indian law and embodied in section 8 of the Specific Relief Act, 1877 now succeeded by section 5 of the Specific Relief Act, 1963. As distinguished from section 9 of the old Specific Relief Act and section 6 of the new one, suits under section 8 of the old Act and section 5 of the new Act could be filed on the basis of title by owners as well as non-owners. In respect of owners, this remedy could be said to be proprietary while in respect of non-owners the remedy could be viewed as possessory. In the European civil law following the Roman law this distinction is well known and is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit). This duplication of remedies was, however, avoided in the English and the Indian law by the operation of the following three rules:-
(1)Prior possession is prima fade proof of title. In a suit for possession based on title, the plaintiff need do nothing more than prove that he had an older possession than that of the defendant. The law will then presume from this prior possession a better title in the plaintiff according to the maxim Old prior est tempore potior est jure, (compare section 110 of the Evidence Act.) (2) A defendant is always at liberty to rebut this presumption by proving that the better title is in himself. (3) A defendant is not allowed to set up the defense of jus tertii, as it is called; that is to say, he will not be heard to allege, as against the plaintiff's claim, that neither the plaintiff nor the defendant, but some third person, is the true owner. The principle is 'Let every man come and defend his own title. As between A and B the right of C is irrelevant'.
(6) In this analysis of the legal position, we are supported by the decision of the Supreme Court in Nair Service Society Ltd. v. K. C. Alexander Air 1968 Sc M65
(7) As distinguished from the title of an owner, the title of a person which is based purely on prior possession may be called a possessory title. But possession itself is a fluid concept. Its nature varies with the nature of the remedies with which it is associated and the manner in which they are developed. Originally possession was regarded as a relation of fact between a person and the thing possessed by him. When, however, a person who had prior possession was able to sue another person who was in present possession but whose possession was subsequent to that of the plaintiff, the purely physical element of possession became less important and the right of possession was recognised to exist even apart from ownership. The concept of possession thus became more a question of right and less a matter of infra-juridical fact. (The Commissioner of Wealth Tax v. Mrs. Aviar Mohan Singh, W. T. Ref. 4 of 1968 decided by a Division Bench of this Court on 19-4-1971). (3)
(8) Once the nature of possession as a right in itself apart from ownership is recognised, it follows that such a right is capable of being inherited and transferred. This is the law according to the consensus of judicial decisions. We may refer only to one of them, namely, Govind Dutta v. Jagnarain Dutta, per Ramaswami and Sarjoo Prosad. JJ. : AIR1952Pat314 . According to section 306 of the Indian Succession Act, 1935 also the right to sue of a person survives to and against the executor or the administrator of such a person except certain personal causes of action such as those based on defamation, assault, etc.
(9) In the present case, it is admitted by the contesting defendant DW. 6 Phiraya Lal that he occupied the site in dispute towards the end of the year 1950. He does not deny that he was a rank trespasser. His possession of the site in suit was thus later while the possession of Shanti Parkash and Jia Rani was a prior one. It was not necessary that Jia Rani should have succeeded to the physical possession of the site in suit on the death of Shanti Parkash. As Shanti Parkash was in physical possession of the site in suit at some lime. his right to possession devolved on Jia. Rani as a juristic right even though the physical possession of the site in suit may not have immediately come to Jia Rani from Shanti Parkash. Jia Rani had. thereforee, the locus standi to sue the defendants for possession on the basis of possessory title.
(10) Shri Bhagwat Dayal. learned counsel for the appellants contended that the Delhi Improvement Trust and thereafter the Delhi Development Authority being the true owner of the land. .!ia Rani had no right to sue. This contention is untenable inasmuch as a possessory title is good against everyone who docs not have a better one as shown above on the basis of the juristic nature of possession and the Supreme Court decision in Nair Service Society's case.
(11) In practice, the working out of the rights of possession of the true owner and of the prior possessor as against the subsequent. possessor may, however, lead to some difficulty. For instance, a subsequent possessor may be faced simultaneously with separate claims not only for possession but also for damages for use and occupation by the true owner as well as the prior possessor. Two alternative solutions of this difficulty may be envisaged. The possession from the subsequent possessor may be recovered either by the prior possessor or by the true owner whoever manages to get it first by the legal process. The liability of the trespasser to hand over possession or to pay mesne profits to the holder of the possessory title or to the true owner is only one and indivisible. Once either of them recovers possession, the other will not be able to get it from the subsequent possessor (that is the trespasser). Alternatively, the subsequent possessor (that is the trespasser) may persuade the Court for the consolidation of the separate claims of possession by the prior possessor and the true owner or he may persuade the Court to join the prior possessor as well as the true owner as parties in one suit so that the Court may decide both the claims against the trespasser in the same suit. The same will be true of separate claims by the prior possessor and the true owner against the trespasser for damages for use and occupation. The trespasser will not have to pay damages for use and occupation to both the prior possessor and the true owner. Payment to either of them will be a sufficient defense to such a claim against him by the other. For, as against him both of them were entitled to make a claim. He cannot choose between them but is answerable to satisfy either of them who manages to make good his claim against the trespasser before the rival claimant does so.
(12) The claim in the suit by Jia Rani against the appellants was firstly for possession and secondly for damage's for use and occupation of the site in suit wrongfully by the defendants appellants. When damages are claimed in respect of wrongful occupation of immovable property on the basis of the loss caused by the wrongful possession of the trespasser to the person entitled to the possession of the immovable property, these damages are called 'mesne profits'. The measure of mesne profits according to the definition in section 2(12) of the Code of Civil Procedure is 'those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received there from, together with interest on such profits'. It is to be noted that though mesne profits are awarded because the rightful claimant is excluded from possession of immovable property by a trespasser, it is not what the original claimant loses by such exclusion but what the person in wrongful possession gets or ought to have got out of the property which is the measure of calculation of the mesne profits. (Rattan Lal v. Girdhari Lal, Air 1972 Delhi ll). This basis of damages for use and occupation of immovable property which are equivalent to mesne profits is different from that of damages for tort or breach of contract unconnected with possession of immovable property. Section 2(12) and order Xx rule 12 of the Code of Civil Procedure apply only to the claims in respect of mesne profits but not to claims for damages not connected with wrongful occupation of immovable property. The measure for the determination of the damages for use and occupation payable by the appellants to the respondent Jia Rani is, thereforee, the profits which the appellants actually received or might with ordinary diligence have received from the property together with interest on such profits.
(13) Jia Rani claimed mesne profits at the rate of Rs. 100.00 per 100 square yards per month. She has examined Public Witness 6 Tirath Ram to show that the rent of 60 square yards of land was Rs. 55.00 (per month ?) and that the said land was about 100 yards from the land in dispute. The learned trial Judge, however, was not impressed with the reliability of the evidence of Tirath Ram and we are not inclined to attach much importance to his evidence. On the other hand, the Chairman of the Delhi Improvement Trust gave a notice to the defendants on 18-6-1954 claiming damages for use and occupation for the period from 1-1-1952 to 31-5-1954 at the rate of Rs. 1,312.00 per 100 square yards per month. The Improvement Trust was established expressly for the purpose of owning land in Delhi and for controlling use of land in Delhi. The Improvement Trust was the original Lesser. The right to claim damages for use and occupation ultimately vestes in the Trust. The notice given by the Chairman of the Improvement Trust to the appellants is, thereforee, in the nature of an admission by the Lesser regarding the amount of damages for use and occupation. It can, thereforee, form a reliable basis for the assessment of the damages even between the respondent and the appellants. The assessment is also made for the period 1952 to 1954 while the claim of Jia Rani was also for the period from 1951 to 1954. We are of the view, thereforee, that damages for use and occupation should be awarded to Jia Rani against the defendants appellants at this rate. So calculated on a site which is 110 square yards in area, the damages come to Rs. 544.50. In view of the definition of mesne profits in section 2(12) of the Code of Civil Procedure, interest on this amount has also to be awarded to Jia Rani. As the possession of the defendants appellants was without any right whatever, we think interest at Rs. 6.00 per cent per annum should be awarded on this amount to Jia Rani. The interest at this rate from 1951 to 1954 comes to Rs. 65.34, the total being Rs. 609.84. Interest at Rs. 4.00 per cent per annum is also granted on this amount from the date of the suit till realisation.
(14) The appeal of the defendants is, thereforee, dismissed and the cross-objections of the plaintiff respondent are partly allowed. The decree for possession in favor of the plaintiff respondent is confirmed while the decree for damages for use and occupation is modified by enhancing the amount to Rs. 609.84. The suit was brought by a minor in forma pauperis. The claim of the minor for damages for use and occupation, though essentially just, is being drastically reduced. In the circumstances, thereforee, the appellants shall pay the costs of the respondent including the full court fee paid on the memorandum of cross-objections. It need hardly be said that the palintiff respondent will be free to claim damages for use and occupation for the subsequent years at the appropriate rates on the basis of the evidence she may choose to give in such subsequent litigation. Our finding as to the rate of damages for use and occupation is confined to the years 1951 to 1954 only.
(15) A copy of the decree in appeal shall be sent to the Collector under Order Xxxiii rule 14 C. P.C for action to recover court fees under Order Xxxiii rule 10 Civil Procedure Code.