(1) In this second appeal, the question which arises for decision is whether the plaintiff, who is the respondent, was rightly awarded mense profits for a period of thirteen years preceding of the propertied belonging to him.

(2) The brief history of this case is as here under :

One Khupsa and his brother Abasaheb were the owners of properties of which they were tenant- in - common. They were members of a Mohammandan family. In O.S. 73/24 in the court of the civil judge, Bijapur, Abasaheb's share in the property was sold in execution of a decree and purchased by the defendant. In O.S. 299/28 in that Court, one Jainama who was another cosharer brought a suit for partion of her share of the property against the defendant who had purchased Abasaheb's share in the property.

On July 29, 1930, a decree was made in favour of Jainama for partition and possession of her 7/38 share. Jainama died during the pendency of the further proceedings and in the year 1936 the plaintiff, who is the son of Abhasaheb, was brought on record as the legal representative of Jainama. On January 26, 1937 the decree made in favour of Jainama was confirmed by the High Court Of Bombay.

On September 12, 1940, the plaintiff who brought himself on record as the legal representative as Jainama, made an application for the ascertainment of mense profits. The defendant resisted that application on the ground that the plaintiff had no title to the property. He also urged other grounds to which it would not be necessary to refer. In the year 1944 the Court determined the mense profits payable to the plaintiff at Rs. 750/-. Those were the mense profits payable till the year 1940.

From the order, First Appeal 259/44 was preferred by the defendant in the High Court of Bombay. There was an order of remand in that appeal and ultimately after the matter came back to the High Court of Bombay, it was decided on July 18, 1952 along with a second appeal arising out of O.S. 83/48 in which the defendant challenged the validity of the decree in O.S. 299/28 in which Jainama obtained a decree of partition of her 7/36 share in the properties. It is thus clear that it was only on July 18. 1952 that there was a final adjudication by the High Court of Bombay that the plaintiff was entitled to the 7/36 share.

(3) It was thereafter, on April 21, 1953 that the plaintiff was able to obtain possession of 7/36 share in the property to which he had become entiled. After obtaining such possession he brought the suit out of which the second appeal arises for the recovery mense profits from the defendant. That suit was instituted on July 8, 1953. In that suit, he claimed mense profits for a period of thirteen years preceding the suit.

(4) The Court of first instance held that the plaintiff was entitled to mense profits only for a period six years proceeding the suit. The defendant contended that the plaintiff was not entitled to mense profits for a period exceeding three years and he appealed from the decree of the court of first instance other on that ground. The plaintiff presented a cross-objection to the order made by the Court of first instance contending that mense profits should have been awarded for the entire period of thirteen years.

The defendant's appeal was dismissed. But the cross-objection preferred by the plaintiff was allowed. The lower appellate Court upheld the finding of the Court of first instance that mense profits calculated at the rate of Rs. 150/- a year had to be awarded to the plaintiff and that the plaintiff was entitled to the sum of money claimed by him by way of mense profits at that rate for all the thirteen years for which the claim had been made.

(5) The aggrieved defendant in this Second Appeal contends that the fixation of mense profits by the lower appellate Court is excessive. Mr. Albal, appearing for him contends that the Article of limitation applicable to the suit brought by the plaintiff was Art. 109 and that, being so, the plaintiff was not entitled to mense profits for a period exceeding three years prior to the institution of the suit. Mr. Albal, also contended that in fixing a sum of Rs. 150/- as mense profits payable for each year, the Court below came to a wrong conclusion.

(6) I am not impressed by the first contention. Article 109 would have governed the plaintiff's suit if it was brought for the profits of immovable property which had been wrongfully received by the defendant. Now it is well settled that suits brought for the recovery of mense profits in cases like the present one are not governed by a Article 109, but are governed only by article 120 of the limitation Act. Section 2(12) of the code of Civil Procedure defines mesne profits as profits which a person in wrongful possession of the property actually received or might with ordinary diligence have received together with the interest on such profits, whereas Article 109 refers only to suits for the recovery of profits wrongfully received.

(7) Jainanama, when she obtained a decree for partition of holder 7/36 share in the year 1930, became in tenant- in - common with the defendant who had earlier purchased Abhasaheb's share in the property. If the plaintiff's suit was for the recovery of mense profits and he made that claim as the legal representative of Jainama it could not to be said that his claim was for a recovery order profits wrongfully received by the defendant. That was the view taken by a Full Bench order the High Court of Madras in Yerukola v. Yerukola, ILR 45 Mad 648; (AIR 1922 Mad 150), Kumaraswami Sastri, J, of page 667 (of ILR Mad); (at p.157 of AIR), in discussing this question observed :

".......................... I shall first deal with Article 109 which provides for a suit to recover the profits of immovable property belonging to the plaintiff which have been wrongfully received by the defendant and fixes three years as the period of limitation, the starting point being the date on which the profits are received. It seems to me to be clear that the receipt of profits by one of several tenant- in - common cannot be said to be wrongful. The receipt of rents or profits from tenants or persons in occupation of lands held in common is one of the ordinary modes of enjoyment of property, and it cannot be said that a tenant- in - common is not entitled to receive the rents due .........................."

That view was followed by a Bench of the same Court in Naganna v. Venkatarayulu, . In that case, after the partition of joint family recovered from a their party, possession of certain lands which were accretions to the main land comprising the erstwhile joint family estate. A suit was brought by the other brother for the recovery of a half share in the accretion as mense profits.

The Lordships relying upon the earlier decision of the Full Bench of their Court, held that the 2 brothers were in the position of tenant- in - common in respect other of the lands and that the brother who was not in possession was entitled to ask for an account from the other who was in possession and enjoyment and that a suit brought by him for that purpose, was governed by Article 120 order the Limitation Act.

(8) the same view was taken by their Lordships of the former High Court of Mysore in R.S. Ramakrishna v. K. Rajagopal, AIR 1953 Mys 139.

(9) In my opinion, therefore, the plaintiff's suit in this case was governed by Art, 120 of the Limitation Act and not by Article 109, as continent, by Mr. Albal.

(10) It was next urged by Mr. Albal that even so, the plaintiff was not entitled to mense profits for a period exceeding six years preceding the institution of the suit. According to Mr. Albal, the starting point for limitation for a suit governed by Article 1220 is the date on which the right to sue accrues and that right accrued to the plaintiff in this case at the end of each year, for which he claimed mense profits. I do not find it is possible to uphold the contention of Mr. Albal that in every suit for mense profits governed by Article 120 the Limitation Act, the right to sue accrues at the end of each year for which the mense profits are claimed.

The date on which the cause of action accrues in such cases has to be fixed with reference to the circumstances and facts of each case. Ordinarily, in a case like the present one where the plaintiff was a tenant- in - common along with the defendant, the cause of action for mense profits would not accrue until a demand has been refused by the defendant.

(11) In ILR 45 Mad 648 : (AIR 1922 Mad 150) (FB) Schwabe, C. j. in discussing this question, made the following observations :

" The question raised in the order of reference is in these works : 'If Art, 120 he held applicable, the question will still arise as that whether the right to sue is to be deemed to accrue on the receipt of the profits or when an account is called for and refused. ' I am either doubtful whether that question is referred to the Full Bench fort decision, though I am inclined to construe the Order of Reference as intending so to do so. However that may be, I think that, as the matter before us, it is desirable that was should express our views upon it. The question turns in the words of Article 120;: 'suit for which no period of limitation is provide elsewhere in this schedule, time from which period beings to run, when the right to sue accrues'. Ion Municipality judgment and i have the support 9 of the authority already referred to, Maraian Beeviammal v. Kadir Meera Sahib, 29 Ind Cas 275: ( AIR 1916 Mad 1207) the right to sue arises in this kind of case when there is a demand and refusal for an account, or, it could be put as, when there is, in fact, an ouster. It really follows from what I have already said that there is no cause of action on the mere receipt by one of the brothers of any particular amount, and it is clear to my mint that the period of limitation cannot be run until the cause of action arises. That cause of action does not come into being until, at any rate, there is something done which shows that the man who got the money into his possession is holding it adversely to the plaintiff. If Article 89 is held to apply, the same result would follow when, during the continuance of the agency, the account is demanded and refused, or when the agency terminates if no such demand is made"

So tested, it does not appear to me that the cause of action in this case accrued to the plaintiff for the recovery of mense profits payable during the disputed period of thirteen years, until the High Court at Bombay decided on July 18, 1952 that the decree obtained by Jainama in O.S. 299/28 was a good decree and that the plaintiff, who was the legal representative of Jainama was therefore entiled to recover mense profits from the defendant in respect of the 7/36 share to which Jainama was entitled.

It would have been purposeless and indeed fustile for the plaintiff, during the period between September 12, 1940 when he made the earlier application for the ascertainment of mense profits and July 18, 1952, when the High Court of Bombay finally decided the matter, to make any demand of the defendant for the ascertainment of mense profits of the subsequent period.

(12) It should be taken that the plaintiff made no demand during that period for the reason that he postponed the making of the demand until there was a final adjudication by the High Court order Bombay on the title which was the subject-matter of dispute between made by the plaintiff between July 18, 1952 and the date of the institution of the suit, must be regarded as the demand made in this case.

(13) If that is, as I understand, the correct position, limitation did not commence to run against the plaintiff in respect of his to suit at any time before he brought the suit. The view taken by the lower appellate Court that the plaintiff was entitled to recover mense profits for the entire period of thirteen years is, in my opinion, the correct view, although I am nor prepared to rest my view on the grounds set out by the lower appellate a Court in this judgment.

The lower appellate Court was of the view that by reason of the pendency of the litigation between the years 1940 and 1952 there was some kind of suspension of the provisions of article 120 in favour of the plaintiff. Although the lower appellate Court made no reference to it, it thought that the provisions of Section 15 of the Limitation Act arrested the running of limitation.

(14) Now, it is clear that a Section 15 can have no application unless it is established that by some order made by a Court the Plaintiff was prevented from instituting the suit for the recovery of the mense profits to which he was entitled. No such order has been shown to me and I do not believe any such exists. That being so, Section 15 of the Limitation Act was clearly inapplicable to the facts of this case. That is the reason why I take the view that the lower appellate Court, although it came to the right conclusion, did not base it on the ground on which it should have rested.

(15) What I have stated so far should result in the dismissal of this appeal; but, Mr. Albal the learned Advocate fir the defendant has urged before me that is a case in which I should vary the rate at which the mense profits have been awarded to the plaintiff. He has pointed out to me that in the earlier proceedings in which mense profits were fixed for a period of three years till 1940, mense profits awarded to the plaintiff were determined at Rs. 50/- a year. In the present suit brought by the plaintiff in 1953, he claimed a sum of Rs. 150/- a year.

The court order first instance thought that the claim made by the plaintiff was not excessive. That view was upheld by the lower appellate Court Mr. Albal urges that the lower appellate Court gave no intelligible reason whatsover for coming to the conclusion that the mense profits claimed by the plaintiff for the period between 1940 and 1953 could, during each of the thirteen years to which the claim relates, be thrice, as much as the mense profits awarded for the earlier period.

(16) It seems to be that there is abundant force in this contention. The period for which mense profits have been awarded in this case are for the years between 1940 and 1953. For the year 1939 the mense profits awarded were only Rs. 50/-. If that is so, on what basis, mense profits of Rs. 150/- were awarded Director 1940, is difficult to understand. This is, therefore, a case in which there should be a variation order the decree only is so far as it relates to the question of mense profits awarded by the Courts below.

(17) On the careful consideration order the entire matter appears to me that the plaintiff should be awarded a sum order Rs. 1,300/- in the aggregate as mense profits payable to him for all the thirteen years at the rate of Rs. 100/- per annum on the average. That seems to be the most reasonable decree that could be made in this case and that, is the only modification that I make in the decrees of the courts below. In other respects, this appeal.

(18) Since it is admitted by Mr. Jahagirdar, the learned Counsel for the plaintiff that the mense profits awarded by the 2 courts below to him have been paid up to the defendant and since as a result of the modification of the decree which I have made, the plaintiff has to refund a portion of the amount which he has collected from the defendant, I grant to the plaintiff, as consented to by Mr. Albal, the learned Advocate for the defendant, a period of four months for the payment of this amount.

(19) Having regard to the peculiar features of this litigation, this appears to me to be a fit case in which I should direct each party to bear this own costs in all three Courts and I order accordingly.

(20) Decree accordingly.