1. The facts which have given rise to the application on which this Rule was issued are shortly stated, as follows:
By a decree made on the 14th June, 1918, by the Munsiff of Assansole, the plaintiff's title to a four-anna share in certain lands was declared, and it was ordered that the plaintiff should get possession thereof and that the defendant No. 1 (the Equitable Coal Company, Ltd.) should restore the lands to their original condition and that the plaintiff should get from the said Company a sum of Rs. 90 on account of mesne profits for the period mentioned in the plaint, i.e., up to 1323 B.S. An appeal from this decree was dismissed by the Subordinate Judge of Burdwan on the 15th August, 1919. Thereafter the plaintiff recovered judgment in the Small Cause Court at Assansole against the said Company for mesne profits for the period from 1324 to 1326 at the rate of Rs. 43-12 per annum. Some time in August, 1920, the Company alleged that they had given up possession of the lands in question and restored the same to their original condition. This, however, was denied by the plaintiff and she instituted a suit (No. 1856 of 1921) in the Small Cause Court at Assansole for recovery of mesne profits for the years 1327 and 1328. The last mentioned suit was decreed on the 21st March, 1922, and the plaintiff's claim for mesne profits amounting to Es, 79-12 was allowed. Against this decree the present rule was obtained.
2. On behalf of the applicant it has been contended that the plaintiff's claim was barred under Order 2, Rule 2, Civil Procedure Code, and that at any rate it should have been held that the suit was not maintainable having regard to the provisions of Section 47, Civil Procedure Code. The learned Vakil for the applicant has invited my attention to various cases, but in the view I take it is unnecessary to deal with the same at length. No doubt there is a conflict of decisions as to whether a suit for possession of land is a bar under Order 2, Rule 2, Civil Procedure Code, to a subsequent suit for mesne profits of such land accrued due prior to the institution of the suit for possession. But in respect of a suit for mesne profits accrued due for a period subsequent to the institution of a suit for possession it is to be observed that the cause of action is not the same as that for the suit for possession, i. e., the cause of action for such mesne profits is one which has accrued subsequent to the suit for possession. It would, therefore, follow that a suit for mesne profits accrued due subsequent to the suit for possession is no bar to a suit for possession. See in this connection the judgment of Stanley, C.J., in Sheo Kumar v. Narain Das (1902) 24 All. 501. In this view of the matter, Section 47, Civil Procedure Code, would be inapplicable to the facts of this case and would be no bar to the subsequent suit for mesne profits.
3. Thus far I have dealt with the rule on the merits; but assuming that the argument advanced on behalf of the applicant is sound, it would appear that this rule must be discharged, apart from the merits on the ground that it does not come within Section 115, Civil Procedure Code, because after all, the error, if any, made by the Small Cause Court Judge was an error of law. The Rule is accordingly discharged with costs which I assess at two gold mohurs.