1. Who after stating the facts as above, continued.
2. The main ground urged in appeal by the defendants, appellants, is that the present suit is barred under the provisions of Section 7 of Act VIII of 1859. It is contended that the present suit is based upon the same cause of action upon which the suit for possession during the lifetime of Rutton Dai, and the suit for wassilat after her death, were brought.
3. As regards the first of these two suits, it is quite clear that it was not brought upon the same cause of action upon which the present action is based. The succession to the estate of Koonj Behari devolved upon the plaintiff, respondent, and his other co-heirs on the death of Button Dai; therefore, the cause of action of the present suit accrued on the date of her death, viz., 10th May 1870; consequently it is not identical with the cause of action of the suit which the plaintiff, respondent, brought during the lifetime of Rutton Dai. The cause of action in this latter suit was that the plaintiff, respondent, as one of the presumptive heirs of Koonj Behari after the death of his widow Rutton Dai, was entitled to have the property alienated by her restored back on the ground of waste committed by the widow; therefore, the contention raised before us upon the basis of the first of these two suits has no validity.
4. But the question is not altogether free from difficulty as regards the other suit. It was brought after the death of Rutton Dai; it was also brought upon the same title upon which the present suit is founded; and if Section 7 had stood alone, it would have been difficult to say that the claim for the mesne profits of the estate of Koonj Behari, and the claim for the recovery of that estate, were not parts of a claim arising out of one cause of action, namely the death of Rutton Dai and the unlawful possession of the whole of Koonj Behari's estate by the defendants, appellants, to the exclusion of the other heirs. But Section 7 must be read along with the provisions of the following three sections, viz., 8, 9 and 10. It has been uniformly held, with reference to these sections, that a plaintiff, suing for possession of land first, is not precluded from maintaining a second action for mesne profits of such land.
5. In the Full Bench decision of Protap Chandra Burua v. Rani Swarnamayi 4 B.L.R. F.B. 113 the plaintiff first brought a suit for possession of land in the month of April 1855 with mesne profits from the date of Ouster, viz., 14th September 1852 to the date of suit. A decree was passed in his favour for the possession of the land only on the 18th February 1863. In execution of that decree he obtained possession on the 25th December 1864, and on the 28th August 1865 he brought a second suit for mesne profits from the 14th September 1852 to the 25th December 1864. The Division Bench, before which the case was first heard, held that the claim for mesne profits from September 1852 to April 1855 was clearly barred by limitation, and as regards the remaining portion of the claim, the learned Judges who constituted the Bench were inclined to the opinion that it was barred under the provisions of Section 7 of Act VIII of 1859. But as there were decisions conflicting with their view, they referred the point to a Full Bench. Peacock, C.J., in delivering the judgment of the Full Bench, said: 'Section 7 says that every suit shall include the whole of the claim arising out of the cause of action. The plaintiff's claim to mesne profits from the time he might obtain a decree to the time he might obtain possession under that decree, was not a claim which he had at the time when he filed his plaint; and he could not therefore include that claim for mesne profits in his plaint. Independently of that, I think that he was not bound to include his claim for mesne profits in the suit for possession.
Section 10 of Act VIII of 1859 is very clear upon that point, etc., etc., etc.
6. It appears to us that this decision was based upon two grounds: 1st, that assuming Section 7 was applicable, the suit was maintainable, because the claim for mesne profits from the date of decree to the date of recovery of possession had not arisen when the first suit was brought; and, secondly, Section 7 was not applicable by reason of the provisions of Section 10 see also upon this point Chowdhry Imdad Ali v. Boonyad Ali 14 W.R. 92; and Mussamut Rookminee Kooer v. Ram Tohul Roy 21 W.R. 223. The present is the converse of these cases. There, suits for land were brought first, and then the suits for mesne profits were brought. Here, the suit for mesne profits was brought first. But this difference is immaterial, so far as the question of construction of Sections 7 to 10 is concerned. We are, therefore, of opinion that the contention of the appellant is not valid. We, therefore, dismiss the appeal with costs.