Sarjoo Prosad, C.J:— This appeal relates to a suit for partition and separate possession, together with mesne profits by way of compensation, of certain lands held jointly or in common tenancy by the plaintiff and the defendants. The lands in question appertained to two holdings which were originally held by two brothers Bholanath and Kalanath in equal shares as tenants under the Gouripur Raj Estate. Kalanath died leaving a widow Mst. Rampuria Debya and Bholanath died leaving his two sons Rongbor and Bhubaneswar. Mst. Rampuria does not appear to have been recorded in the landlord's office in regard to her share of land which she inherited from her husband Kalanath.
2. On 12th November, 1934 Mst. Rampuria Debya sold 38 bighas 12 kathas 11 chataks of land, being hall of the interest in the jote in Chagalia mouza and 8 bighas of land at Pokalagi as described in the schedules ‘Ga’ and ‘Gha’ of the plaint in the specific plots to the plaintiff. The Raj Estate meanwhile instituted suits for rent against the sons of Bholanath in respect of the two holdings in question without making Mst. Rampuria Debya a party. The suits were decreed and in execution thereof the lands appertaining to the two holdings were sold and purchased by the Raj. Thereafter the Raj settled these lands with the defendants in November, 1938. The plaintiff alleged that as a result of the said settlement he had been dispossessed sometime in September, 1939 and February, 1942 by the defendants.
3. He therefore instituted a suit being Title Suit No. 59 of 1942 for declaration of his right to the lands in question and also for recovery of possession of specific plots of land on the ground that the brothers were in separate possession; in the alternative, if no such separate possession was found, then for partition. The two Courts below dismissed the suit, but on appeal to this Court the plaintiff obtained a decree on the 2nd of December, 1948. By virtue of that decree the right, title and interest of the plaintiff in the lands in question were declared and he was also given a decree for joint possession with the defendants. It appears that in the judgment of this Court the prayer for partition of the lands in question had been overlooked or quite possibly was not pressed. The plaintiff in due course put the decree into execution through Court and joint possession was accordingly given to the plaintiff on 19th August, 1949. In spite of this it appears that he had difficulties in obtaining his share of the profits of the land. He therefore instituted the present suit claiming partition of the lands in suit. He has also prayed for mesne profits for the years 1354 B.S to 1357 B.S corresponding to 1947–1948 to 1949–1950.
4. The suit was resisted by the defendants. They raised almost all the grounds which they raised on the earlier occasion and which had been answered against them by this Court. But the substantial ground on which the Court below has dismissed the suit of the plaintiff is that the claim for partition was barred by res judicata. The learned Subordinate Judge who decided the case has taken the view that, inasmuch as there was a prayer for partition in the earlier suit and that prayer had not been decreed it must be assumed that the prayer had been definitely refused, and therefore the bar of res judicata applied. The appeal is directed against this decree.
5. On the face of it, the decision of the learned Subordinate Judge is quite illegal. He appears to have ignored the position that a right to obtain partition is a right inherent in the joint ownership of property. It is a natural and legal incident of ownership which could not be denied to a co-owner of the property so long as his right subsists. The mere fact that on an earlier occasion he could not obtain partition, is no ground for holding that the right of the co-owner to seek partition is barred for ever. It is a continuing right which the co-owner possesses in the lands in question; and if on account of inconvenience or differences with the co-owner, it is not possible for him to continue in joint ownership of the property, there is no reason why the right to seek partition should be denied to him.
6. In other words, it is open to the co-owner to ask for separate enjoyment of his share of the property at any time he likes and the right to partition the land cannot be refused so long as his interest in the land is not extinguished. The proposition is too well settled to need authorities. But I would refer to only a few of them. In T.C Mukerji v. Afzal Beg, ILR 37 All 155 : (AIR 1915 All 1 (2)) (A), it was pointed out that the right to bring a suit for partition, unlike other suits, is a continuing right incidental to the ownership of joint property and a second suit is, therefore, not barred. Another decision to which reference may also be made is Jagamohini Dasi…Defendant v. Shiba Gopal Banerjee…Plaintiff ., AIR 1920 Cal 108 (B), where it was again laid down that the right to sue for partition is a continuing right and incidental to the ownership of joint property. Therefore, so long as the property remains joint, one of the co-owners has a good cause of action for bringing a fresh suit for partition notwithstanding the dismissal of a previous suit for partition.
7. As I said the law on the point is well settled and it is somewhat strange that the learned Subordinate Judge thought that the claim for partition in the present instance was barred by res judicata because in the previous suit the claim was not allowed. Mr. Bhattacharjee appearing for the defendant-respondents has strenuously argued that the principle of res judicata applies to such a case. He has tried to bolster up the view taken by the learned Subordinate Judge and has urged that the prayer not having been granted by this Court on an earlier occasion, must be deemed to have been refused and consequently the present suit of the plaintiff was not maintainable. The argument as I have shown is quite futile and must be rejected. The plaintiff's claim, therefore, for partition of the land in suit must be allowed.
8. The next question is whether the plaintiff should obtain a decree for compensation also as claimed in this suit. The claim for compensation relates to 1354 to 1356 B.S It is argued that inasmuch as the High Court decree in the earlier suit was passed on the 2nd December, 1948 and the plaintiff obtained joint possession on the 19th August, 1949, he should not be entitled to mesne profits or compensation prior to the date on which he obtained joint possession. Plaintiff's case is that in spite of repeated demands made to the defendants, the defendants continued to be in possession and enjoyment of the entire jote without giving the plaintiff his share of the profits, and that as the defendants unjustly and unlawfully enjoyed the entire usufruct the plaintiff should get compensation from them on that account to the extent of his share of the profits earned from the land.
9. There was thus a good cause of action for the suit for partition and the claim for damages and but for the fact that he dismissed the suit on the ground of res judicata the learned Subordinate Judge himself held that compensation was otherwise payable to the plaintiff. Mr. Bhattacharjee argues that the claim for mesne profits prior to August, 1949 should be refused on the ground that such a claim should have been made in the earlier suit and this not having been done, O. 2, R. 2 of the CPC was a bar to the present claim. It is argued that the right to claim a relief as to mesne profits pendente lite accrued under the same cause of action, and therefore it was necessary to include the whole of this claim in the earlier suit. It appears, however, Page: 69that R. 2 of O. 2 does not strictly speaking apply to a case of future mesne profits which accrue after the institution of the suit.
10. In this connection the language of R. 4 of the Order is somewhat significant wherein it is provided that no cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immoveable property, except claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof. I need not refer to the other parts of the rule as they are not relevant at present. This rule presupposes that ordinarily a claim for mesne profits could not be joined with a suit for the recovery of immoveable property, but for the provision made therein. It has been held in various cases that the cause of action to recover mesne profits which arises after the institution of the suit may not be identical with the cause of action which relates to the recovery of possession of the property.
11. I would like in this connection to refer to two decisions; one in Ram Karan Singh v. Nakchhed Ahir, ILR 53 All 951 : (AIR 1931 All 429) (SB) (C), which is a Full Bench judgment. In that case the claim for recovery of mesne profits up to the date of the suit had been decreed earlier. Mesne profits pendente lite in future were neither claimed nor refused in that suit. After obtaining possession the plaintiff brought a second suit for recovery of mesne profits from the date of institution of the first suit up to the date of delivery of possession. It was held that the second suit was maintainable and was not barred by O. 2, R. 2 of the CPC. Their Lordships observed that the cause of action for recovery of possession was not necessarily identical with the cause of action for recovery of mesne profits; that the provisions of O. 2, R. 4 of the CPC recognized this distinction and indicate that the legislature thought it necessary to provide specially for joining the two causes of action in the same suit and that but for such an express provision a combination of that kind might well have been disallowed.
12. The object of O. 2 R. 2 is undoubtedly to prevent a splitting up of the same cause of action; but its object is not to compel the plaintiff to seek in one and the same suit all the remedies to which he may be entitled against the same defendants on account of several causes of action. It is, therefore, clear from this decision that a claim for pendente lite mesne profits would I not be hit by O. 2, R. 2 of the CPC. Another decision which I would like to discuss in this context is a decision of Venkataramana Rao, J., sitting singly in Tadepalli Ramiah v. Madale Thathiah, AIR 1937 Mad. 849 (D). This decision is of some importance because it has elaborately considered a judgment of the Privy Council in Naba Kumar Hazara v. Radhashyam Mahish, AIR 1931 P.C 229 (E) on which great reliance was placed in support of the contrary view.
13. The learned Judge after careful consideration of the various decisions bearing on the point, one of them being the Allahabad Full Bench decision to which I have already referred and several other decisions of other Courts held that the Privy Council decision was no authority for the proposition that a claim for pendente lite mesne profits would be necessarily barred under Order 2 rule 2 of the CPC. The learned Judge held that the claim for mesne profits accruing subsequent to the institution of the suit for recovery of possession, constituted a separate cause of action and did not arise out of the same cause of action on which the claim for possession was founded. He drew the distinction that in a claim for possession it was the specific restitution of the property that was sought, but in an action for mesne profits the claim was for all loss suffered during the period of dispossession.
14. I confess I have some difficulty in adopting a distinction of this kind, because if cause of action connotes the entire bundle of facts which entitle a person to certain reliefs then it seems to me somewhat incomprehensible that this relief of mesne profits would not also arise out of the same bundle of facts, namely, the dispossession of the plaintiff from the property in question & the enjoyment of the usufruct thereof by the defendant until possession is restored. I am, however, impressed by the fact that in the Code itself some distinction appears to have been made between the two causes of action, one relating to recovery of property and the other relating to recovery of mesne profits on the language of rule 4 of Order 2 itself. On the whole having examined the Privy Council decision for myself I am inclined to agree that it does not directly support the proposition that a claim for mesne profits accruing after the institution of the suit will be hit by the provisions of Order 2 rule 2 of the CPC, if not made earlier.
15. This line of reasoning finds support also, as I have said, from the decisions of various other Courts and a recent decision of the Orissa High Court in Mukunda Pradhan v. Krupasindhu Panda, AIR 1954 Orissa 202 (F) by Panigrahi, C.J, illustrates, the same view. Therefore, I adopt the view that the claim for mesne profits in the present case is not barred by Rule 2 of Order 2 of the CPC, and the plaintiff is entitled to compensation of mesne profits for the period in claim. As to the quantum of compensation to be assessed in the present case, it will have to depend upon the evidence given on the point and investigation of the matter as provided by Order 20 rule 12 of the CPC.
16. In the circumstances therefore, the appeal must be allowed. The decree of the learned Subordinate Judge must be set aside and a preliminary decree should be passed in favour of the plaintiff directing partition of the lands in suit to the extent of the interest claimed by him, namely, the share which he purchased from Mst. Rampuria Debya, and also for compensation for the period in question which is to be ascertained before a final decree is passed in the suit. The plaintiff is entitled to the costs of this appeal and those of the Court of first instance.
17. Ram Labhaya, J.:— I agree. But I wish to add a few words in regard to the contention raised on the strength of the provisions contained in Order 2 rule 2 of the CPC. Mr. Bhattacharjee has argued that the claim for mesne profits to the extent that it relates to the period that elapsed before the decree passed by this Court in the previous suit is hit by the provisions of Order 2 rule 2 of the CPC. I feel that Order 2 rule 2 has no application to this part of the claim. Order 2, R. 2 provides that (1) every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the 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; (2) where a plaintiff omits to sue in respect of, Page: 70or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
18. The argument as I understand is that claim for mesne profits which fell due during the pendency of the previous suit should be regarded as abandoned or relinquished relief under Rule 2 of Order 2. The expression “mesne profits” has been defined in the Code of Civil Procedure and according to this definition mesne profits are profits which a person in wrongful possession of 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. The emphasis of the definition is that the defendant from whom mense profits are claimed should be a person in wrongful possession of the property and further that he should have actually received or could with ordinary diligence have received the profits claimed.
19. Where possession cannot be said to be wrongful or where no profits could have been received, a claim for mesne profits could not be made. In any case the definition covers profits for the period for which the defendant has been in wrongful possession before the claim is made. On the date the previous suit was instituted the plaintiff asserted that defendant was in wrongful possession. This wrongful possession continued upto the date of the institution of the suit. On that date the plaintiff could not state that defendant would continue in wrongful possession till the termination of the litigation; nor could he state what profits would or could be received in the future. Besides only relief which flowed from the cause of action which had arisen could be claimed.
20. The cause of action for a claim for future mesne profits could not be said to have arisen on the date of the previous suit. It is for this reason that the plaintiff is under no obligation to claim future mesne profits, nor can future mesne profits be allowed merely on the analogy of future interest without an enquiry into the question of continuance of illegal possession and ascertainment of the quantum of actual profits received or which could have been received with due diligence. The claim in a suit for mesne profits alone or even in a suit for possession and mesne profits has to rest on previous wrongful possession and receipt of profits.
21. These are questions of fact and can be determined only on evidence. Order 2, rule 2 therefore creates no bar against a claim for mesne profits which may have fallen due during the pendency of a previous suit. The cause of action for a claim for mesne profits would justify a claim only for the period antecedent to the suit. This view receives support from AIR 1931 All 429 (C), a Special Bench decision of the Allahabad High Court. Maksudan Singh v. Darbargir, AIR 1929 Nag 65 (G) Jaikishen Das v. Pashori Lal, AIR 1932 Lah 448 (H) and other decisions to which reference has been made by my Lord the Chief Justice in his judgment.
22. The decision in AIR 1931 PC 229 (E) does not in my humble judgment create any difficulty. It is distinguishable. In this case the plaintiff-respondents whose claim was found to be barred by their Lordships of the Privy Council, had in the previous suit claimed a conveyance of the decree and the property sold under it with necessary accounts. The decree in the case was for possession only. Their Lordships found that the claim for accounts arose out of the same cause of action from which the claim for possession arose and therefore if the claim was not made or was not pressed, it was an abandoned claim to which the provisions of O. 2, R. 2 applied. There was no claim for mesne profits in that case and their Lordships had no occasion to pronounce on the question whether claim for future mesne profits if not made in a suit would be barred under O. 2, R. 2 or a fresh suit in respect of them would be barred. Provisions bearing on the claim relating to mesne profits were not referred to.
23. If cause of action for a suit for accounts arose before the institution of the previous suit, a second suit for the same relief may well be barred. The principle of the decision may not extend to claims for mesne profits which received by a defendant after the institution of the previous suit. In AIR 1937 Mad 849 (D), this decision was considered and it was held that the claim for mesne profits accruing subsequent to the institution of the suit for possession rests on a separate cause of action. The Privy Council decision was distinguished. My Lord the Chief Justice has come to the same conclusion, though he has expressed his view in his characteristically cautious way. In a suit for recovery of possession of immoveable property and for rent or mesne profits, the Court has been invested with authority by O. 20, R. 12(1)(c) to direct an enquiry as to rent and mesne profits from the institution of the suit onwards for periods specified in the rule. The Court has the discretion to direct an enquiry into future mesne profits. It is under no obligation to do so. The provision is enabling. The direction for ascertainment of profits may be made in order to avoid multiplicity of suits. But the rule is not mandatory. It is merely directory.
24. It does not involve any compulsion for the plaintiff to claim future mesne profits, and therefore even failure or omission on the part of the Court to exercise the discretion with which it is vested, in favour of the plaintiff in the previous suit would not create any bar either under O. 2, R. 2 or under Section 11 of the CPC against a claim for mesne profits which were received after the institution of the previous suit as held in Kalidas Rakshit… v. Keshablal Majumdar…., AIR 1931 Cal 788 (I) and AIR 1931 All 429 (C). In the last mentioned case the effect of the provisions contained in O. 20, R. 12(1)(c) was fully considered.
25. Appeal allowed.