The main legal point established in the judgment is that a claim for mesne profits need not be sued for in a suit for recovery of possession of the property in respect of which mesne profits are claimed by reason of Order 2, Rule 2, Civil Procedure Code.

Pandrang Row, J.

1. This is an appeal by defendants 1 and 3 to 6 from the decree of the Subordinate Judge of Cuddalore dated 11th October, 1937, in O.S. No. 4 of 1933, a suit to recover mesne profits for fasli 1333 in respect of certain properties together with interest thereon. There was an earlier suit between the parties which related to these very properties for cancelling a certain lease granted in respect of them by the plaintiffs great-grandmother (second defendant) on the 8th of. August, 1923, for three years in favour of the first defendant. The properties in question belonged to the plaintiff who was. then a minor under the testamentary guardianship of the second defendant, the great-grandmother who had been appointed to manage the properties by the will of the plaintiffs father, one Thangaswami, dated 6th July, 1915. The testator died a few days later and in the previous suit there was no dispute as to the genuineness of the will. That suit was decreed and the appeal from the decree of the first Court was dismissed by the High Court on 30th August, 1932. There was some attempt made to take the matter to the Privy Council but the idea was finally abandoned and the decree of the High Court which dismissed the appeal with costs was the final decision in that suit. The present suit was instituted on the 14th of October, 1932, that is to say, one and a half months after the High Court had decided the suit in favour of the plaintiff who claims to have attained majority, being till then a ward of the Court under the Guardian and Wards Act, only after attaining her 21st year which, according to her, was on the 15th October, 1929. The present suit was twits instituted just before the lapse of the period of three years after attaining majority. The suit has been decreed by the Subordinate Judge and the present appeal is, as stated already, by defendants 1 and 3 to 6.

2. As in the Court below, in this appeal also, a good deal of argument bras been directed to the point of the alleged bar imposed by Order 2, Rule 2, Civil Procedure Code, to the present suit,, the appellants contention being that the present claim for mesne profits for fasli 1333 should either have been included or had actually been included in the earlier suit inasmuch as it arose out of the same cause of action. This point has been discussed by the Court below somewhat briefly and rightly so because the point is really concluded by the Full Bench decision in Ponnammal v. Ramamirda Aiyar (1914) 28 M.L.J. 127 : I.L.R. 38 Mad. 829 , which has been subsequently followed in Khuddus v. Mohammad Hussain AIR1926Mad1015 and it may also be added that no other High Court has taken a different view, and on the other hand there are several decisions of other High Courts which take the same view, namely, that a claim for past mesne profits need not be sued for in a suit for recovery of possession of the property in respect of which mesne profits are claimed by reason of Order 2, Rule 2, Civil Procedure Code. The only important reason given to us by the learned advocate for the appellants for not accepting the view of the lower Court on this point which merely followed the Full Bench decision in Ponnammal V. Ramamirda Aiyar (1914) 28 M.L.J. 127 : I.L.R. 38 Mad. 829 is, that in view of certain observations and the decision in a later Privy Council case Naba Kumar Hazra v. Radhashyam Mahis (1931) 61 M.L.J. 294 , it must be held that the view taken by the Full Bench in Ponnammal v. Ramamirda Aiyar (1914) 28 M.L.J. 127 : I.L.R. 38 Mad. 829 is not correct. N6 doubt, it was also argued that as a matter of fact the claim to past mesne profits had been made in the earlier suit and therefore the present claim was not maintainable* There is, however, no substance in this contention. A perusal of the plaint in the former suit makes it perfectly clear that in so many words the past mesne profits due to the plaintiff in respect of the plaint properties was not included in the suit