1. This appeal raises a question of limitation in the following circumstances.
2. The plaintiffs are members of a joint Hindu family. The defendant held a mortgage over certain joint family properties but that mortgage had been executed only by a step-brother of the plaintiffs. In execution of the decree obtained on that mortgage the defendant himself became the purchaser of the properties, but as the plaintiffs and another deceased brother of theirs were not parties even to the suit on the mortgage, they resisted the defendant when he attempted to take possession as execution purchaser. The Court ordered their obstruction to be removed by an order, dated 4th April, 1918; and on the 5th April, the plaintiffs filed a suit under Order 21, Rule 103, Civil Procedure Code, for a mere declaration. As shortly thereafter, the defendant took possession, that plaint was amended by the addition of a prayer for possession, but it did not occur to anybody to add a prayer for future profits as well. The suit for possession was ultimately heard by the Subordinate Judge and dismissed on the 22nd March, 1921, but on appeal the District Court reversed the decree of the Subordinate Judge and gave the plaintiffs a decree for partition and possession of five-sevenths share in the suit properties. This decree was passed on 13th October, 1921. A second appeal against that decree was dismissed by the High Court on 3rd October, 1923. In execution of the decree of the District Court the plaintiffs got possession of their share of the properties by May 1922. On the facts above stated there can be no doubt that the plaintiffs are entitled to five-sevenths share in the profits received from these properties for four years, i.e., between 1918 and 1922; and on the allegations in the written statement, it is clear that the profits are received each year some time about March. This suit was instituted only on the 30th March, 1927 and it will be prima facie barred by limitation if Article 109 applied. The plaintiffs claimed that even under the three years rule of limitation they would be in time if they were allowed a deduction under Section 14 of the Limitation Act, (1) in respect of the period during which the matter was pending in Second Appeal here i.e., between 13th October, 1921 and 3rd October,1923 and (2) in respect of the period during which they were prosecuting certain proceedings by way of a claim for restitution. These latter proceedings were pending from early in 1924 till 9th March, 1927 when they were ultimately dismissed by this Court. The learned District Judge has held that the plaintiffs are not entitled to invoke the benefit of Section 14 of the Limitation Act in respect of either of these periods. Before us Mr. Somayya did not contend that Section 14 could be made applicable to the period of the pendency of the Second Appeal, but he maintained that the period during which the restitution proceedings were pending would be covered by Section 14 of the Limitation Act. He relied upon the decision of a Bench of this Court in Venkatragayya Appa Rao v. Murala Sriramulu (1912) 17 I.C. 593 as laying down that the word 'appeal' in Section 14 would also include 'Revision Petition' and he argued that in the circumstances of the present case there could be no doubt that the plaintiffs had been prosecuting the restitution proceedings diligently and in good faith.
3. For the purpose of the application of Section 14 it is not sufficient merely to say that the word 'appeal' will include 'Revision Proceedings' as well. We must be satisfied that the proceeding was being conducted bona fide and that it failed on the ground of want of jurisdiction or other defect of a like nature. The definition of 'good faith' in the Limitation Act itself, will show that it must be the result of due care and attention. It is difficult to hold that by any reasonable construction of Section 144 of the Code, the present case could have been believed to fall under that Section. Further, in view of the decisions of this Court in Ganapathi Mudaliar v. Krishnamachari : AIR1922Mad417 and Baisnath Lala v. Ramadoss I.L.R. (1914)Mad. 62 : 27 M.L.J. 640 it is not possible to say that the proceeding failed by reason of want of jurisdiction or other cause of a like nature. The mere fact that the plaintiffs might have honestly believed that they could get all that they are entitled to by way of proceedings in restitution will not suffice to give them the benefit of Section 14. We must therefore hold that the learned Judge was right in his view that the plaintiffs are not entitled to claim a deduction of either of the above periods.
4. The learned Judge has however held that the suit is governed not by the three years rule of limitation under Article 109 of the Limitation Act but by the six years rule under Article 120. On this basis, he found that the plaintiffs would be entitled only to two years profits i.e., those received in March,. 1921, and March, 1922 but their suit would be out of time in respect of the earlier two years i.e., the profits received in March, 1919, and March, 1920. The appellant-defendant objects to this decree in so far as it allowed the plaintiffs' claim even for the two later years, the plaintiffs have filed a memorandum of objections claiming that the lower Court should have allowed profits even for the first two years. As we have already held that the plaintiffs are not entitled to the deduction of any period under Section 14 of the Limitation Act, the Memorandum of Objections fails. As regards the appeal Mr. Narasimhachari maintained that the learned Judge was not right in excluding the applicability of Article 109, merely on the ground that the defendant's possession in this case was in a sense under an order of a Court of law. This portion of the learned Judge's judgment is no doubt open to that criticism and in view of the decisions in Savarimuthu v. Aitkurusu Rowthar I.L.R.(1901)Mad. 103 : 11 M.L.J. 428 Rangaswami Kavundan v. Alagayamman (1914) 2 L.W. 169 and Saraj Ranjan Choudhury v. Premchand Choudhury 22 C.W.N. 263 it will not be possible to maintain that position. But this conclusion is nevertheless right on another ground. The suit is not really one for 'mesne profits' as ordinarily understood nor even one of the description more fully set out in the first column of Article 109. According to the plaintiffs' case, they were entitled only to five-sevenths share in the properties and the defendant as purchaser of the mortgagor's interest would be entitled to two-sevenths-share in the property so that the parties were really in the position of co-owners. The first column of Article 109 speaks of property belonging to the plaintiffs and also of the profits thereof having been 'wrongfully' received by the defendant. Though the expression mesne profits is not used, this description in the first column corresponds very closely to the definition of mesne profits in Clause (12) of Section 2, Civil Procedure Code. Neither of the conditions assumed by the first column can properly apply as between co-owners, because in such a case the property cannot be said to belong to the plaintiffs alone nor could the profits received by the other co-owners be held to have been wrongfully received by them. That is why, in several cases, it has been held that the proper conception even in respect of a claim in the nature of damages as between co-owners is that it is a claim for compensation and not a claim for mesne profits (See) Watson and Co. v. Ram Chund Dutt . Mr. Narasimhachari, however contended that even as between co-owners exclusive possession by one may sometimes become wrongful especially when he is in possession in assertion of a right to the whole and denies the title of the other co-owners to any share. He relied upon a passage in Gurudas Kundu Chowdhury v. Kumar Hemendra Kumar Roy is guardedly expressed as their Lordships speak of the possession being 'in one sense' wrongful, for otherwise there will be no claim to compensation at all. It will not be fair to interpret that sentence to mean that the claim is really one of the kind contemplated by Article 109. As regards the case in Nrityamoni Dassi v. Lakhan Chandra Sen I.L.R.(1916)Cal. 660 : 30 M.L.J. 529 it no doubt lays down that from the time that a co-sharer asserts exclusive claim or collects the income in his own exclusive right, limitation will begin to run; but we are now dealing with the question of the period of limitation and not with the starting point. The judgment of a Full Bench of this Court in Yerukola v. Yerukola I.L.R.(1922)45 Mad. 648 : 42 M.L.J. 507 also lays down that as between co-sharers, the proper article applicable is Article 120 and that limitation will begin to run from the time that there is an assertion of exclusive title or what may amount to ouster. The cases cited by Mr. Nara-simhachari in respect of the character of the possession held by alienees from a co-sharer, viz., Muttusami v. Rama Krishna I.L.R(1889)Mad. 292, Sheik Abdul Gafur v. Ashamath Bibi (1919) 11 L.W. 31 and Thiagaraja Pillai v. Appavoo Pillai (1930) M.W.N. 246 do not carry this part of the case any further. On the principle recognised by the Full Bench in Yerukola v. Yerukola I.L.R.(1922)Mad. 648 : 42 M.L.J. 507 they only show that limitation will begin to run as from the date when the alienees took possession, but they do not show what the period of limitation applicable is - whether it is under Article 109 or Article 120. The learned Judge has relied upon Perumal Udayar v. Krishnama Chettyar I.L.R.(1894)Mad. 251 but no question of limitation arose in that case, because the suit was held to have been instituted within three years of the plaintiff's attainment of majority. Similarly the observations in Pirthi Pal and Uman Parshad v. Jowahir Singh
5. The principle of the Full Bench judgment in Yerukola v. Yerukola I.L.R.(1922)Mad. 648 : 42 M.L.J. 507 , is clearly applicable here and the suit must be held to be governed by the six years rule of limitation prescribed by Article 120.
6. On behalf of the appellant, Mr. Narasimhachari also took exception to the amount awarded by the Court below in respect of the mesne profits for the second period of two years. He contended that the defendant had been misled by some observations of the learned Judge and that he had not therefore examined some more witnesses whom he intended to examine. The defendant's affidavit on this point is contradicted by the affidavit filed by the learned Counsel who appeared for the plaintiffs in the lower Court. But even apart from that, the affidavit itself suggests that the evidence available, at any rate from public records, related only to the year 1920-1921, and in the written statement also, it was only that year that was claimed to have been a bad year. That fact was admitted even in the plaint and the learned Judge has taken due note of it and awarded a much smaller amount for that year than for the next year. In these circumstances, we see no force in the point about the non-examination of some witnesses whom the defendant intended to examine. Mr. Narasimhachari also took exception to the statement of the learned Judge that only D.W. 1 spoke to the failure of the crops and not any other witness. But the statement of the other witnesses is quite vague and we do not see any reason to differ from the learned 3udge in his appreciation of the evidence as to mesne profits.
7. The result therefore is that the appeal and the memorandum of objections are both dismissed, but in the circumstances without costs.