S.S.SANDHAWALIA, J.

1. The issue of law arising from virtually undisputed facts in this reference may well be formulated in the following terms:-

"Whether Or. 2, R. 2 of the Code of Civil Procedure, 1908 bars a suit for mesne profits filed subsequently to a suit for possession of the property because the claim for those accrued mesne profits had not been earlier included therein ?"

It suffices to advert to the relevant facts briefly. The subject-matter of the dispute is the urban property situated at Circular Road, Ambala City. In January, 1966. Pritam Singh respondent alone brought a suit for possession of the above-said property alleging inter alia that the defendants were in wrongful and unauthorised occupation thereof from the 14th of June, 1965. In this suit he did not include any claim for mesne profits which had accrued till the date of the filing of the same. That suit is still pending decision. Later in 1968 Pritam Singh respondent along with his sister Smt. Surjit Kaur respondent together brought the present suit (from which this regular second appeal arises) for the recovery of Rs. 3,200.00 as mesne profits or in the alternative as ages for illegal use and occupation of the property above-mentioned from the original date of its unauthorised occupation.

2. Apart from the other grounds the defendants resisted the second suit on two preliminary objections regarding which the trial Court struck the following two issues:-

1. Whether the trial of the suit cannot be proceeded with in view of the provisions of Sec. 10, Civil Procedure Code ?

2. Whether the suit is barred under Or. 2, R. 2 of the Code of Civil Procedure as alleged in para. 2 of the preliminary objections in the written statement ?

Both the above-said issues were decided against the plaintiffs resulting in the dismissal of the suit. On appeal the learned Additional District Judge, Ambala, upheld the finding of the trial Court on issue. No. 1, but on issue No. 2 he reversed the finding of the trial Court by holding that the suit was maintainable and not barred by the provisions of Or. 2, R. 2 of the Code of Civil Procedure. The defendant-appellants in the Present second appeal challenge the decision of the learned Judge on issue No. 2 quoted above.

3. As is manifest the point at issue is one of pure law, and to be candid it is indeed not free from difficulty. My learned brother Gujral, J. in his lucid order of reference to the larger Bench has noticed the head-on clash of some of the authorities and in the course of argument many more were cited before us at the bar. I, therefore, deem it apt to examine the matter in its historical background and then on principle before adverting to the plethora of precedents on this point.

4. As to the sources of the law and their history it is indeed possible to go back for more than a century in this context. There is no manner of doubt that the earliest Indian Civil Procedure Code were modelled on the language and patterned to follow the principles and procedures of the then existing English law. At common law claims for ejectment and for mesne profits were always treated as separate causes of action so much so that an action for mesne profits did not even lie until judgment had been recovered in ejectment. It was only after the enactment of the Common Law Procedure Act, 1852 that the two actions were even enable to be joined. Adopting the abovesaid rule the Indian Code of Civil Procedure. 1859 expressly provided that a claim for recovery of land and a claim for mesne profits arising out of such land should be deemed to be distinct causes of action. Indeed the relevant Sec. 10 thereof may usefully be quoted verbatim-

"10. A claim for the recovery of land and a claim for the mesne profits of such land shall be deemed to be distinct causes of action within the meaning of the two last preceding sections."

Subsequently in England the Judicature Act and the Rules of practice framed thereunder came into force. Therefore