B. Mukherji, J.
1. This is an appeal by the plaintiff Pratap Chandra Kayal whose suit against Kali Charan Acharya for damages caused by breach of a contract fails in both the Courts.
2. The contract dated April 23, 1937 (exhibit 1) was that Pratap would pay to Kalicharan Rs. 316/- by Chaitra's end of 1348 B.S. (1942) whereupon Kali Charan would reconvey moiety shares admeasuring 6.21 acres in certain plots of land. An 'ekrarnama' as that - such a familiar device - had to be resorted to, because Pratap had taken a loan of Rs. 300/- (as the averment in the plaint goes) from Kali Charan that very day, namely, on April 23, 1937 and executed a deed of sale (exhibit 2-a) in his favour for the same land reconveyance of which was secured by the 'ekrarnama'. Be that as it may, Pratap did tender the specified sum within the appointed time. But Kali Charan would not take it. That led to a suit for specific performance of the contract by Pratap against Kali Charan in 1945. It failed in the Court of first instance and the first Court of Appeal only to be decreed by this Court in second appeal on January 29, 1951. Exhibit A-1 is the certified copy of the Court's judgment. Pratap would not rest content with this success and all that followed: execution of a reconveyance on September 18, 1951 (exhibit 2) and getting into possession thereafter in 1358 B.S. (1951) of what was his: 6.21 acres of land. On January 27, 1954 he sued Kali Charan again - this time for damages the quantum of which was to be found out upon accounting on the basis of usufructs accrued to Kali Charan from 1349 B.S. (April 15 or so, 1942) to 1357 B.S. (April 14 or so, 1950).
3. The defence was a denial of the liability in fact and at law.
4. The period for which the claim is made for compensation falls into two parts: (1) 1942 when the contract was broken to 1945 when the suit for specific performance of the contract was instituted and (ii) 1945 to early in 1951 when this Court decreed the aforesaid suit for specific performance.
5. For the first part, both the Courts find that such a claim is barred under Order 2, Rule 2 (3) of the Procedure Code read with Section 19 of the Specific Relief Act, 1 of 1877. Mr. Ghose appearing for the appellant does not press this, though, according to him, the point is arguable still. So there it rests.
6. For the second part, the learned Munsiff holds it to be barred under Sub-section (2) of Section 144 of the Procedure Code - a finding which the learned Subordinate Judge upsets, there having been no variation or reversal of the decree, so far as the claim for this period is concerned. Indeed, this was never the subject of the prior decree for specific performance. Mr. Ganguli appearing for the respondent does not support this finding of the learned Munsiff. On the other hand, he accepts its reversal by the learned Subordinate Judge.
7. Mr. Ghose relies strongly upon Section 73 of the Contract Act, 9 of 1872, but in vain. Nobody denies the appellant's right to receive compensation for the contract having been broken by the respondent. But under Section 19 of the Specific Relief Act, 1 of 1877, he ought to have sued for it when he had sued for specific performance in 1945. Once he failed to do so, he lost the right of a further suit (as the present one) founded on the same cause of action. True it is, as Mr. Ghose submits, that there he could not have claimed damages beyond the date of the suit. But only because litigations have had tortuous progress in our Courts - in July, 1962 I am delivering judgment of this second appeal arising out of a suit instituted on January 27, 1954 that does not give rise to a fresh cause of action for damages for the earlier post-suit period from 1945 to 1951. Considered so, the prayer for damages from 1945 to 1951 appears to be unwarranted at law.
8. Mr. Ghose is on ground less week when he submits : give me mesne profits. The plaint is cast in a manner that the suit may be treated as one for that: mesne profits. It does not therefore fall to be considered whether or not damages and mesne profits, in the context here, are convertible terms - a point Mr. Ghose emphasizes. But then the question is: when does wrongful possession of the respondent begin? Mr. Ghose submits: right from 1942 when the contract was broken and a fortiori from 1945 from when compensation is now claimed. Mr. Ganguli submits: from 1951 when the reconveyance was executed. I accept Mr. Ganguli's contention and reject Mr. Ghose's. The cause of action for mesne profits is an independent one. The weight of authority is so. Such a cause of action arises when the respondent holds on wrongfully in spite of his lack of title. But his title ceased only on September 18, 1951 when the reconveyance was executed by the court. This falls outside the period for which the claim of mesne profits is made. An agreement to reconvey land does not pass title. So, the appellant's claim cannot but fail.
9. It now remains for me to notice two cases consideration of which I have postponed so far, because they contribute title. Satgur Prasad v. Har Narrain Das Mr. Ghose cites, reveals a deed of surrender dated November 25, 1924 executed by the plaintiff Har Narain in favour of the defendant Satgur having been struck down on the ground of fraud and undue influence. That being so, as between Satgur and the person he had defrauded, namely, Har Narain, Satgur's possession was wrongful right from November 25, 1924 when he went into possession by the deed of surrender. The parties were therefore put back in the position which they occupied respectively that day : November 25, 1924 under the doctrine of restitutio in integram. To spell anything like this front the case in hand (where fraud is conspicuous by its absence) is an impossible task.
10. Again, in Satgur's case, the transaction regarded as one of contract is caught by Section 65 of the Contract Act, 9 of 1872. Fraud makes the contract void and Satgur cannot take advantage of his own wrong. Regarding it as one that has passed out of the realm of the contract', it is met by Section 88 of the Trusts Act, Satgur having procured the deed by taking advantage of the fiduciary relationship in which he stood to Har Narain. Nothing that I see upon the whole of the evidence can lead me to hold that the respondent Kali Charan stood in a fiduciary relation to the appellant Pratap, though Mr. Ghose urges upon me to hold so. So this Privy Council decision does not help matters forward for the appellant.
11. Somasundaram Chettiar v. Chidambaram Chettiar : AIR1951Mad282 , Mr. Ganguli cites, deserves to be distinguished only with this observation that the learned subordinate judge there awarded Rs. 1000/- as damages in addition to the relief of specific performance he granted, though the plaintiff had not specifically prayed for solatium. This is what Rajamannar, C. J. and Somasundaram, J. did not countenance. Nothing like this can be said of the litigation I am deciding now.
12. In the result, the appeal fails and is dismissed but without costs, in the circumstances of the case.
13. Leave to appeal under Clause 15 of the Letters Patent is asked for and refused.