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1. This is a plaintiff's ap peal arising out of a suit for recovery of possession. This case has a long history behind it, which it is not necessary to recite at length. For the purpose of this appeal the facts may be briefly stated as follows:

Certain mortgagees brought a suit for sale against the original mortgagor and against one Mt. Sheo Lagna, an ostensible transferee of the property. When impleaded she stated to the Court that she was not the real owner, but that her sons were the real owners and they ought to be impleaded. The mortgagees for some reason not quite apparent resisted the attempt to bring the sons of Mt. Sheo Lagna on the record. They obtained a decree against the lady behind the back of her sons. They put to sale the right, title and interest of Mt. Sheo Lagna, and themselves purchased that right, title and interest at an auction sale. They then applied for possession which was formally granted to them in the year 1900. On the strength of this formal delivery of possession they succeeded in ousting the sons, who had not been made parties to the mortgage suit at all. In 1911 the sons instituted a suit to recover possession of the property on the ground that they were the real owners and that they had been wrongfully dispossessed. It is important to note that, in addition to the relief for possession the sons claimed not only past mesne profits but also pendente lite and future mesne profits. The first Court dismissed the suit, but the District Judge remanded it. This case came up in appeal to the High Court and it was finally decided between the parties that the former litigation did not operate as res judicata against the plaintiffs and the remand order was upheld, vide Mata Prasad v. Ram Charan Sahu [1914] 36 All. 446. On the 9th of July 1915 the trial Court decreed the plaintiffs' claim on payment of a certain sum. On appeal the District Judge upheld the conditional decree but reduced the amount. On the 20th July 1920 the High Court in second appeal held that the plaintiffs had been wrongfully dispossessed by the auction purchasers and were accordingly entitled to an unconditional decree for possession without payment of any amount whatsoever. The learned Counsel who appeared for the plaintiffs apparently did not bring to the notice of the High Court that the plaintiffs had in the plaint claimed mesne profits pendente lite and future. There was accordingly an omission to make any order as regards mesne profits which had accrued.

14. The claim to recover mesne profits is prima facie governed by Article 109 of the Limitation Act under which the period of three years begins to run from the date when the profits were received. The learned advocate for the appellants has to concede that if this article were to be applied the claim for profits prior to three years before the suit is barred by time. He has however tried to meet this difficulty in two ways, firstly by contending that the finding of limitation was suspended during the time when the previous litigation was pending, or at any rate from the date when the first Court passed a conditional decree till the date of the High Court's decree; and secondly that the cause of action for the present suit arose after the passing of the High Court's decree.

24. In the present case the plaintiffs had claimed pendente lite and future mesne profits in the former suit but none of the Courts passed a decree in their favour for that relief. They cannot invoke the principle of their Lordships' decision, nor can they urge that they ever obtained a decree which made it infructuous for them to institute a fresh suit.

25. The second way in which the learned advocate for the plaintiffs tried to meet the difficulty is by saying that the decision of the High Court has given the plaintiff a fresh cause of action. It is contended that so long as the conditional decree passed by the first Court remained unreversed the plaintiffs were unable to maintain a claim for mesne profits, and that it was only when the High Court held that the plaintiffs were entitled to an unconditional decree for possession that their right to claim mesne profits was established. It is urged that it would have been futile and useless for the plaintiffs to have instituted the suit for mesne profits when they had failed to establish that the defendants were mere trespassers. In support of this, reliance is placed on the observations in the two cases decided by the Calcutta High Court referred to above and the case decided by the Madras High Court. To allow such a contention to prevail would be to permit a suit for mesne profits for any number of years, even exceeding 12 years to be instituted subsequently if the title to the property is the subject of a protracted litigation. In such cases the practice certainly is for the plaintiff to institute a suit for mesne profits before the time expires and let it be stayed pending the disposal of the former litigation. Article 109 of the Limitation Act gives the starting point from the date when the profits are received. We cannot make the limitation start instead from the date of an adjudication of the rights between the parties. The plaintiff's right to recover the mesne profits accrued when the profits to which they were entitled were wrongly received by the defendants. If time once began to run and limitation could not be suspended, the decision by the High Court could not give them a fresh cause of action.