Calcutta High Court
Gokul Chandra Seal vs Atlas And Union Jute Press Co. Ltd. on 13 March, 1986
Equivalent citations: AIR1986CAL393, 90CWN873, AIR 1986 CALCUTTA 393, (1986) 90 CAL WN 873
JUDGMENT A.M. Bhattacharjee, J.
1. The facts in the suit for partition, recovery of possession and mesne profits, which has given rise to these two appeals, are long and complicated. But the question involved in these two appeals arising from the decree of mesne profits passed in the suit is a short one and does not necessitate the narration of those facts.
2. As is obvious from the definition of "mesne profits" in Section 2(12) of the Civil P. C. and also the provisions relating thereto in Order 20, Rule 12 of the Code, a decree for mesne profits can be passed for the profits which the person in wrongful possession actually received or might with ordinary diligence have received together with interest thereon. The liability to pay mesne profits would, therefore, be obviously confined to the period during which the person to be charged therefor was in wrongful possession. The moment the possession ceases, whether by delivery of possession or by relinquishment, the liability to pay mesne profits also ceases, as indicated in Clause (c) of Rule 12 of Order 20. But if in any given case, the possession of the judgment-debtor, which was wrongful at certain stage, ceases to be wrongful, would his liability to pay mesne profits still continue thereafter until delivery of possession to the decree-holder or relinquishment of possession by him with notice to the decree-holder, as indicated in Order 20. Rule 12(c)? In other words, if the possession of the judgment-debtor, which was wrongful, changes its colour and quality and ceases to be wrongful, would he still be liable to pay mesne profits for the period thereafter. That is the short question that has fallen for our consideration in these appeals.
3. When the suit, giving rise to these appeals, was decreed in preliminary form, the learned Judge, while granting the preliminary decree, directed inter alia as hereunder : --
"The plaintiff would also be entitled to possession of his half share on partition on eviction of the defendant therefrom. An enquiry be made for determination of the mesne profits in respect of the plaintiffs half share from the date of the expiry of the lease till recovery of possession."
4. In appeal to this Court by the defendant against the preliminary decree, being F. A. No. 554 of 1965, it was urged that the plaintiff and the defendant being co-sharers, the possession of one was to be treated as possession of the other as well and as such the Court below was wrong in passing a decree for mesne profits. It was, however, pointed out by this Court that even though the defendant was a co-sharer he was nevertheless possessing the entire joint property on some lease and that after the expiry of the lease, the defendant was still claiming possession of and possessing the entire joint land in dispute as such lessee and not as a co-sharer. This Court held that the defendant, though otherwise a co-sharer, was accordingly liable to pay mesne profits for the period from the expiry of the lease and this Court, therefore, by its judgment dated 13-7-71/16-8-71 confirmed the preliminary decree for mesne profits.
5. If the matters stood at that only, then under the decree of the learned trial Judge for mesne profits "from the date of expiry of the lease till recovery of possession" which was also confirmed by this Court, the plaintiff would have been entitled to mesne profits for the entire period till such recovery of possession. But when the matter came back to the Court below, the Court while determining the quantum of mesne profits took notice of the fact that in the suit, even before the preliminary decree was passed, a Receiver was appointed though it was the defendant who was appointed as the Receiver, and the Court below thought that in view of having been appointed such a Receiver the defendant could no longer be liable to pay mesne profits after such appointment, even though the defendant itself was the Receiver. If this is the right view, the plaintiffs appeal shall fail. We have no doubt that the Court below was right.
5A. Against this, the plaintiff has filed F. A. No. 237, while the defendant has filed appeal being F. A. No. 238 against the decree of mesne profits even for the period up to its being appointed as the Receiver. As we have noted at the outset, wrongful possession is the sine qua non, the very essence and the sole foundation for a claim for mesne profits and a judgment-debtor can never be saddled with the liability for mesne profits unless his possession is wrongful in law. Mr. Dasgupta, the learned Advocate for the judgment-debtor has drawn our attention to an old Bench Decision of this Court in Indurjeet Singh v. Baboo Radhey Singh, ((1874) 21 Suth WR 269 at p. 270) where Phear, J. observed that "generally from the nature of claim to mesne profits, mesne profits ought not to be estimated for any period during which the defendant who is to be made responsible for them was not active in keeping the plaintiff out of possession". These observations have been quoted with approval in a later Bench Decision of this Court in Chhaganmull Agarwalla v. Amanatulla, ((1924) 39 Cal LJ 447 at p. 450): (AIR 1924 Cal 1010 at pp. 1011, 1012) to which also our attention has been drawn by Mr. Dasgupta. In this case, since the date of the defendant being appointed as a Receiver by the Court it was the Court through the defendant as its officer, and not the defendant itself, who kept the plaintiff out of possession.
6. Sir John Woodroffe observed in his Tagore Law Lectures on Receiver (1964 Ed., page 7) that "the possession of a Receiver appointed by the Court during the pendency of a suit should be regarded as possession for the party who might ultimately turn out to be the true owner and entitled to possession as such". In that view of the matter, the possession of the defendant, after he was appointed as the Receiver, is to be regarded as the possession of the plaintiff in whose favour of original suit has finally been decreed. The true position is that so long the lis continues, the possession of a receiver appointed by the Court is the possession of the Court, property in the possession of the receiver is in custodia legis, but at the determination of the lis his earlier possession even during the lis would, in law, amount to possession for the party entitled to own and possess the property under the decree in the lis. And his position in law remains the same even when a party to the lis is appointed as the Receiver. In this case, therefore, even though the possession of the defendant was proved to be wrongful during certain period, the quality and the colour of its possession immediately changed with its appointment as a Receiver and its possession, even though wrongful, ceased to be wrongful from the time of such appointment and its liability to pay mesne profits for any period thereafter automatically ceased.
7. Mr. Mitter, the learned Advocate appearing for the plaintiff has not disputed this position in law. But he has, however, urged that even though the defendant was appointed the Receiver even before the preliminary decree, mesne profits have been expressly decreed for the entire period commencing from the expiry of the lease till recovery of possession. And such decree having been confirmed by this Court on appeal, such determination would operate as res judicata and is no longer liable to be opened at this or at any other later stage. That the determination at an anterior stage of a lis might operate as res judicata, actual or constructive, at a later stage of the same, is settled beyond doubt and the decision of the Supreme Court in Sathyadhyan Ghosal v. Deorajin Debi, referred to by Mr. Mitter is a clear authority for the proposition. But as pointed out by the Supreme Court in Chittoori Subbanna v. Kudappa Subbanna, , the direction in a preliminary decree about the enquiry with respect to future mesne profits does not amount to an adjudication and certainly does not amount to an adjudication of any controversy between the parties in the suit to operate as res judicata. As observed by the Supreme Court "the Court does not decide, when making such a direction, the period for which the decree-holder would be entitled to get mesne profits.......... The mere fact that the direction for an enquiry into mesne profits is contained in a preliminary decree does not make it such a part of the decree against which alone appeal could have been filed. The appeal could be filed only after a final decree is passed decreeing certain amount for mesne profits to the decree-holder. It follows that the question about the proper period for which mesne profits was to be decreed really comes up for decision at the time of passing the final decree.........." The Supreme Court has concluded that "the direction in the preliminary decree cannot operate in terms of Section 11, C. P. Code or on general principles, as res judicata for the simple reason..........
that the direction is not based on the decision of any matter in controversy between the parties and is given in the exercise of the powers vested in the Court under Order 20, Rule 12(1)(c)."
8. But even assuming it was res judicata, what res judicata prevents is the re-determination of the issue already heard and finally decided but not the determination of the scope and purport of such prior determination. Assuming that the preliminary decree in so far it decreed mesne profits "till the recovery of possession" is now res judicata, there is nothing to prevent the Court to determine the scope of the expression "till the recovery of possession" and that is all that the trial Court has done in this case while passing the final decree for mesne profits. As we have already indicated hereinbefore while referring to Woodroofe's Tagore Law Lectures, the possession of the receiver pendente lite becomes the possession of the party who ultimately succeeds in the suit and is declared to be entitled to possess the property. The plaintiff in this case having been declared to be entitled to possession, the Receiver would now be deemed to have held the property for and on behalf of the plaintiff from the date he was so appointed and "the recovery of possession" of the property shall be deemed to have been effected with effect from such date. The moment the receiver takes possession of a property from the possession of a wrongful possessor, possession from such wrongful possessor automatically stands recovered. The learned Judge, therefore, was right in his appreciation and construction of the earlier preliminary decree, affirmed by this Court, directing grant of mesne profits "till the recovery of possession" and rightly held that the expression would only cover the period till the defendant was appointed the receiver. As such receiver, the defendant would obviously have to submit accounts in the Court as its officer for the period of its possession as receiver and if the plaintiff has any grievance for anything done or not done by the receiver during that period, other remedies therefor would be open to him. Wrongful possession being the foundation of the claim for mesne profits, such a claim against the receiver appointed by the Court would be a contradiction in terms. We are accordingly of opinion that the learned Judge was right in granting mesne profits only up to the period ending with the appointment of the Receiver and we, therefore, dismissed F. A. No. 237 preferred by the plaintiff.
9. As already noted, F. A. No. 238 has been preferred by the defendant against the amount of mesne profits granted by the trial Judge and the same not having been pressed at the time of hearing is also dismissed. Both the appeals being F.A. No. 237 and No. 238 thus stand dismissed, but without any order as to costs.
Sukumar Chakravarty, J.
10. I agree.