Tiluck Chand Baboo v. Soudaminee Dassee

The facts in this case are sufficiently set forth in the judgment of the High Court (1), which is as follows:—

In this case the judgment of the Court below has proceeded upon an erroneous view of the law. The facts are these:—On the 12th of August 1868, the plaintiff purchased certain property at an execution sale, and obtained possession of it. The defendant had purchased the same property at another execution sale, three days before the plaintiff's purchase. In the year 1870, the defendant brought a suit against the plaintiff to recover possession and succeeded, the final decree in that case being pronounced in the High Court, on the 23rd of August 1872. He then, in 1873, brought a suit against the present plaintiff for mesne profits during the three years that she had been in possession, viz., from 1869 to 1872, and in that suit the defendant (the present plaintiff) set up a counter-claim by way of set-off for sums which she had paid for Government revenue during the time that she was in possession. Upon the strength of this set-off, the Court of First Instance not only dismissed the plaintiff's suit for mesne profits, but gave the defendant (the present plaintiff) a decree for Rs. 1,077-12-8, being the difference between the rents received, and the revenue paid, for the property during the three years. That decree was reversed by the High Court upon appeal, who held, (Justices Markby and Mitter), that although the defendant in that suit had a right, in answer to the claim for ??? profits, to show that the payments for revenue equalled or exceeded the amount of her collections, so that in fact she had made no profits at all, still she could only use those payments by way of deduction or allowance, and could not treat them as a set-off under section 195 of the Civil Procedure Code. In truth, the suit for mesne profits is a suit for damages, and the High Court held, that although the payments of revenue might be used to ??? those damages, they could not be treated as a substantive set-off.

The present plaintiff then brought the suit to recover the same ??? of Rs. 1,077-12-8, which she had failed to obtain by way of set-off in the former suit, and an additional sum of Rs. 457-0-12, ??? way of interest.

The issues fixed by the District Judge substantially raised two ??? questions: first, whether the plaintiff had a right to recover ??? and if so, what amount; and, secondly, whether the suit was ??? by limitation.

The Judge held that as the plaintiff, whilst in possession, was ??? to pay the revenue to protect the property from sale, the ??? thus paid by her must be considered as having been ??? for the benefit of the defendant, as soon as he established ??? right to the property, and that the plaintiff was, therefore, ??? in equity to recover those sums from him, less the ??? of any profits which the plaintiff might have received.

He further considered that those payments could not be said to ??? been made for the defendant's benefit, until he had recover ??? of the property, and that, therefore, the plaintiff's ??? of action did not arise till then; and he held, that the claim was not one for money paid by the plaintiff for the defendant's use, (in which case under article 59 of the Limitation Act, the suit ought to have been brought within three years), but that the suit was founded upon an equitable right, which the plaintiff had to be recouped the amount of revenue which she had paid for the defendant's benefit, under the impression that she herself was the true owner of the property, and that therefore the case came under article 118 of the Limitation Act, as being one for which no special period was elsewhere provided.

It is unnecessary for us to consider the point of limitation, as we think that upon the first and main question the decision of the District Judge is manifestly erroneous. He seems to have entirely lost sight of the fact, that the plaintiff, although she might have supposed that she was the lawful owner of the property, was really in the eye of the law a trespasser and wrongdoer in holding possession of it against the defendant, and that whatever sums she might have paid in respect of it, while she was thus in possession, were paid in her own wrong. She had no right, legally or equitably, to intermeddle with the property at all, and it is not because payments which she has made may have inured to the benefit of the rightful owner, that the latter is bound to recoup her for those payments. If A pays B's debts, supposing he has authority to do so, but in fact having no such authority, he cannot recover the amount against B's and if A innocently obtains possession of B's horse, and wrongfully holds possession of it, believing that he has a right to do so, he cannot claim from B the price of food or medicine which he may have supplied to the horse, although the horse would have died without such food or medicine, and B alone may have benefited by A's expenditure.

The right which a defendant has, who is sued for mesne profits, to deduct any necessary payments which he may have made from the amount of his receipts, depends upon a different principle which is explained in the case of Doe v. Hare, 2 C. & M., 145, cited in the notes to Lampleigh v. Braithwaite, 1 Smith's Leading Cases (7th edition), 171. In a suit for mesne profits, the plaintiff is only entitled to recover the actual loss which he has sustained by being kept out of possession, and therefore in ascertaining the amount of such loss, it is right to take into consideration the receipts on the one hand, and the necessary payments on the other. But it does not follow from this, that if a man has wrongfully taken possession of property, and held it adversely to the true owner, and has been a loser in consequence, he has right to recoup himself for his losses as against the true owner. He must be content in such case to bear the burthen of his own wrong.

The judgment of the Court below must, therefore, be reversed; the plaintiff's suit dismissed with costs in both Courts; and the defendant must be held free from the terms as to interest and otherwise, under which he was placed by the lower Court.