1. In this second appeal, the question which arises for decision is whether the plaintiff, who is the respondent, was rightly awarded mesne profits for a period of thirteen years preceding April 21, 1953 on which date he got possession of the properties belonging to him.

2. The brief history of this case is as hereunder: One Khupsa and his brother Abasaheb were the owners of properties of which they were tenants-in-common. They were members of a Mohammadan 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 partition of her share of the property against the defendant who had purchased Abasaheb's share in the property.

3. On July 29, 1930, a decree was made in favour of Jainama for partition and possession of her 7/36 share. Jainama died during the pendency of the further proceedings and in the year 1936 the plaintiff, who is the son of Abasaheb, was brought on record as the legal representative of Jainama. On January 20, 1937 the decree made in favour of Jainama was confirmed by the High Court of Bombay.

4. On September 12, 1940, the plaintiff who brought himself on record as the legal representative as Jainama, made an application for the ascertainment of mesne 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 mesne profits payable to the plaintiff at Rs. 750/-. Those were the mesne profits payable till the year 1940.

5. From that 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 for 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.

6. It was thereafter, on April 21, 1953 that the plaintiff was able to obtain possession of the 7/36 share in the property to which he had become Page: 15entitled. After obtaining such possession he brought the suit out of which the second appeal arises for the recovery of mesne profits from the defendant. That suit was instituted on July 8, 1953. In that suit, he claimed mesne profits for a period of thirteen years preceding the suit.

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

8. 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 mesne 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 mesne profits at that rate for all the thirteen years for which the claim had been made.

9. The aggrieved defendant in this Second Appeal contends that the fixation of mesne 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, that being so, the plaintiff was not entitled to mesne 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 mesne profits payable for each year, the Courts below came to a wrong conclusion.

10. 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 mesne profits in cases like the present one are not governed by 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.

11. Jainama, when she obtained a decree for partition of her 7/36 share in the year 1930, became a tenant-in-common with the defendant who had earlier purchased Abasaheb's share in the property. If the plaintiff's suit was for the recovery of mesne profits and he made that claim as the legal representative of Jainama it could not be said that his claim was for the recovery of profits wrongfully received by the defendant. That was the view taken by a Full Bench of the High Court of Madras in Yerukola v. Yerukola, ILR 45 Mad 648 : (AIR 1922 Mad 150). Kumaraswami Sastri, J. on 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 tenants-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…………..”

12. That view was followed by a Bench of the same Court in Naganna v. Venkatarayulu, AIR 1951 Mad 234. In that case, after the partition of joint family property, one of the two brothers forming the quondam joint family recovered from a third party, possession of certain lands which were accretions to the main laud comprising the erstwhile joint family estate. A suit was brought by the other brother for the recovery of a half share in the accretion and for an account of the amounts collected as mesne profits.

13. Their Lordships relying upon the earlier decision of the Full Bench of their Court, held that the two brothers were in the position of tenants-in-common in respect 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 of the Limitation Act.

14. 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.

15. 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 contended by Mr. Albal.

16. It was next urged by Mr. Albal that even so, the plaintiff was not entitled to mesne 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 120 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 mesne profits. I do not find it possible to uphold the contention of Mr. Albal that in every suit for mesne profits governed by Article 120 of the Limitation Act, the right to sue accrues at the end of each year for which the mesne profits are claimed.

17. 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 mesne profits would not accrue until a demand has been made by him and that demand has been refused by the defendant.

18. 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 theses works: ‘If Art. 120 be held applicable, the question will still arise as to 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 rather doubtful whether that question is referred to the Full Bench for decision, though I am inclined to construe the Order of Reference as intending so to do. However that may be, I think that, as the matter is before us, it is desirable that we should express our views upon it. The question turns on the words of Article 120: ‘Suit for which no period of limitation is provided elsewhere in this schedule, time from which period begins to run, when the right to sue accrues’. In my judgment and I have the support of the authority already referred to, Marian 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 mind that the period of limitation cannot 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.”

19. So tested, it does not appear to me that the cause of action in this case accrued to the plaintiff for the recovery of mesne profits payable during the disputed period of thirteen years, until the High Court of Bombay decided on July 18, 1952 that 5 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 entitled to recover mesne profits from the defendant in respect of the 7/36 share to which Jainama was entitled.

20. It would have been purposeless and indeed futile for the plaintiff, during the period between September 12, 1940 when he made the earlier application for the ascertainment of mesne 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 mesne profits of the subsequent period.

21. 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 of Bombay on the title which was the subject-matter of dispute between the parties. The suit which he brought on July 8, 1953 in the absence of any earlier demand 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.

22. If that is, as I understand, the correct position, limitation did not commence to run against the plaintiff in respect of his suit at any time before he brought the suit. The view taken by the lower appellate Court that the plaintiff was entitled to recover mesne profits for the entire period of thirteen years is, in my opinion, the correct view, although I am not prepared to rest my view on the grounds set out by the lower appellate Court in its judgment.

23. 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 Sec. 15 of the Limitation Act arrested the running of limitation.

24. Now, it is clear that Sec. 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 mesne 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, Sec. 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.

25. What I have stated so far should result in the dismissal of this appeal; but, Mr. Albal the learned Advocate for the defendant has urged before me that this is a case in which I should vary the rate at which the mesne profits have been awarded to the plaintiff. He has pointed out to me that in the earlier proceedings in which mesne profits were fixed for a period of three years till 1940, mesne 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.

26. The Court of first instance thought that the claim made by the plaintiff was not excessive. That view was upheld by the lower appellate Court and Mr. Albal urges that the lower appellate Court gave no intelligible reason whatsoever for coming to the conclusion that the mesne 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 mesne profits awarded for the earlier period.

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

28. On a careful consideration of the entire matter it appears to me that the plaintiff should be awarded a sum of Rs. 1,300/- in the aggregate as mesne profits payable to him for all the thirteen years at the rate of Rs. 100/- per annum on the average. That seems to me to be the most reasonable decree that could be made in this case and Page: 17that, is the only modification that I make in the decrees of the courts below. In other respects, this appeal stands dismissed. Since it is admitted by Mr. Jahagirdar, the learned Counsel for the plaintiff that the mesne profits awarded by the two Courts below to him have been paid up by 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.

29. 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 his own costs in all the three Courts and I order accordingly.

GE/C.

Decree accordingly.