Indian Kanoon - Search engine for Indian Law

6. He further points out that:

The action would not lie until after the plaintiff had re-entered and recovered the possession of the land. This re-entry might be by his own act, or it might be by way of judgment in ejectment and execution issued thereon. But one mode or the other was an essential condition precedent to the action.

7. Of course, the rigour of the common law was modified, by the Common Law Procedure Act and the rules of the Supreme Court, whereby a claim for mesne profits has been permitted to be combined in an action for ejectment but still the principle holds good that an action for mesne profits will not lie without an action of ejectment and before the recovery of the land. Whatever might have been the opinion of the High Courts in regard to the claim for past profits, so far as the claim for profits subsequent to the institution of the suit is concerned, there was never any doubt and almost all the High Courts have taken the view that it does not arise out of the same cause of action as a claim for possession. In the Full Bench decision in Doraisami Aiyar v. Subramania Aiyar (1917) 33 M.L.J. 699 : I.L.R. 41 Mad. 188 (F.B.) where a person claimed past profits, that is, profits prior to the institution of the suit and future mesne profits, that is, profits subsequent to the institution of the suit, and the decree was silent as regards the future mesne profits, a second suit was held to lie in regard thereto. Since the decision of the Privy Council in Naba Kumar Hazra v. Radhashyam Mahis (1931) 61 M.L.J. 294 (P.C.) the same view has been taken in most of the High Courts, namely, even though a prior suit had been instituted for possession, a second suit for mesne profits accrued since the institution of suit would lie. Vide (1) In re Kantheeswaram Ekanathalingaswami Koil through its trustee M. Vedanayagam Pillai (1936) 71 M.L.J. 677 at 681, (2) Rama Kallappa v. Saidappa Sidrama (1934) I.L.R. 59 Bom. 454 and (3) Ram Karan Singh v. Nakchhed Ahir (1931) I.L.R. 53 All. 951 (F.B.). In the Allahabad case Sir Sulaiman, C.J., clearly explains the nature of the action and why Order 2, Rule 2, Civil Procedure Code, will not apply. He observes thus at page 957: