1. This appeal arises out of a suit for recovery of rents realised by the defendant from certain tenants in respect of certain lands purchased by the plaintiff at a sale held in execution of a mortgage-decree obtained by two persons, Digambar Pal and Gopinath Daripa.
2. It appears that subsequent to the decree obtained by the mortgagee, the mortgagor granted a usufruetuary mortgage in favour of the defendant. The defendant' entered into possession of the property under it and realised rent from certain tenants of the property. The plaintiff, after his purchase at the sale held in execution of the mortgage-decree, obtained possession of the property through the 'Court from the defendant, and then brought the suit out of which this appeal arises for recovery of monies realised by the defendant from the tenants for certain kists of Jeyst and Bhadra 1320, Fasli.
3. It is found that the defendant's usufruetuary mortgage was pendente lite and, as such, invalid as against the plaintiff. The plaintiff describes the defendant in the plaint as a trespasser.
4. One of the questions raised in the case was, whether the suit was barred by limitation; and, if so, which Article of the Limitation Act was applicable to the case
5. The plaintiff contended that Article 120 was the proper Article; while the defendant contended that it was Article 62.
6. The Court of Appeal below held that Article 62 did not apply and that Article 120 was the proper Article applicable to the case.
7. The defendant has appealed to this Court and has contended that the proper Article applicable to the suit is Article 109, but even if that is not applicable, Article 62 should be held to apply, and in any case Article 120 is not applicable to the suit.
8. We are of opinion that the first contention is correct, and that Article 109 is the proper Article applicable to the suit.
9. That Article provides a period of three years' limitation for a suit for recovery of profits of immoveable property belonging to the plaintiff whiab have wrongfully been received by the defendant.
10. There is no doubt that the monies received by the defendant are profits of immoveable property and upon the finding, those profits belong to the plaintiff.
11. It is contended, however, on behalf of the respondent that those profits cannot be said to have been wrongfully received by the defendant at the time they were received; because at that time, the defendant claimed to realised them as usufructuary mortgagee. But, as stated above, that mortgage was invalid as against the plaintiff; the words 'wrongfully received' in Article 109 include receipt of profits that cannot legally be substantiated.
12. In the case of Peary Mohan Roy v. Khelaram Sarkar 1 Ind. Cas. 157, 35 C, 996 : 8 C. L. J, 181 : 13 C, W. K. 15 : 4 M. L. T. 419., a suit was instituted by the owner of a putni for recovery of mesne profits against the defendant who had purchased the putni at a sale under Regulation VIII of 1819 and had been in possession under the purchase which was subsequently set aside. It was held that the defendant, wrongfully received the profits which were, receivable by the plaintiff and that Article 109 and not 120 governed the case.
13. Our attention has been drawn, on behalf of the respondent, to the case of Bhubanesuar Bhattacharjee v. Dwarakeswar Bhattacharjee (4). But that was a case in which a suit was brought by a co sharer landlord against another for a share of the paddy-rent collected by the latter, the paddy-rent being due in respect of lands held by the co-sharers not separately but jointly, and different considerations would arise in a case of this kind as the receipt of rent by the co-sharer was not wrongful.
14. We are accordingly of opinion that Article 109 is applicable to the suit. That Article lays down that the period of three years is to be counted from the time when the profits are received.
15. In this case there is no finding when the profits were received.
16. The case must accordingly be sent back to the lower Appellate Court in order that that matter may be inquired into.
17. If the profits were received within three years, the question of limitation must be decided in favour of the plaintiff.
18. The learned Pleader for the respondent has contended that, even if the profits were received beyond the three yours before the date of the institution of the suit, the Court should consider Whether limitation was suspended or not; because the sale at which the plaintiff purchased was on a later date, i e , on some date within three years of the suit. This question', however, was not raised in the Cours below, and all the meterials for., deciding the question whether there should or' should not be any suspension of limitation in the case are not before us. We, therefore, think that if the Court below finds that' the profits were received more than three years, before the date of the suit, this question will be gone into by that Court.
19. It is contended on behalf of the appellant, that even if the suit is not barred by limitation, the rent ought to be apportioned between the defendant and the plaintiff, having regard to the principle embodied in Section 36 of the Transfer of Property Ask. This, question will also be considered by the Court below,
20. The case is accordingly sent back to the lower Appellate Court for disposal according to law, having regard to the observations, made above.
21. Costs to abide the result.