1. The plaintiffs, having obtained a decree in ejectment against the defendants, sued them for the profits of the land for fasli 1312. The present suits were instituted on the 11th February 1906, The objection was taken that the suits were barred. The District Judge held that Article 109 of schedule II of the Indian Limitation Act applied and that the suits were within time and remanded the cases to the Munaif, The defendants have preferred these appeals. The respondents raise a preliminary objection that no appeal lies in this case under order 43, Rule 1, Clause (u) of the Civil Procedure Code, 1908. There is a change of language in this clause of the new Code. It says that an appeal would lie from the remand order only if an appeal would lie from the decree of the Appellate Court. We have then to determine whether there would be a second appeal if the Appellate Court had passed a decree. The suit is framed as one for mesne profits. The form of the plaint determines the nature of the suit. Such a suit as the present is exempted from the cognizance of the Small Cause Court under Clause 31 of the second schedule to the Small Cause Court Act. A second appeal would therefore lie in case there was a decree of the Appellate Court. The present appeal from the remand order is therefore regular. We overrule the preliminary objection.
2. As regards the merits of the appeals, we think the District Judge is wrong in applying Article 109, It must be taken to be concluded between the parties by the decree in ejectment that the dafendant was in possession between the date of the institution of the former suit and the date of the judgment. The judgment of two of the learned Barons of the Exchequer differing from the learned Chief Baron in Pearesev, Coaker (1869) 4 Ex., 92 was in favour of this view. And we think that a judgment' 'for possession against a defendant must be deemed to decide that the defendant was in possession at least at the date of judgment. But did defendant wrongly receive the profits of the land during the period for which the plaintiff claims? The finding is that the land lay waste. We cannot agree with the passing observation in Abbas v. Fassuh-ud-Din (1897) 24 Calc. 413 that to such a suit as the present where the defendant has not received the profits Article 109 has any application. We have then to decide between Article 39 and the residuary Article 120. Is the present action one for compensation for trespass upon immoveable property? We have come to the conclusion, though not without hesitation, that it is. The action under the English Law in such a case as the present was in trespass (see Warvelle on ' Ejectment ' page 584). A claim for mesne profits when the plaintiff has been ousted from possession is essentially one for damages. Though the measure of the profit is what, under the explanation to Section 211 of the Civil Procedure Code, the defendant might with due diligence have received, the claim still stands in damages for trespass. This is the view which has been taken in Girish Chunder Lahiri v. Shoshi Shikhareswar Roy (1900) 27 I.A. 110, Mobanik Ali v. Boistub Churn Chowdhry (1869) 11 W.R. 25. Radha Churn Ghuttuok v. Zumuroonissa Khatoon (1868) 11 W.R. 8 and Pundit Lachmi Narayan v. Sheikh Mazhar Hassan 12 C.W.N. 650. We are obliged to hold that the plaintiffs can only recover mesne profits for the period between the 12th February 1903 and the 30th June 1903 under Article 39 of the Act We modify the District Judge's orders accordingly. The costs will be provided for in the revised decrees.