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1927 Supreme(Nagpur) 175
HIGH COURT OF NAGPUR
Findlay
BUDHILAL – Appellant
Versus
MOKHAMCHAND AND ANR – Respondent
Decided on : 24-08-1927
The court established the liability of the appellant for mesne profits and applied the relevant limitation period under the Limitation Act.
Headnote:
Limitation Act - Co-ownership - Mesne Profits
Fact of the Case:
The appellant prevented his co-tenants from obtaining profits from the field and took possession of the whole field as his own.
Finding of the Court:
The appellant was held liable to account for the mesne profits, and the limitation period under Article 120 of the Limitation Act was found to be applicable.
Issues: Contentions regarding the limitation period and the previous suit for partition were raised by the appellant.
Ratio Decidendi: The court relied on the principle established in previous cases and found that the appellant's actions warranted the application of Article 120 of the Limitation Act. The court also determined that there was no bar to the present suit being brought in its current form.
Final Decision: The appeal was dismissed without notice to the respondents.
Findlay, J C—The facts of this case are sufficiently clear from the two lower Court's judgments. Even accepting the findings of fact arrived at by the lower appellate Court, two contentions have been urged on behalf of the appellant Budhilal. The first of these is that, as the possession of the appellant was not permissive and was not on behalf of his co-owners, the limitation applicable to the case was to be found in Article 109 and not in Article 120, Limitation Act.
2. For my own part, it seems to me perfectly clear that in the present case the appellant prevented his co-tenants from obtaining from the field such profits as it was capable of yielding and took possession of the whole field as his own. This being so, on the principle laid down by Mookerjee, J., in Mohesh Narain v. Nowbat Patkak,1905 32 ILR(Cal) 837, I am of opinion that the appellant was liable to account for the mesne profits in question, and the decision in Yerulwla v. Yerukola, 1922 AIR(Mad) 150, with which I respectfully agree, is ample authority for the view that Article 120 is applicable.
3. The second point urged is that, in view of the previous suit for partition it was not open1 to the plaintiffs-respondents to bring the present suit with respect of the profits of only a portion of the family property. I am at a loss to understand what Applicability Order 9, Rule 9; Civil P.C., has to the present case, as urged in ground 4 of appeal. The cause of action for the, present suit had not, arisen when the previous partition suit was filed. I know of no bar to the present suit being brought in the form it is.
4. These findings, govern the appeal which is dismissed Without notice to the respondents.
Final Result : Dismissed
