1. The plaintiff was the owner of a putni mehal under the Maharaja of Burdwan. The mehal was sold under Reg. VIII of 1819 for arrears of rent for the year 1306 and was purchased by the first defendant. The sale took place on the 18th May 1900. After wards, the first defendant transferred the property to the second defendant, his wife. The plaintiff instituted a suit (No. 64 of 1900) for setting aside the putni sale and obtained a decree for possession on the 27th February 1901. He took possession on the 11th September 1901. During the period between the 18th May 1900 and the 11th September 1901, the defendants, or either of them, were in possession of the putni property. The plaintiff instituted the present suit for mesne profits for the period that the defendants were in possession, namely, from 18th May 1900 to 11th September 1901.
2. It is admitted that the claim for the amount, if any, recovered by the defendants or either of them within three years of 6th April 1904 (the date of the institution of the suit) is not barred by limitation.
3. The question argued in the lower Courts and also before us is whether the claim for mesne profits for the period before three years of the institution of the suit, i.e., the period from 18th May 1900 to 5th April 1901 is barred by limitation. The lower Courts were of opinion that Article 120 of the Second Schedule of the Limitation Act applied to the case and not Article 109 of the same Schedule as contended for by the defendants. In support of the view which the lower Courts took, they relied on the decision of this Court in Dhanput Singh v. Saraswati Misrani 19 C. 267. That was, however, a case not of mesne profits but of rent and the question raised in it was whether the plaintiff who was the landlord and was in possession, having himself purchased at the sale under the putni regulation, could sue for rent for the period during which he was in possession. The answer was that the plaintiff was not a trespasser within the meaning of the rule that a landlord who causes trespass on the land of his tenant is not entitled to rent for the period of his trespass. All that the Court held in that case was that it was not a trespass of that kind, that the case was distinguishable and that the plaintiff would be entitled to recover rent after giving credit for the amount, if any, that he actually recovered from the tenants in occupation.
4. Article 109 of the Second Schedule of the Limitation Act is clear in its terms. It relates to the profits of immoveable property belonging to the plaintiff which have been wrongfully received by the defendant. In the present case, there can be no doubt that defendants or either of them wrongfully received profits which were actually receivable by the plaintiff but for the illegal putni sale which was afterwards set aside. The period of limitation is three years and it runs from the time when the profits were received. No question arises on the words of the article when the cause of action arose? The words cause of action are not used. That the view we take is correct is clear from the words which follow, in the third column, namely, where the plaintiff has been dispossessed by a decree afterwards set aside on appeal, when he recovers possession.' The Legislature limits the conditions under which the period of three years may be extended if a person takes possession in execution of his decree and the defendant afterwards succeeds in getting the decree of the first Court sot aside on appeal and then retakes possession, his right to sue for mesne profits accrues from the date when he gets a decree from the Appellate Court. That case is excepted from the rule. No other case is excepted. We must, therefore, construe the words when the profits are received as meaning when the profits are actually received. We do not see our way of getting over a construction which is patent from the words used in Article 109. Article 120 does not, therefore, apply, but, Article 109 is clearly applicable.
5. In Kishnanund v. Kunwar Pertab Narain Singh 10 C. 785, a contention similar to the one before us was raised before the Judicial Committee of the Privy Council. It was contended that, when the Settlement Officer gave possession to a person, the possession was not that of a trespasser and it was not wrongful within the meaning of Article 109. The Judicial Committee observed, quoting the words of Article 109, that the argument could not be supported and the point was practically abandoned by the learned Counsel who argued the case. We are, therefore, of opinion that the decree of the lower Appellate Court should be set aside.
6. But then remains the question whether we should remand the case for a finding as to the amount payable by the defendants to the plaintiff for the period between the 6th April 1901 and the 11th September 1901. It appears from the Commissioner's report that the sum of Rs. 377-7-8 was realised by one Jadab as gomastha of the defendants for the period from Falgun 1307 to 31st Sraban 1308. It does not appeal that the defendants or any of them realized any further sum. The liability of the defendants would be less than the sum of Rs. 377-7-8. But the learned Counsel for the defendants has no objection to a decree being passed in favour of the plaintiff for this sum preferring it to the harassment of a continuation of the litigation for a smaller amount. We, therefore, direct that in lieu of the decree passed by the lower Appellate Court a decree be entered in favour of the plaintiff for the sum of Rs. 377-7-8. We direct that the appellant do get cost of this appeal as well as the costs incurred by him in the lower Courts in proportion to the claim dismissed.