Report No. 144
6.1.2. Question for consideration.-
The question that has arisen is this. If a person sues for possession of property without claiming the mesne profits that have already accrued against the defendant who is alleged to be in wrongful possession, can he sue later for such accrued mesne profits? Or, is such a suit barred by Order 2, rule 2(3)?
6.1.3. According to the following High Courts, if a plaintiff who sues for possession of immovable property fails to claim accrued mesne profits, he cannot subsequently sue for the mesne profit which had already accrued at the time of the earlier suit:-
(b) Bombay (later view);2
(c) Madhya Pradesh;3
(d) Orissa;4 and
1. Saghir Hassan v. Tayab Hasan, AIR 1940 All 524 [dissented from Sadhu Singh v. Pritam Singh, AIR 1976 P&H 38 (47) (FB)].
2. Channappa v. Bagalkot Ban, AIR 1942 Born 338 (Heaumont, L.J. & Sen, J.).
3. Ram Swarup v. Jitmal, AIR 1966 MP 186 (188), para. 8 (Krishnan, J.).
4. Mukunda v. Krupasindhu, AIR 1954 Ori 202 (203, 204), left hand, para. 3.
5. Ramjanam Singh v. Khub Lal, AIR 1925 Pat 145.
6.1.4. According to the following High Courts, however, such a suit is not barred:-
(i) Andhra Pradesh;1
(ii) Bombay (earlier view);2
(iv) Madras;4 and
(v) Punjab and Haryana.5
1. Abburi Rangamma v. Chitrapu Rao, AIR 1966 AP 325.
2. Ramchandra v. Lodha, AIR 1924 Born 368.
3. Kishorilal Roy v. Sharut Chunder, 1882 MR 8 Cal 593; Sris Chandra v. Joyaramdanga Coal Co., AIR 1942 Cal 40; Santosh Kumar v. Sachindra Nath, 62 CWN 759.
4. Ponnamal v. Ramamirda Aiyar, AIR 1915 Mad 912 (913) (FB).
5. Sadhu Singh v. Pritamsingh, AIR 1976 P&H 38 (FB), dissenting from Saghir Hassan v. Tayab Hassan, AIR 1940 All 524.
6.1.5. The Madras case was a Full Bench decision. The Bench posed the following question: "If a plaintiff sues for possession only, when he might have jointed in the same cause of action claims for profits and damages, is it open to him to sue subsequently for profits which became payable before the institution of the suit and which might have been included in the suit?"1 It answered the question in the affirmative.
1. Ponnamal v. Ramamirda Aiyar, AIR 1915 Mad 912 (913) (FB).
6.1.6. The Madras case of 1915 points out that when Order 2, rule 4 says that no claims shall be joined with suits for immovable property except claims for mesne profits etc., "it is quite clear that the legislature considered that claims for the recovery of and claims for mesne profits were separate causes of action".1