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Fassib-ad-dIn and anr. Vs. Abbas and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1897)ILR24Cal413
AppellantFassib-ad-dIn and anr.
RespondentAbbas and ors.
Cases ReferredDoe v. Harlow
Excerpt:
mesne profits - limitation act (xv of 1877), schedule ii, article 109 - wrong-doers independent of the defendant--civil procedure code (1882), section 211. - .....another suit a decree for possess of property from which they had been ousted, have brought this suit mesne profits.2. this suit was originally brought only against imambandi begui (sic) no was the principal defendant in the other suit, but in consequence of her alleging in her written statement that she had been dispossessed by other persons of a portion of the land in respect of which mesne profits were sought, those other persons, viz., dulhin golab kunwar and awadh behari narain singh, who had also been parties to the suit for possession, were, at the instance of the plaintiffs, added as defendants in this suit.imambandi begum died pending this suit. period of time from which period description of suit. limitation. begins to run.for the profits of immoveable three years ... when.....
Judgment:

Trevelyan and Beverley, JJ.

1. The plaintiffs, having obtained in another suit a decree for possess of property from which they had been ousted, have brought this suit mesne profits.

2. This suit was originally brought only against Imambandi Begui (sic) no was the principal defendant in the other suit, but in consequence of her alleging in her written statement that she had been dispossessed by other persons of a portion of the land in respect of which mesne profits were sought, those other persons, viz., Dulhin Golab Kunwar and Awadh Behari Narain Singh, who had also been parties to the suit for possession, were, at the instance of the plaintiffs, added as defendants in this suit.

Imambandi Begum died pending this suit.

Period of Time from which period

Description of suit. limitation. Begins to run.

For the profits of immoveable Three years ... When the profits are received, or

property belonging to the plaintiff where the plaintiff has beendlapossessed

which have been wrongfully received by a decree afterwards set aside on

by the defendant. appeal when he recovers possession.]

3. The learned Subordinate Judge has given to the plaintiffs a decree against the heirs of Imambandi Begum, and has declined to adjudicate on the liability of the added defendants, considering it to be a question between the defendants themselves.

4. The heirs of Imambandi have alone appealed to this Court, so that their liability to the plaintiffs can alone be determined in this appeal, and in whatever way we may alter the decree against them, we cannot in this appeal fix any liability upon the added defendants.

5. The two questions argued before us were: (1) Whether the plaintiffs can recover mesne profits for more than three years before suit and (2) whether the liability of Imambandi for mesne profits continued after she had been herself ousted from the property

6. The learned Subordinate Judge has given a decree for more than three years before suit. His judgment on this question is as follows: '1st Issue-The mesne profits are claimed from 1297; and I have to determine whether the claim for 1297 and 1298 is barred by limitation. The present suit was filed on the 26th September 1893, and the plaintiffs' cause of action for the mesne profits of 1297 arose at the beginning of 1298. The Fusli year 1297 ended on the 28th September 1890; and the plaint in this case having been filed on the 26th September 1893, the claim [415] for the mesne profits of 1297 was just within time ; and the claim for 1298 is d fortiori not barred by time.'

7. The appropriate article of the Limitation Act is Article 109, which allows three years from the time when the mesne profits are received, i.e., the defendant is liable for all mesne profits received by him (or to use the words of Section 211 of the Civil Procedure Code, which he might with ordinary diligence have received) during the three years before suit, and not before. There is nothing in the Act to fix the period with reference to the time when rents fall due. It is the actual receipt of the rents, whenever they may have fallen due, which creates the liability. The rents long since due (sic)ents not yet due would, when received, equally fall within the expression mesne profits, as much as rents which are at the moment accruing due. This interpretation is that which, as far as we know, has been always placed upon this article of the Limitation Act and we know of no authority to the contrary under the present Limitation Law. In the case of Mahomed Biasat Ali v. Hasin Banu I.L.R. 21 Cal. 157 a decree for more than the three years was admitted by Counsel to be incorrect and was accordingly varied by Her Majesty in Council. The decisions in Byjnath Pershad v. Badhoo Singh 10 W. R. 486 Thakoor Dass Acharjee Chuckerbutty v. Shoshee Bhoosun Chatterjee 17 W. R. 208 and Thakoor Das Roy v. Nobin Kristo Ghose 22 W. R. 127 are under a different law, and are not therefore binding upon us. In our opinion the plaintiffs cannot in any event recover mesne profits received by Imambandi, or which might have been received by her, before the 26th September 1890.

8. The second question arises as follows: In her written statement Imambandi alleged that she had been excluded from occupation of a part of the land by an order of the Criminal Court obtained at the instance of the added defendants. The second issue is wide enough to include this question. The larned Subordinate Judge treats the question as one arising between the defendants themselves, not as arising between the plaintiffs and Imambandi. It is true, he says, that if the evidence taken by the Amin be not looked into, there is no reliable evidence whatsoever to show, that Dulhin Golab Kunwar and Awadh Behari [416] ever held any ol the lands in dispute. But it is clear from his judgment that he declined to allow this question to be entered into.

9. It remains to be seen whether the Subordinate Judge's view is justified by the law. To use the words of Mr. Justice PHEAR in Indarjeet Singh v. Radhey Singh 21 W. R. 269: 'Generally from the nature of the claim to mesne profits, mesne profit sougbt not to be estimated for any period during which the defendant who is to be made responsible for them was not active in keeping the plaintiff out of possession.' In that case the property was in the hands of a receiver appointed by the Court, and the same learned Judge pointed out that the defendant could not be answerable for damages for mesne profits in respect of those years during which an officer of the Court and not the defendant was keeping the plaintiff out of possession.

10. On this question the circumstance that an officer of the Court was keeping the plaintiff out of possession cannot differentiate it from the case where any person other than the defendant and not acting under or in collusion with the defendant was keeping the plaintiff out of possession.

11. Mesne profits are defined by Section 211 of the Code of Civil Procedure as meaning those profits which the person in wrongful possession of such property actually received, or might with ordinary diligence have received therefrom together with interest on such profits. If the defendant was excluded from possession, she can scarcely be said to have been in wrongful or any possession. She cannot be said to have actually or even impliedly received the profits, nor could she, with ordinary or extraordinary diligence, have received them. This view of the law was also taken in the case of Haradhun Dutt v. Joy Kisto Banerjee 11 W. R. 444.

12. It is complained that it would be hard upon a plaintiff to expect him to be continually enquiring whether a wrong-doer had ceased to be in possession, but in the case of every wrong, the liability of the defendant is limited to damages for the wrong which he himself has done. He is not a surety for damages resulting from the acts of other wrong-doers who are independent of him.

13. [417] In the case of Doe v. Harlow 12 A. & E. 40 the action was brought against a wrong-doer, his tenant, and the tenant's under-tenant. Lord Denman left the case to the Jury to say on the case against all the defendants how long the three bad been jointly keeping out the rightful proprietors. On the application by the tenant for a new trial Lord Denman said: 'If there had been no evidence here but that the under-tenant remained in possession I should have left the case differently.' The evidence on which the Court relied was that the tenant bad received rent from the under-tenant, and was therefore in possession through him. This case, we think, assumes that a wrong-doer is not responsible for the acts of another wrong-doer, who is independent of him. In Mayne on Damages, 4th Edition, p. 418, it is said that in an action for mesne profits when the ground of action is the bare fact of possession, damages can only be recovered for the time the possession was actually retained. The case must go back to the lower Court, in order that the appellants may have an opportunity of proving that Imambandi Begum was dispossessed. Inasmuch as her possession has been determined by the decree in the previous suit, the onus of proving dispossession must lie upon her representatives the appellants. They will not be liable for mesne profits for any time after her dispossession, or before the 26th of September 1890. The Court below must determine what mesne profits are payable between the 26th of September 1890 and the date, if any, when dispossession is proved. If dispossession bo not proved, then the plaintiffs will be entitled to mesne profits up to date of suit. It will be necessary that an opportunity for giving evidence should be afforded to the parties.

14. We allow no costs of this appeal except to the added defendants who are entitled to their costs, as no case was or could have been made against them in this appeal.


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