Allsop and Verma, JJ.:— This is a plaintiff's appeal and arises out of a suit for possession of certain buildings, one of which is described as house No. 74 and the rest as shops bearing various numbers. They are all situated in the town of Konch, district Jalaun. There were also claims for the recovery of certain sums of money on account of mesne profits and damages. The court below passed a decree for possession, but only partially decreed the claims in respect of mesne profits and damages. The present appeal is concerned with those portions of the claims for mesne profits and damages which have been dismissed.

One Ram Lal was the owner of the property in suit. On his dying childless, his widow, Mst. Rani Dulhin, succeeded to the property for a Hindu widow's estate. A man called Balkishen, who was the predecessor in title of defendants 1 to 7, had a decree against one Genda Lal. In execution of that decree Balkishen had the property now in suit attached. Mst. Rani Dulhin objected to the attachment on the ground that the property belonged to her and not to Genda Lal. The execution court disallowed Mst. Rani Dulhin's claim and maintained the attachment. Mst. Rani Dulhin thereupon instituted a suit under order XXI, rule 63 of the Code of Civil Procedure. This suit was dismissed by the court of first instance on the 25th of October, 1920. Mst. Rani Dulhin filed an appeal in this Court against that decree. She died during the pendency of that appeal. Thereupon, Ram Charan, who is the plaintiff in the present suit, made an application in this Court praying that he might be permitted to continue the appeal which had been filed by Mst. Rani Dulhin and that his name might be brought on the record in Mst. Rani Dulhin's place. The application was based on the ground that the applicant Ram Charan was a reversioner of Mst. Rani Dulhin's husband Ram Lal. That application was granted by this Court and Ram Charan was substituted for Mst. Rani Dulhin as appellant and was permitted to continue the appeal. On the 28th of May, 1924, this Court allowed that appeal and, setting aside the decree of the trial court, passed a decree declaring that the property in question formed part of Ram Lal's estate and did not belongs to the judgment-debtor, Genda Lal, and that it was consequently not attachable and saleable in execution of Balkishen's decree against Genda Lal. In the meantime, however, the property had been put to sale at the instance of the decree-holder, Balkishen, in various lots on the 31st of March and the 30th of May, 1921. House No. 74 was purchased by the decree-holder, Balkishen, himself of the shops, four were purchased by Sadhu Ram who is defendant No. 8 in the present action, and three were purchased by Kalka Prasad Tiwari who is defendant No. 9.

After the decision of this Court allowing the appeal and decreeing the suit filed under order XXI, rule 63, Ram Charan filed an application for restitution of the property under section 144 of the Code of Civil Procedure. That application was dismissed by the Subordinate Judge on the 14th of June, 1927, and an appeal to this Court against the decision of the Subordinate Judge was unsuccessful. The judgment of this Court was pronounced on the 19th of January, 1932, and it was pointed out that Ram Charan had misconceived his remedy in that an application for restitution did not be under the law, but a suit for recovery of possession should be brought. Ram Charan, thereupon, on the 15th of July, 1932, instituted the suit giving rise to this appeal asking for the reliefs indicated above. Balkishen, the decree-holder purchaser of house No. 74, having died, defendants 1 to 7 were impleaded as his successors in interest, and the two purchasers of the shops were made defendants 8 and 9, as already stated. The suit having resulted in a partial dismissal by the court below of the plaintiff's claims is respect of mesne profits and damages, the plaintiff preferred this appeal. The decree for possession over the property is no longer in controversy.

A pedigree is given in the plaint, and according to that pedigree the plaintiff Ram Charan was not the sole reversioner of Ram Lal. There are two other persons, Hari Ram and Mata Din, who are reversioners of equal degree. In paragraph 3 of the plaint it was stated that Ram Charan alone was substituted for Mst. Rani Dulhin as appellant in the appeal in this Court because Hari Ram and Mata Din had “relinquished the right of heirship”; and that, according to Ram Charan, was apparently the reason for the application under section 144 and the present suit being filed by Ram Charan alone. A plea of non-joinder having been raised by defendants 1 to 7, who alone contested the suit, Ram Charan made an application that Hari Ram and Mata Din be impleaded as pro forma defendants, and that application having been granted, they were so added and became defendants 10 and 11. One of the issues raised was whether Ram Charan was entitled to a decree for possession over the entire property or only to the extent of his one-third share. A similar question was raised with regard to the claims for mesne profits and damages. The court below held that the defendants being trespassers, Ram Charan alone was entitled to eject them and to recover possession of the whole property. That matter, as already stated, is not before us and the decree for possession over the entire property has become final. With regard to the mesne profits and the damages, however, the court below held that Ram Charan could recover only one-third of such amounts as were proved. It may be mentioned that the allegation as to the relinquishment of their rights by Hari Ram and Mata Din does not appear to have been persisted in. In any event, the judgment of the court below proceeds on the footing that their Tights subsist and no contention has been raised before us with regard to it.

It is now necessary to give the details of the claims with which the appeal is concerned. It was claimed that the plaintiff was entitled, in respect of each set of the properties, to mesne profits from the date on which the auction sale took place to the date on which the present suit was instituted.

[Details of the amounts claimed by the plaintiff for mesne profits and for compensation for damages caused to the properties by the different purchasers, and of the amounts awarded by the lower court, were set forth.]

The first point raised by the learned counsel for the appellant is that the court below was wrong in holding that the plaintiff could recover mesne profits only for a period of three years before the institution of the suit. It has been argued that article 109 of the first schedule of the Limitation Act, which is the article applied by the court below, is not applicable. The plaintiff's argument in the court below was that the claim for mesne profits was governed by article 144. That argument has not, for obvious reasons, been repeated by learned counsel in this Court. But it has been strenuously urged that, although the plaintiff was not entitled to claim mesne profits for a period of eleven years next preceding the suit as set out in the plaint, he was entitled to recover for a period of six years before the suit because, learned counsel argues, there is no specific article in the Limitation Act which can be made applicable to such a claim and that therefore it must be governed by article 120. The argument is that the defendants having come into possession by virtue of purchases made at auction sales held under the orders of a court, they could not be held to have appropriated the profits “wrongfully” within the meaning of article 109 and that, therefore, the article was inapplicable, and, there being no other article which could be applied, the claim could come only under the residuary article 120. Reliance has been placed on Holloway v. Guneshwar Sing(1). With great respect to the learned Judges who decided that case, we would have found it difficult to follow it, even if it had not already come up for consideration in other cases. As matters stand, however, it is sufficient for us to refer to Saroj Ranjan Chowdhury v. Prem Chand Chowdhury(2), and to the decision of their Lordships of the Privy Council in Feroz Shah v. Mohammad Akbar Khan(3).

The next point urged by learned counsel for plaintiff appellant is that the court below was not justified in holding that the plaintiff was entitled only to his sharer namely one-third, of the sums for which the various defendants might be found liable on account of mesne profits and damages. The contention is that a decree should have been passed for the recovery of the whole amount found to be payable by the defendants. In our judgment this contention is well founded. Learned counsel for the defendants respondents agrees that where property is held in coparcenary or in co-ownership it is not necessary for all the co-parceners or co-owners to join in a suit for the ejectment of trespassers and that a decree for the recovery of possession of the entire property can be passed even when the suit is brought by only one of the several co-parceners or co-owners. The principle on which the rule is based may be thus stated. The right of each coparcener or co-owner extends to the whole property jointly with the others and the step taken to recover the property is for the obvious advantage of all the co-parceners or co-owners. It is hardly necessary to cite authorities on this point. We may, however, mention Syed Ahmad Sahib Shutari v. The Magnesite Syndicate, where some of the cases bearing on the subject are mentioned, and Sheotahal Dube v. Lal Narain Prasad Chand. We are unable to see any reason why one of several co-owners should not also be entitled to recover from the trespasser the whole of the profits which are payable by the trespasser on account of his wrongful possession, and the whole of the compensation payable on account of injury caused to the property. No valid reason has been shown for applying a different rule to a claim for mesne profits, or compensation, from that applied to a claim for possession. Learned counsel for the defendants respondents has, by way of analogy, referred to section 45 of the Indian Contract Act (IX of 1872). Our attention has also been drawn to the cases of Pyari Mohun Bose v. Kedarnath Roy and Shital Chandra Bairagi v. Manik Chandra Hazra(4). A claim for mesne profits against a trespasser stands on a basis essentially different from a claim founded on contract. It is, therefore, wholly unnecessary for us to deal with the section or the cases just mentioned. We may, however, mention that these cases do not support the arguments put forward on behalf of the defendants respondents. Learned counsel for plaintiff appellant has cited a decision of the Nagpur Chief Court in Nago v. Multanmal(5). We agree with that decision. Accordingly, we hold that the court below was wrong in coming to the conclusion that the plaintiff could be granted a decree for only one-third of the amounts proved on account of mesne profits and damages.

Learned counsel for plaintiff appellant has also questioned the correctness of the findings of the court below on the questions of fact, and has argued that the court below was wrong in holding that the plaintiff had failed to prove as against defendants 1 to that he was entitled to any damages on amount of injuries caused to the building and in holding that the rate of mesne profits recoverable from those defendants was proved to be only Rs. 50 per annum. It has also been argued that the mesne profits recoverable from defendant No. 8 should have been held to be Rs. 150 per annum, as claimed, and that the court below erred in fixing the mesne profits at Rs. 125 per annum. On an examination of the evidence, however, we have come to the conclusion that it is not possible to hold that the findings of the court below are wrong. The balance of evidence is clearly in favour of the conclusions reached by the court Below. Accordingly, we uphold the findings of fact recorded by the court below on the points mentioned above.

The last point which has arisen for consideration is one urged on behalf of the defendants respondents on the basis of a fact which has not yet been mentioned in this judgment. It appears that, some time after filing this appeal, the plaintiff appellant, Ram Charan, died. It further appears that he was survived by two daughters, Mst. Lachho and Mst. Man Kuer, who were his heirs under the Hindi law. Mst. Lachho alone applied to this Court for permission to continue the appeal filed by her father, Ram Charan, and for substitution of her name as plaintiff appellant in place of Ram Charan. This application was granted by an order passed by this Court on the 13th December, 1941. It has been urged by learned counsel for defendants respondents that the appeal must, in the circumstances just mentioned, be held to have abated to the extent of one half, that is, to the extent of the share of Mst. Man Kuer in the inheritance. Reliance has been placed on the case of Sherpal Singh v. Aijaz Fatima. We consider it sufficient for our present purpose to say that case is distinguishable on the ground that the death of the plaintiff in that litigation had taken place before the case had come up to this Court, and that the point raised and decided was that the decree of the lower appellate court was wrong inasmuch as it should have held that the suit had abated to a certain extent. The position in the case before us is different. Here the appellant died after filing the appeal in this Court and, by an order passed by this Court on the 13th of December, 1941, Mst. Lachho has been permitted to continue the appeal filed by Ram Charan and has been brought upon the record as a representative of Ram Charan, entitled to continue the appeal filed him. That must be held to be for the benefit of the entire inheritance which came into being on the death of Ram Charan. Reference may be made to the decisions in Muhammad Zafaryab Khan v. Abdul Razzaq Khan, Lilo Sonar v. Jhagru Sahu, Govindaswami v. Annamalai and Umrao Begum v. Rahmat Ilahi. We may also refer to our judgment in Muhammad Hammad v. Tej Narain Lal(6). The contention put forward on behalf of the defendants respondents cannot, therefore, be accepted.

The result is that the appeal must be allowed in part. Accordingly, we modify the decree of the court below and direct.… [An appropriate decree setting forth in detail the amounts recoverable from the several groups of defendants was passed.]