P.N. Mookerjee, J.
1. This appeal by the defendants arises out of a suit for recovery of damages for use and occupation, or alternatively mesne profits. Upon the landings of the Courts below on the questions of fact which have not been and cannot, be either in law or on the materials on record challenged in this appeal the position stands thus:
2. The property in suit belonged, originally, to Dr. Kartick Chandra Bose and Sons, of Calcutta, under a lease from the Chatterjees. On 23-5-1945, this property was transferred by a conveyance by Dr. Kartick Chandra Bose and sons to the plaintiffs of the present suit and by the said conveyance not only the property but also all right to realise arrears of rent, compensation, etc., in respect of the said property was transferred to the plaintiffs. It is the plaintiffs' case that the defendants had trespassed into the lands sometime in June 1942, and were continuing their wrongful possession as trespassers. The plaintiffs have brought the present suit for damages for use and occupation, or alternatively, for mesne profits, for the period February 1943 to January 1946, the prior period from June 1942 to January 1943, having been apparently left out of account because of the law of limitation. Both the Courts below have decreed the plaintiffs' suit,
3. In this appeal Mr. Chakravarty, appearing on behalf of the defendants appellants, has raised two contentions (1) that the assignment of a claim for damages would be invalid under the law and, therefore, on the basis of the assignment of the right to recover compensation as made by the conveyance from Dr. Kartick Chandra Bose & sons, the plaintiffs would not be entitled to get any relief, and (2) that even assuming that such assignment was valid & gave the plaintiff's the right to recover compensation, the plaintiffs are not entitled to succeed in the present suit, as they, having been out of possession at the date of the suit, cannot maintain a suit for damages or mesne profits without a suit for recovery of possession, the more so, as their vendors also were out of possession at the date of this conveyance. In my opinion, none of the two contentions raised by Mr. Chakravarty can be accepted.
4. In support of his first contention Mr. Chakravarty relied upon Section 6(e), T. P. Act, and pointed out the difference in language between the said Clause (e) and Clause (c) of that Section. According to Mr. Chakravarty this difference in language shows that, even though the property itself might be transferred, and the right claimed may be incidental to the ownership of that property, still the transfer of this right would be hit by Clause (e) of Section 6, T. P. Act, and that clause would make the assignment of such right invalid. I am unable to hold that this view of the matter is correct. The use of the word 'mere' in Clause (e) is significant and that, in my opinion, is sufficient to show that when the property itself is transferred, and along with it the right to claim compensation or damages in respect of the same, the transfer of the right to claim compensation or damages is a valid transfer. In other words, the same result is obtained by the use of the word 'mere' in Clause (e) as is obtained by the use of the expression 'apart from dominant heritage' in Clause (c). I am of opinion, therefore, that when a property is transferred and, along with it, a right to recover damages or compensation in respect of that property, the assignment of this right is a valid assignment and is not hit by Clause (e) of Section 6, T. P. Act. In this view, I am supported by the authority of a Bench decision of this Court in the case of -- 'Hanmatha Nath v. Matilal Mitra', 33 Cal W N 614. I may also mention here that neither the case of -- 'Manmatha Nath v. Hedait Ali', 59 Ind App 41 (PC), nor the case of -- 'Jewan Ram v. Ratan Chand', 26 Cal W N 285, is against this view. There is nothing in any of the said two decisions which militates with the view which 1 have expressed above or the view which has been expressed in '33 Cal W N 614'. Rather, it seems to me that the case in '26 Cal W N 285' supports the said view.
5. In the Privy Council case in -- 'Manmatha Nath v. Hedait Ali', 59 Ind App 41 (PC), it was not necessary for their Lordships to consider this aspect of the matter as, upon the admitted facts, their Lordships found that the claim which had been transferred in that case was an actionable claim, that is a claim to a definite sum of money a claim by way of reimbursement of money paid. In 26 Cal W N 285, it was found that there was no transfer of the property but only the right to recover damages had been transferred, and, in that view of the matter, their Lordships held that the assignment would not be valid. It is clear, however, from the discussion in -- 'Jewan Ram v. Ratan Chand', 26 Cal W N 285, that their Lordships recognised the distinction between transfer of a mere claim for damages in respect of a property and the transfer of the property along with the right to recover damages in respect of the same and expressed themselves unequivocally, in favour of the validity of the assignment of the right to recover damages in this latter case.
6. I hold, therefore, that there is no substance in the first contention, raised by Mr. Chakravarty. It is, accordingly overruled.
7. As to the second contention, raised by Mr. Chakravarty, it is to be observed, in the first place, that upon the findings of the Courts below there has been sufficient proof in the present case of title--at any rate, of a prima facie title--in the plaintiffs. Mr. Chakravarty contends that, on the authority of the decisions in the cases of -- 'Lep Singh v. Nimar Khasia', 21 Cal 244, and -- 'Giri Narain v. Modhu Sudan', 17 Cal W N 324, this suit must be held to be not maintainable and the proper suit for the plaintiffs would be a suit for recovery of possession of the disputed property, in which they might also include the claim for damages or mesne profits.
8. It is true that the case in -- 'Giri Narain v. Modhu Sudan', 17 Cal W N 324, states the proposition somewhat broadly in favour of Mr. Chakravarty, but it is equally true that in that case this question did not strictly arise and was not a relevant, at any rate, not a necessary, issue. It is absolutely clear from '17 Cal W N 324', that there their Lordships distinguished the case in -- 'Lep Singh v. Nimar Khasia', 21 Cal 244, on facts & proceeded to demonstrate that, even upon the widest interpretation in favour of the defendant, the case in '21 Cal 244', could not afford any assistance to him. I am convinced that the statement of the proposition in the broad form in which it appears in '17 Cal W N 324', is not an accurate statement of the decision in '21 Cal 244', and their Lordships in '17 Cal W N 324', never meant to lay down the proposition in those broad terms. '17 Cal W N 324', is, therefore, no authority in support of Mr. Chakravarty's second contention and cannot reasonably be construed -- having regard, particularly, to its actual decision -- adversely to the plaintiffs in the present suit.
9. As to the case in -- 'Lep Singh v. Nimar Khasia', 21 Cal 244, it is enough to say that, apart from the fact that' that case is also clearly distinguishable and is, strictly speaking, no authority on the present question, there is, even in that case, one observation which is highly significant and which really supports the plaintiffs respondents. It is clear from the decision in '21 Cal 244', that there their Lordships recognised that proof of title would entitle the plaintiff to a decree for mesne profits, irrespective of the question of possession. That case related to a claim for the value of fruits grown in the suit land during the period of the plaintiff's alleged possession thereof and the plaintiff's claim was sought to be resisted by the defendants by setting up title in themselves with regard to the suit land. In these circumstances their Lordships held that (1) if the defendants succeeded in proving title in themselves the plaintiffs' suit would fail, (2) if the plaintiffs succeeded in proving their title their suit would be decreed and (3) if neither party succeeded in proving title the plaintiffs would still succeed if the plaintiffs proved their possession of the suit land at the date of the suit and prior thereto. In my opinion, there is nothing in '21 Cal 244' which supports Mr. Chakravarty's second contention. On the other hand, it seems to me that that decision, when closely read, is opposed to that contention as it clearly lays down that the plaintiff would be entitled to succeed if he has proved title to the suit property which, in the context and the circumstances of that case, can only mean a prima facie title or, to put it in other words, the plaintiff would be entitled to succeed if he has given prima facie proof of title to the suit property. This conclusion seems irresistible when we remember that the case in '21 Cal 244', purports to be based--and is also really based--upon the decision in the case of -- 'Radha Churn v. Zumuropnissa Khatoon', 11 W R 83 (Cal). That decision, if closely analysed, leads, to this position that the plaintiff in a suit of the present type can succeed on prima facie proof of title and prior possession may, under certain circumstances, be sufficient prima facie evidence of title. To my mind, the cases in '21 Cal 244 and 11 WR 83 (Cal)' rather appear to be authorities against the appellant -- at any rate no argument against the maintainability of the plaintiffs' suit can be founded upon any of them. 'Radha Churn's case' has some resemblance to the present case and the decisions therein substantially favours the respondents.
10. In the above state of the law, the plaintiffs' suit cannot be held to be not maintainable as upon the findings of the Courts below -- and these findings are amply justified on the materials on record -- the plaintiffs' title to the suit property has been sufficiently proved and there is no case or claim of the title having been extinguished by limitation or adverse: possession and the test of 'prima facie evidence of title' laid down by Sir Barnes Peacock in --'Radha Churn's case', (11 W R 83) has been satisfied by the plaintiffs beyond all doubts.
11. There is also another aspe9t of the matter. On the authority of the cases of -- 'Samiulla v. Nil Mamud', 97 Ind Cas 564 (Cal) and -- 'Surnomoyee v. peonath Gir Sunnyasee', 9 Cal 908, the plaintiffs may be said to have, waived the trespass and sued for damages. This position is clearly tenable as, admittedly in the present suit, there is a claim for damages for use and occupation and the claim for mesne profits is only in the alternative. In this view of the matter, apart from anything else, the present suit would be maintainable.
12. In the light of what I have said above, I am bound to overrule also the second' contention raised by Mr. Chakravarty and I reject the same.
13. My conclusion, therefore, is that the plaintiffs' suit has been rightly decreed by the Courts below. This appeal, accordingly, fails and is dismissed with costs.
14. Leave to appeal under Clause 15 of theLetters Patent is asked for and is refused.