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Kalidas Rakshit Vs. Keshablal Majumdar - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Reported inAIR1931Cal788
AppellantKalidas Rakshit
RespondentKeshablal Majumdar
Cases ReferredGurudas Kundu Chaudhuri v. Hemendra Kumar Ray A.I.R.
Excerpt:
- .....point at the outset. the suit, out of which this appeal has arisen, was one for ascertainment of mesne profits. how the claim for mesne profits arose will be detailed below. it appears that, as against defendant 5, who represents the well-known syedpur trust estate of the khulna collectorate,' after the decree had been had in the primary court, the matter in dispute between the plaintiffs and defendant 5 was settled. that being so, the present appellant has no-cause of action of any description against respondent 10, who was defendant 5 in. the trial court. the appeal against respondent 10 will therefore stand dismissed with costs.2. it appears that some time in 1902, the predecessor of the present plaintiffs instituted an action for recovery of possession of certain lands and for some.....
Judgment:

C.C. Ghose, J.

1. This appeal, subject to what is stated below, must be dismissed. Before we go into the facts, giving rise to this appeal, it might be convenient to dispose of one small point at the outset. The suit, out of which this appeal has arisen, was one for ascertainment of mesne profits. How the claim for mesne profits arose will be detailed below. It appears that, as against defendant 5, who represents the well-known Syedpur Trust Estate of the Khulna Collectorate,' after the decree had been had in the primary Court, the matter in dispute between the plaintiffs and defendant 5 was settled. That being so, the present appellant has no-cause of action of any description against respondent 10, who was defendant 5 in. the trial Court. The appeal against respondent 10 will therefore stand dismissed with costs.

2. It appears that some time in 1902, the predecessor of the present plaintiffs instituted an action for recovery of possession of certain lands and for some mesne profits. This litigation continued from 1902 down to 29th April 1921. The plaintiffs had to undergo various vicissitudes of fortune during this prolonged period, but, at length, on 29th April 1921, they were successful in recovering judgment for possession of the lands in suit. The decree, which they got, was however silent on the question of mesne profits.

3. Some time in 1922, the plaintiffs, or rather their predecessors, obtained possession of the lands in respect of which the decree had been made in their favour. They, thereafter, instituted the suit, out of which this appeal has arisen, on 29th May 1924, for ascertainment and recovery of mesne profits for the year 1328 B. S., that is, for the period from 14th April 1921 to 13th April 1922. The defendants resisted the claim of the plaintiffs for recovery of mesne profits, and one of the points taken by them, in their written statement, was that the present suit for mesne profits was barred by the doctrine of res judicata, there having been a claim for mesne profits included in the reliefs prayed for in the original suit and which claim had not been adjudicated upon. Upon that state of things, an issue was joined between the parties, being issue 3 in the trial Court. The trial Court held that, in the circumstances which have happened, and having regard to the provisions of the present law on the subject, the claim for mesne profits was not barred by the doctrine of res judicata. Various other points were discussed and, in the result, the trial Court gave a decree for mesne profits to the plaintiffs as prayed for. The matter was then taken, on appeal, by the defendants to the lower appellate Court. It does not appear from the points summarried in the judgment of the lower appellate Court, and which apparently were the only ones canvassed before the lower appellate Court, that any contention that the claim for mesne profits was barred by res judicata was specifically raised before the lower appellate Court. There is however a reference In a solitary passage in the judgment of the lower appellate Court, which, by implication, can be held to cover this point. But, be that as it may, this is the main point which has bean taken by the appellants (the defendants having lost the appeal in the lower appellate Court) before us.

4. Now, on this question there has been diversity of judicial opinion. The Madras and the Allahabad High Courts, on full consideration of the provisions in the Code of 1908, have definitely held that, where the decree in the previous suit is silent on the question of mesne profits, a suit for mesne profits for a subsequent period, that is, for a period subsequent to the date when the cause of action in the previous suit arose, is not barred by the doctrine of res judicata while the Bombay High Court has held that such claim is barred by the doctrine of res judicata. Now, we are in so thorough agreement with the reasoning of the Judges in the Madras High Court in the case of Doraiswami Ayyar v. T. Subramania Ayyar [1917] 41 Mad. 188, that it will not be necessary for us to go into it over again. It was held, in cases under the Code of 1882, that, as regards mesne profits subsequent to the date of the suit, it was discretionary with the Court to grant such relief and that the fact of the decree, being silent as to such mesne profits, did not operate as a bar to a fresh suit. In cases under the present Code, it has been held by the High Court of Madras that, where the decree is silent about subsequent mesne profits, a fresh suit to recover subsequent mesne profits is not barred under the present Code any more than under the Code of 1882. In the Madras case, Wallis, C. J., said:

The word 'relief' in the explanation means relief arising out of a cause of action which had accrued at the date of suit and on which the suit was brought, and did not include relief such as mesne profits accruing after the date of suit as to which no cause of action had then arisen, but which the Court was nevertheless expressly empowered to grant. The explanation having been reproduced in exactly the same words, the presumption is that it was intended to have precisely the same effect. I do not find any sufficient indication to rebut this presumption in the fact that Sections 211 and 212 of the old Code were amalgamated to form Order 20, Rule 12. The change introduced by the rule is that the award of mesne profits in all cases is to be by preliminary decree, and that when ascertained they are to be embodied in a final decree, whereas under Sections 211 and 212 they were to be ascertained in execution. This change does not appear to me to affect the construction of Expl. 5, Section 11, nor do I think is affected by the omission in Section 47 of the new Code of the proviso to the corresponding Section 244 of the old Code.

5. This view of the Madras Full Bench has been followed by the Allahabad High Court in the case of Mahomed Ishaq Khan v. Mahomed Rustam Ali Khan [1918] 40 All. 292. No doubt, the Bombay High Court has taken a different view in the case of Atmaram Bhaskar Damle v. Parashram Ballal Kelkar [1920] 44 Bom. 954. But the view of the Madras and Allahabad High Courts has been accepted in this Court by Mitter J., sitting singly, in the case of Bipulbehari Chakravarti v. Nikhil-chandra Chakravarti : AIR1929Cal566 . We prefer to accept the view taken in Madras and Allahabad, because it seems to us that this view is consonant with reason and with the language of the Code. That being so, we must negative the first contention which was pressed upon us with great persistence by Mr. Bhattacharya, namely, that, having regard to the course of events that have happened, and the previous decree being silent on the question of mesne profits, the present plaintiffs' claim for mesne profits was gone for all time. In our view, there is no substance in this contention and it must be negatived.

6. This ought to dispose of the appeal but one small point has been taken because of the decision of their Lordships of the Judicial Committee in Gurudas Kundu Chaudhuri v. Hemendra Kumar Ray A.I.R. 1929 P.C. 300. Mr. Bhattacharya urges that, having regard to the fact that there are various sets of people possessing different interests in the land, there ought to be in the decree for mesne profits an apportionment of the amount of mesne profits leviable from each set of defendants. If this point had been taken before the lower appellate Court in the form in which it has been taken, it would probably have found mention in the judgment of the lower appellate Court. But, be that as it may, when the decree for mesne profits, which the plaintiffs have obtained is put in execution, an inquiry of this nature will no doubt be made by the appropriate Court, and in this connexion the attention of that Court may (be drawn to the observations of their Lordships in the case referred to above.

7. The result therefore is that this appeal will stand dismissed with costs and, in the decree dismissing the appeal, there will be added a direction that the executing Court will adjust the amount of mesne profits payable by the various sets of defendants, and, if any inquiry is needed for that purpose, the costs of such enquiry will be borne by defendant 6, who is the appellant before us.

Pearson, J.

8. I agree.


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