Present: Pereira J.

CATHRINA et al. v. ALLIS et al.

Action rei vindicatio-Prospective mesne profits claimed-Claim disallowed-Subsequent action does not lie-Res judicata-Civil Procedure Code, s. 196.

Where in an action rei vindicatio prospective mesne profits are claimed by the plaintiff, and the claim is disallowed, the order, in spite of the provision of section 196 of the Civil Procedure Code, operates as res judicata between the parties, and no fresh action can be brought for the recovery of the same mesne profits. Section 196 does not vest in the Court a discretion as to allowing or disallowing future mesne profits, but the discretion vested is merely a discretion an to assessing beforehand the anticipated loss, and giving judgment accordingly.

THE facts appear from the judgment.

H. A. Jayewardene and Arulanandam, for plaintiffs, appellants.

A St. V. Jayewardene, for respondents.

July 1, 1913. Pereira J.-

The plaintiffs, claiming a certain share of the land called Leanaduragewatta, complain that the defendants are in unlawful possession of the share, and pray that they be condemned to pay the plaintiffs damage at Rs. 150 a year from January 25, 1912, until the plaintiffs are restored to possession. The defendants-deny the possession complained of. The main issue framed is. whether the defendants prevented the plaintiffs from taking the produce of their share of the land. On the evidence led the Commissioner has decided this issue against the plaintiffs, and dismissed their claim. In this appeal it is not open to the plaintiffs-to contest the Commissioner's finding on the facts, as no question of title to immovable property is involved in the case. But it appears that some at least of the plaintiffs had brought action No. 6,793 of the Court of Bequests of Galle against these defendant* to be declared entitled to the share of land that they claim in this case; and in that case, although they claimed mesne profits as well until they regained possession, they were not allowed their prayer, and it is now argued by the defendants that the judgment in that case is res judicata in respect of the plaintiffs present claim for damage. It is indeed unnecessary to go into this question in view of the Commissioner's decision on the facts, but as the question was

argued at some length, I shall express my own view of it. The argument is that mesne profits are allowed by our Courts under section 196 of the Civil Procedure Code, and as that section vests a discretion in the Court on the question of allowing mesne profits, the express or tacit disallowance by the Court of mesne profits accruing after action does not bar a second action there for. In support of this contention decisions of some of the Indian Courts were cited. In Mon Mohan Sirkar v. The Secretary of State for India 1 it was held that in a suit for recovery of possession and mesne profits the Court had power under section 211 of the Civil Procedure Code (same as section 196 of the Ceylon Code) to award mesne profits either up to the date of the institution of the suit or up to the date of delivery of possession, and that when a decree for possession was silent as regards mesne profits which had accrued between the date of the institution of the suit and delivery of possession, a separate suit would lie for such subsequent mesne profits. Ameer Ali J., in the course of his judgment, observed: "It does not follow that because plaintiff prayed for assessment of damages until he was restored to his property, and the Court in its discretion was satisfied with decreeing his claim for damages so far as they had accrued due, his claim for damages far trespass continued after suit would be barred by the rule of res judicata. " In Kuppasamy Aiyer v. Venkataramier2 it was held that the granting of future mesne profits which the Court had a discretion in any event either to make or to refuse was