A. Duraiswamy Pillai vs A. Arumugham

P. Sethuraman, J.—Defendant is the appellant. This is an appeal against the order passed by the District Judge, Tiruchirappalli in A.S. No.

349/80. The said appeal was preferred by the plaintiff who had filed a petition under Order 20, Rule 12, C.P.C., before the Principal Subordinate

Judge, Tiruchirappalli, praying for the appointment of a Commissioner to make an enquiry with regard to the mesne profits in respect of the

property concerned in the suit. The suit was for partition filed by the plaintiff. The learned Principal Subordinate Judge had dismissed the petition.

Aggrieved with the said order of dismissal, the plaintiff filed the appeal before the District Judge, Tiruchirappalli and the learned Principal District

Judge allowed the appeal and set aside the order dismissing the petition filed by the plaintiff, and directed the lower Court to dispose of the

application at an early date. Aggrieved with the said order passed by the learned Principal District Judge, Tiruchirappalli, the present appeal has

been filed.

The respondent herein as plaintiff filed the suit for partition and separate possession of 1/2 share in A and B schedule properties and recovery of

past profits of Rs. 900 and also for a direction for ascertainment of future profits under Order 20, Rule 12, C.P.C. from the date of plaint till

delivery of possession, in respect of the house property that belonged to himself and his brother. A preliminary decree was passed on 28.7.1976

for partition of plaintiff''s shares 3/8th share in the plaint A schedule property for separate possession and the preliminary decree provided that the

quantum of past and future profits is to be relegated to separate proceedings under Order 20, Rule 12, C.P.C. Thereafter, the plaintiff filed the

petition for appointment of a Surveyor to effect division of the property in accordance with the preliminary decree, and a final decree was passed

on 19.2.1977 allotting 3/8th portion in the suit house. The final decree then passed did not provide for payment of mesne profits either past or

future. Thereafter, I.A. No. 282/79 was filed by the plaintiff under Order 20, Rule 12, C.P.C. and the learned Principal Subordinate Judge,

Tiruchirappalli, who enquired the petition dismissed the same. As stated earlier against the said order dismissing the petition, A.S. N0. 349/80 was

filed before the. learned Principal District Judge, Tiruchirappalli, who allowed the appeal. Against the said order of the learned Principal District

Judge, Tiruchirappalli, the present appeal has been filed by the defendant contending that the learned Principal District Judge erred in allowing the

appeal and as per the decision reported in Mohamed Habibullah Vs. Rahimath Beevi, , such an application for final decree is not maintainable and

the application is barred by principles of res judicata and further the learned Principal District Judge failed to note that the respondent was in joint

possession and so the claim for mesne profits is not maintainable.

The point that arises for consideration in this appeal is as to whether the petition claiming mesne profits is not maintainable under law.

The learned Counsel for the appellant/-defendant submitted that the learned Principal District Judge, has elaborately discussed the various

decisions placed before him but failed to follow the decision reported in Mohamed Habibullah Vs. Rahimath Beevi, , and according to that

decision the learned Principal District Judge ought to have dismissed the appeal thereby confirming the order of the learned Principal Subordinate

Judge, Tiruchirappalli, who dismissed the petition. It is to be seen that the preliminary decree passed in the suit provided for partition and separate

possession of 3/8th share of the plaintiff in A schedule property and also provided for ascertainment of mesne profits by means of separate

proceedings under Order 20, Rule 12, C.P.C. Subsequently the plaintiff is shown to have filed I.A. No. 541/76 for appointment of Surveyor to

make the division in the ''A'' schedule property and to allot 3/8th portion in that house property to him. As such a Commissioner had been

appointed and 3/8th portion of the suit house was allotted to him and final decree was passed to that effect. It is now the contention of the

appellant/defendant that inasmuch as the final decree has been passed allotting 3/8th share, there could be no further petition for ascertainment of

mesne profits and in that connection the decision reported in Mohamed Habibullah Vs. Rahimath Beevi, , is strongly relied upon. It is to be pointed

out that the learned Principal District Judge has also discussed elaborately the following judgments also in the order passed by him. Varatharajulu

Reddiar v. Venkatakrishna Reddiar ILR (1967) Mad. 136, Thiagarajan v. Sundaravelu (1972) 1 M.L.J. 230 : (1972)85 L.W. 95 : AIR 1972

Mad. 216, M. Rajangam Ayyar Vs. Natesa Chettiar, ; A.R. Veerappa Gounder Vs. Sengoda Gounder, ; K.P. Nalla Goundar Vs. P.

Ramaswamy and Others, .

The decision reported in Mohamed Habibullah Vs. Rahimath Beevi, , is rendered by S. Mohan, J. The learned Judge referred to the earlier

decision in the matter In Re: Bandi Butchaiah, ; Ponnuswami Udayar v. Santhappa Udayar (1962)75 L.W. 683 : AIR 1963 Mad. 171, and

Mahanth Sudarshan Dass Vs. Mahanth Ramkripal Dass and Others, , and has held that where the final decree did not provide for mesne profits a

subsequent application for mesne profits was not maintainable since the matter had become final and there should be only one final decree in a

case. Further the plaintiff/petitioner in that case had come forward with a case that he was in joint possession, which means the question of mesne

profits could not arise.

It is to be pointed out that in the case in which the learned Judge rendered a decision neither in the preliminary decree nor in the final decree was

any provision made with regard to mesne profits. In our case the preliminary decree provided for the enquiry with regard to mesne profits and that

was relegated to separate proceedings under Order 20, Rule 12, C.P.C. It will now be relevant to refer to the other grounds for rejecting the claim

of the plaintiff namely the allegation made by him that he was in joint possession of A schedule property. The suit was one for partition and for

separate possession of the share to which the plaintiff was entitled to and the evidence clearly disclosed that the property concerned was let out to

a tenant and inasmuch as the plaintiff had the right in the property, it had been alleged that he is in joint possession of the suit property. As pointed

out by the learned Principal District Judge, merely on such allegation one cannot negative the claim for the mesne profits when the facts established

the case are otherwise, Mohan, J. in the decision rendered by him reported in Mohamed Habibullah Vs. Rahimath Beevi, , has also pointed out

thus:

Order 20, Rule 12, relates to ''mesne profits'' in the sense in which that expression is defined in Section 2, Clause 12 of the Code. The claim of a

member of a joint Hindu family suing for partition and for his share of the profits accruing from the lands pending the suit is not, properly speaking,

a claim for ''mesne profits'' and Order 20, Rule 12, Civil Procedure Code, has no application to such a case. (Para 14 page 440).

As regards the said observation by the learned Judge, it is respectfully to be pointed out, that in the decision reported in Ramaswami Iyer v.

Subbiar and Anr. AIR 1957 Mad. 184, Basheer Ahmed Sayed, J. has held that though an application is taken out under Order 20, Rule 12, still it

does not necessarily mean that the application should be dealt with by the Court only under that order and rule. If a mistake has been committed in

mentioning a provision of law under which an application is made, it does not preclude the Court from deciding the matter under the correct

provision of law Order 20, Rule 18. By applying what has been laid down by the said learned Judge, it is now to be seen whether the application

filed by the plaintiff is maintainable. In the decision reported in M. Rajangam Ayyar Vs. Natesa Chettiar, , rendered by A. Alagiriswami, J. it has

been pointed out that in a suit for partition, separate possession and mesne profits, when a preliminary decree providing for ascertainment of mesne

profits and final decree not providing for mesne profits, it is open to the Court to ascertain mesne profits and pass another decree. It is also pointed

out by the learned Judge, that it cannot be said that because the final decree already passed does not provide for mesne profits, it should be

deemed to have been refused. The decision reported in Manicka Mudaliar and Others Vs. Munilakshmammal, is rendered by N. Krishnaswamy

Reddy, J. The facts in that case reveal that the preliminary decree in a suit for partition declaring the share of the plaintiff, provided that the

plaintiff''s share in future mesne profits would be determined in final decree proceedings. But in the final decree proceedings the determination of

mesne profits was again left to be decided in separate proceedings, while the other matters provided under the preliminary decree were settled

under the final decree. The plaintiff subsequently filed an application under Order 20, Rule 12, for the determination of the future mesne profits.

The learned Judge held that such an application is maintainable. The learned Judge has also referred to the decision rendered by A. Alagiriswami,

J. reported in M. Rajangam Ayyar Vs. Natesa Chettiar, . The decision reported in K.M. Madhava Krishnan Vs. K.V. Thangaperumal and

Others, , is also a decision rendered by Krishnaswamy Reddy, J. It has been pointed out by the learned Judge that there can be several final

decree proceedings depending upon the circumstances of each case. In the decision reported in K.P. Nalla Goundar Vs. P. Ramaswamy and

Others, , rendered by Ismail, J. (as he then was), the learned Judge has pointed out among other things that:

With regard to a suit for partition what is really the consequential relief will be a claim for accounting and not a claim for mesne profits. In a suit for

partition the profits accruing from the different items of properties which are the subject matter of the claim for partition will also be property to be

divided among the different shares. So long as that item of the property is not divided, the suit cannot be said to have been finally disposed of. Any

decree that is passed prior to that can only be interim final decree or one of several final decrees which came to be passed in the suit.

The said decision rendered by Ismail, J. was also one of the decisions referred to above by Mohan, J. in the decision reported in Mohamed

Habibullah Vs. Rahimath Beevi, .

Taking into consideration the several decisions referred to above, bearing in mind the principles laid down, I feel having regard to the facts in the

present case, it is open to the plaintiff to file the petition claiming mesne profits namely as stated earlier to claim his share of the rental income, by

asking for such income derived by the defendant in the suit. I find the point accordingly. In the result the appeal is dismissed with costs.