1. This is a suit for the recovery of damages from the defendant under the following circumstances: A ticca patta was executed by the defendant in favour of the plaintiff on the 13th Shrabun 1282, stipulating that the plaintiff should remain in possession of the property leased from 1283 to 1293 on a fixed rent, which was to be applied to the payment of Government revenue, the interest upon the zurpeshgi-money, and other charges. The possession of the leasehold property not having been given to the plaintiff, a suit was brought to recover possession, and a decree was passed in his favour on the 19th of December 1877. On the 2nd of June 1879, corresponding with the 27th Joist 1286, a suit for the profits of the ticca lease for the year 1283 was brought by the plaintiff against the defendant, and a decree was obtained. The present suit was brought for the profits of the ticca for the years 1284 to 1286. An objection was taken in the lower Court that this suit was barred by the provisions of Section 43 of the Civil Procedure Code of 1877. This objection was overruled in the lower Court, which decreed the plaintiff's suit. In appeal this objection has been again taken before us, and we think that the contention of the appellant upon this point is valid, so far as the claim for 1284 and 1285 is concerned. It is supported by a decision of this Court in the case of Taruck Chunder Mookerjee v. Panchu Mohini Debya I.L.R. 6 Cal. 791. That case is not distinguishable from the present in any respect. That was a suit for rent, and the present is a suit for damages, and if there be any distinction, the distinction is against the plaintiff. Section 43, as it stood when the suit of 1879 was brought, was to the following effect: 'Every suit shall include the whole of the claim arising out of the cause of action, but a plaintiff, etc., etc. If a plaintiff omits to sue for, or intentionally relinquish any portion of his claim, he shall not afterwards sue for the portion so omitted or relinquished.'
2. Now what was the cause of action in the former suit which was brought on the 2nd of June 1879? The cause of action was the breach of contract on the part of the defendant in not having made over possession of the leasehold property to the plaintiff: The particular amount which should have been claimed in that suit was the amount of damages which had then accrued from the wrongful act of the defendant. In measuring the amount of the damages, if the plaintiff chose only to include the profits of 1283, he certainly cannot bring a second suit for any portion of the claim which had thus accrued due, and for which he omitted to sue.
3. The suit was brought in the month of Joist 1286, and, it was incumbent upon the plaintiff, under Section 43, to include in his claim the whole amount of damages sustained by him up to the date when that suit was brought. There is no question that the damages for the years 1284 and 1285 had then accrued due, therefore the plaintiff cannot successfully claim these damages in this suit. But it has been further contended that the damages for the year 1286 also had accrued due then, because the suit was brought in the last month of the agricultural year 1286. But we have no evidence on the record from which we can say that, on the 27th Joist 1286, the plaintiff, if he had been in possession, could have realized the whole or any portion of the rents and profits of that year of the leasehold property. Then it is further contended that the plaintiff could have at least claimed the interest due to him up to the month of Joist 1286, and that, therefore, to that extent the claim for the year 1286 should be disallowed.
4. Now, in the former suit for the damages of 1283, the Court decided that, according to the terms of the agreement, the interest would not fall due till the end of the year. The parties are bound by that decision. Therefore no portion of the claim for 1286 is shown to have accrued due on the 27th Joist 1286, when the first suit for damages was brought. This part of the claim is, therefore, not affected by the provisions of Section 43.
5. The plaintiff' has taken objection to the finding of the lower Court as to the amount of damages, but we are of opinion that there is no valid ground for impugning the correctness of the lower Court's decision upon this point.
6. We, therefore, reverse the decree of the lower Court so far as it relates to the years 1284 and 1285, and dismiss the plaintiff's suit for these years. The decree of the lower Court in respect of the year 1286 is confirmed. The plaintiff will pay and receive costs in both Courts in proportion to the claim dismissed and decreed.