1. The question referred to us by the Judge of the Small Cause Court of Chupra is, whether or not that Court was Tight; in deciding that the suit before it was barred by Section 13 and by Section 43 of the Code of Civil Procedure
2. The suit was brought to recover damages in respect of the crop cut by the defendants and carried away from the plaintiff's land in the month of December 1885. It seems that the plaintiff, in 1886, brought a suit in the Munsif's Court to recover from the defendants possession of the land of which the crop had been cut and also for the value of the crop. The Munsif held that there had, in fact, been no dispossession, and that the act of cutting the plaintiff's crop and carrying it away did not disturb him in his possession of the Jand. He, therefore, dismissed the suit and referred the plaintiff to the Small Cause Court for recovery of the damage which he had sustained. Subsequently, in the month of August 1886, the plaintiff was actually dispossessed of the land in question, together with some larger area; and, in 1887, he brought a suit against the defendants, being the same parties as he had sued before, to recover from them possession of the land of which they had dispossessed him in August 1886, together with mesne profits. In that suit he obtained a decree as respects part of the land in that suit with mesne profits. The present suit was brought, in the Small Cause Court of Chupra, to recover the damages alleged to have been sustained in December 1885.
3. The Judge of the Small Cause Court was of opinion that the suit was barred as res judicata by Section 13, and also barred by Section 43 of the Code of Civil Procedure. He thought that it was barred as res judicata by Section 13, because the plaintiff had made no appeal against the Munsif's decision in 1886 by which his suit for possession and for the value of the crops was dismissed. He considered, therefore, that the plaintiff had allowed the Munsif's decision to become final and that it finally disposed of the present question. And as regards Section 43, he thought that that section barred the suit, because the plaintiff, when he sued for possession on a subsequent cause of action accruing in August 1886, did not include, in his claim for mesne profits, the damages which had accrued in December 1885. The Small Cause Court Judge, therefore, dismissed the suit continently upon the opinion of this Court on the question referred under Section 617* of the Code.
4. The plaintiff is not represented before us. Baboo Kali Kisto Sen has appeared for the defendants in support of the view of the Judge of the Small Cause Court, but be has not been able to show us any reason why Section 43 should apply to this case. It appears to us clear that that section has been erroneously applied to it. We fail to see how the plaintiff could have included in a claim for mesne profits arising out of an act of dispossession committed against him in August 1886, a demand for compensation in respect of damage said to have been done to him when he was still in possession of the land in December 1885. 'Mesne profits' are defined in Section 211 of the Code of Civil Procedure, to be those profits which the person in wrongful possession of property actually received or might with ordinary diligence have received therefrom together with interest on such mesne profits. Mesne profits, therefore, could only be recovered from the date of dispossession, and not in respect of any period anterior to dispossession. Section 43 provides that every suit shall include the whole claim which the plaintiff is entitled to make in respect of the cause of action. The cause of action in the present suit was a totally different one from that in the suit of 1887. The cause of action in this case accrued in December 1885, whereas the cause of action in the other it accrued in August 1886. Section 43, therefore, does not in our opinion I and the suit. Nor, we think, does Section 13. As regards the present claim the Munsif did not deal with it. He thought he had no jurisdiction to deal with it being merely a claim for damages. If there was no dispossession of the plaintiff, we think that the Munsif was right in so finding, and in declining to go into the other question. Up to this time there has been no adjudication of the plaintiff's claim for damages in respect of the crop cut in December 1885. We do not think the plaintiff was bound to appeal against what was obviously a proper decision; and that decision did not touch his present claim. That being so we think that our answer to this reference must be that in our opinion the Judge of the Small Cause Court was wrong in dismissing the suit upon the grounds stated. As the plaintiff has not appeared there will be no costs in this reference.
* Reference of question to High Court.
[Section 617: If before or on the hearing of a suit or an appeal in which the decree is final, or if in the execution of any such decree, any question of law or usage having the force of law, or the construction of a document, which construction may affect the merits, arises, on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer such statement with its own opinion on the point for the decision of the High Court.]