1. The original Defendant Shrikant Panachand Shah has preferred this second appeal under section 100 of the Civil Procedure Code, 1908 against the judgment and decree passed by the Assistant Judge, Kolhapur on 31-8-1984 whereby he set aside the judgment and decree passed by 3rd Jt. Civil Judge, Junior Division, Kolhapur dated 20th February, 1982.

2. Walubai Panachand Shah (for short, ‘original Plaintiff’) filed a suit for mesne profits of the property which had come to her share in the decree for partition. A suit for partition earlier was filed by Vijaya, the daughter of original Plaintiff registered as S.C Suit No. 109/1971 against her mother Walubai, brother Shrikant (for short, ‘original Defendant’) and sister Subhadra. In the said suit a decree for partition was passed on 14th March, 1973. The original Plaintiff Walubai and the original Defendant got half share each in the property in question. It appears that execution was levied by original Plaintiff for having her share partitioned by metes and bounds and in that proceedings Court-receiver was put in possession of the suit house since 1977. The original Plaintiff Walubai thereafter filed a suit for account of mesne profits relating to the property which fell in her share but original Defendant continued to remain in possession of the same unlawfully. The original Defendant resisted the claim of the original Plaintiff and one of the pleas set-out in the written statement was that the present suit for accounts of mesne profits was not maintainable. The trial Court after recording the evidence held that original Plaintiff was not entitled to claim account of mesne profits and accordingly on 20th February, 1982 dismissed original Plaintiff's suit. The judgment and decree passed by 3rd Jt. Civil Judge, Junior Division, Kolhapur on 20th February, 1982 was challenged in appeal and the Assistant Judge, Kolhapur reversed the judgment and decree passed by the trial Court, allowed the appeal of the original Plaintiff on 31-8-1984 and passed a preliminary decree for accounts of mesne profits.

3. Upset by the judgment and decree passed by Assistant Judge, Kolhapur on 31st August, 1984, the present second appeal has been preferred by original Defendants.

4. The only question that arises for consideration in this second appeal is:

“Whether the fresh suit for mesne profits was maintainable after the decree for partition was passed or such suit was barred by Order II, Rule 2 of Civil Procedure Code, 1908?”

5. Admittedly, in the suit for partition filed by the daughter of plaintiff no relief for mesne profit was granted. In the earlier suit for partition, the question of mesne profits was also not gone into. The earlier suit for partition was not filed by original plaintiff but was filed by her daughter in which she was one of the defendants.

6. Section 2(12) of the Civil Procedure Code defines mesne profits as follows:

“mesne profits” of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession:”

7. After the decree was passed in the suit for partition on 14-3-1973 whereby the original Plaintiff herein got half share, she was entitled to enjoy the possession of the half share but the original Defendant continued to remain in possession of the property which fell into the share of original plaintiff. To that extent possession of original defendant was unlawful and Plaintiff became entitled to mesne profits.

8. Order II, Rule 2, Civil Procedure Code cannot be said to create a bar of a suit for mesne profits filed subsequently to a suit for partition by the party who was defendant in that suit after the decree has been passed because the claim for mesne profits had not accrued by that time. Merely because all the parties in the suit for partition stand in the shoes of plaintiff will not make any difference.

Order II, Rule 2, Civil Procedure Code provides that every suit shall include the whole of the claim which the Plaintiff is entitled to make in respect of cause of action but a Plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. Where the Plaintiff omits to sue in respect of or intentionally relinquishes any part of his claim he is not permitted to sue in respect of portion so omitted or relinquished subsequently. A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he omits to sue, he shall not afterwards sue for any relief omitted, except the leave of the Court. It may be observed that a fundamental postulate for the application of Order II, Rule 2, Civil Procedure Code is that there must be one and only one cause of action before its rigour could be attracted. Order II, Rule 2 cannot be pressed in service where cause of action in subsequent suit is different, distinct or separate. Right to claim mesne profits is regarded as distinct and separate cause of action from the cause of action for partition and separate possession of immovable property. Order II, Rule 4 on its reading as plain as it is would support the proposition that claim for damages or mesne profits is different from claim for recovery of immovable property. The expressions “cause of action” and “claims” used in Rule 4 of Order II have the same meaning and expression of convenience. Order II, Rule 4, Civil Procedure Code reads:

“4. Only certain claims to be joined for recovery of immovable property.— No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except —

(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof;

(b) claims for damages for breach of any contract under which the property or any part thereof is held; and

(c) claims in which the relief sought is based on the same cause of action:

Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.”

9. The full bench of this Court in Shankarlal Laxminarayan Rathi v. Gangabisen Maniklal Sikchi, 1972 Mh.LJ 738 : AIR 1972 Bom. 326 has extensively and elaborately considered the scope of Order II, Rule 2 and Rule 4, Civil Procedure Code and held:

“21. Rule 4 uses the expression “cause of action” in the opening part, and the word ‘claims’ in clauses (a), (b) and (c) which form the exception, and this difference in the two expressions appears to have been made only for the purpose of avoiding confusion and for the sake of clarity of language. It is not possible to hold that an exception refers to a different subject from the general rule be that the exceptions refer to claims while the general rule to which they are exceptions refers to cause of action. Necessarily, it seems to us that we must construe “claims” in clauses (a), (b) and (c) of Rule 4 to be equivalent to “cause of action” in that rule. The different words are used only in order to avoid repetition and for convenience of expression, especially having regard to the language of clause (c).

25. Order 2, Rule 2 must therefore be read along with Order 2, Rule 4. We have already shown how in Order 2, Rule 4 claims for mesne profits and claims for damages are contrasted and contradistinguished from the cause of action for the recovery of immovable property, and in so far as they are contradistinguished, it is clear that the law regards the two as different claims or causes of action. We have already shown that there is no difference between the words “cause of action” and “claims”.”

10. Dealing with the expression “cause of action”, the full bench in Shankarlal Laxminarayan Rathi, (supra) observed:

“18. What is a cause of action is now settled beyond any doubt. The classic definition of that expression is that of Lord Justice Brett in Cook v. Gill, (1873) 8 CP 107”.

“‘Cause of action’ has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed, — every fact which the defendant would have a right to traverse.”

Lord Justice Fry put it in the negative by saying: “Everything which, if not proved, gives the defendant an immediate right to judgment, must be part of the cause of action.” This definition is the basis of all subsequent decisions containing an interpretation of the expression “cause of action.” It was accepted in Deep Narain Singh v. Dietert, ILR 31 Cal 274 at p. 282 and by the Privy Council in Mohammad Khalil Khan v. Mohbub All Mian, AIR 1949 PC 78 at p. 86, para 61 point No. 2. This has been referred to in several cases as the media upon which the plaintiff asks the Court to arrive at the conclusion in his favour: see the Privy Council case Chand Kour v. Partab Singh, (1889) ILR 16, Cal 98 at p. 102 (PC) and in Hiromal v. Faridkhan, AIR 1915 Sind 35 at p. 36, a case upon which Mr. Deo strongly relied and in Sheokumar Singh v. Bachan Singh, AIR 1940 Pat. 76, by Rowland, J. at p. 79.

19. These cases also make it clear that the cause of action in a suit has no reference to the defence taken in the suit, nor is it related to the evidence by which that cause of action is established. In Mohammad Khalil Khan's case, AIR 1949 PC 78, to which we have referred above, this point is made in the Judgment of the Privy Council in para 61, point No. (5) as follows:—

“The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers …………..to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.”

The Privy Council followed their earlier decision in ILR (1889) 16 Cal 98 (PC). This decision has been relied upon also in AIR 1940 Pat. 76 at p. 79. Secondly the cause of action must be distinguished from the evidence upon which that cause of action is proved and though the one has no relation to the other, still the nature of the cause of action may be indicated by the nature of the evidence by which it is supported. This again is made clear in Mohammad Khalil Khan's case para 61 at p. 86 in points Nos. 3 and 4 which are put as follows:—

“(3) If the evidence to support the two claims is different, then the causes of action are also different……

(4) The cause of action in the two suits may be considered to be the same if in substance they are identical ……..”

11. It may be stated that the bundle of facts constituting cause of action for partition and separate possession by metes and bounds may not be identical for claim of mesne profits. Obviously the fact or the facts which the Plaintiff would be necessarily required to prove while claiming mesne profits would be different from the claim for partition. In a suit for mesne profits the evidence that may be required to be proved by the Plaintiff is the duration of wrongful possession of profits which the person in wrongful possession may have actually received or in the alternative constructively which he might with ordinary diligence have received. The evidence in a suit for partition cannot be said to be identical to the evidence which may be required to be produced while proving mesne profits. In Sadhu Singh v. Pritam Singh, AIR 1976 Punjab & Haryana 38, the majority view ruled that Order II, Rule 2, Civil Procedure Code does not bar a suit for mesne profits filed subsequently to a suit for possession of the property because the claim for those accrued mesne profits had not earlier been included therein. A fortiori, subsequent to the passing of the decree in a suit for partition, decree for mesne profits can be claimed in a separate suit. There is no bar either expressly or by necessary implication in filing subsequent suit for mesne profits when in the suit for partition such issue was neither raised nor considered. Order 20, Rule 12, Civil Procedure Code obviously which provides for decree for possession and mesne profits has no application to a suit for partition or separate possession of share and cannot be said to create a bar in filing suit for recovery of mesne profits after the decree for partition was passed.

12. Therefore, separate suit for mesne profits filed by original Plaintiff Respondent herein was maintainable and was not barred under Order II, Rule 2, Civil Procedure Code.

13. The appellate court did not commit any error in holding that suit for mesne profits filed by original Plaintiff was maintainable and consequently rightly set aside the judgment and decree passed by the trial Court.

14. Resultantly, the second appeal has no merit and is dismissed with no order as to costs.

Appeal dismissed.