Krishnamurthi and Others vs Gopal Gounder and Others

Ratnam, J.—Plaintiffs 2 to 7 in O.S. 405 of 1956 District Munsif Court, Thiruvannamalai (subsequently transferred to the District Munsif Court, Polur), are the petitioners in this civil revision petition. That suit was laid praying for the relief of partition and separate possession of a two-third share in the suit properties and for recovery of mesne profits from the date of sale in favour of the 2nd defendant in the suit till delivery of possession of the properties. On 29-9-1958, a preliminary decree was passed for partition and separate possession of a two third share in the suit properties. However, the ascertainment of mesne profits was relegated to separate proceedings under Order XX rule 12, C.P.C. An appeal in A.S. 147 of 1959, Sub-Court, Vellore, was preferred against the preliminary decree and by judgment dated 14.7.1961, the preliminary decree was modified by deleting items 1 to 3 Of the suit properties, but otherwise affirming the decree of the trial Court, with the result that the reliefs of partition and separate possession and mesne profits granted was confined to items 4 to 8 of the suit properties. On a further second appeal to this court, the decree of the lower appellate Court was affirmed and the second appeal was dismissed. Thereafter, an application in I.A. No. 1896 of 1968 was filed for the purpose of appointing a Commissioner to divide the properties and to allot a two-third share in suit items 4 to 8 to the petitioners. A final decree was also passed on 17-7-1972, and pursuant to the final decree so passed, the petitioners also took possession of the properties allotted towards their two third share on 13.7.1974. In the final decree so passed, the petitioners were not given any relief with reference to the recovery of mesne profits in accordance with the preliminary decree. Thereupon, the petitioners, on 11.2.1981, filed I.A. 224 of 1982 for ascertainment of mesne profits from 10-9-1959 till date of delivery of possession and for passing a decree directing the respondents to pay the mesne profits to the petitioners. That application was resisted by the respondents herein on the ground that the application for ascertainment of mesne profits was not maintainable and was barred by limitation and that the respondents were not liable to mesne profits. The further case of the respondents was that the respondents did not receive any income or cut any trees or remove granite stones from the suit properties, and, therefore, no liability for mesne profits could be fastened on them. The learned District Munsif Polur, who enquired into this application, took the view that as the petitioners had not prayed for the ascertainment and passing of a decree for payment of mesne profits in the course of the final decree proceedings and as the application was also barred by limitation, the petitioners were not entitled to any relief. It was also further found that the petitioners have not established that the respondents had either cut the trees or otherwise received any income from the properties or removed granite. On those conclusions, the application was dismissed. It is the correctness of this that is questioned by the petitioners in this civil revision petition.

Learned counsel for the petitioners first contended that the court below was in error in having held that the application filed by the petitioner for the ascertainment of mesne profits and the passing of a final decree against the respondents with reference to the amount so ascertained, was barred by limitation. According to the learned counsel, there is no prescribed period of limitation as such for filing an application for the ascertainment of the mesne profits especially in the circumstances of this case, and that Art. 181 of the Limitation Act 1908 (corresponding to Art. 137 of the Limitation Act, 1963) will not govern the case. Strong reliance in this connection was also placed by the learned counsel upon the decision of a Full Bench of this court in Ramasubramania Pattar v. Karimbil Pati 50 L.W. 933= 1940-1-M.L.J. 54, However, learned counsel for the respondents did not seek to support the view of the court below that the application is barred by limitation as there is no period prescribed for the filing of an application for the ascertainment of mesne profits as such, pursuant to the preliminary decree.

In this case, under the preliminary decree, the enquiry into the mesne profits was relegated to separate proceedings under Order XX rule 12 C.P.C. In the course of the final decree proceedings, however, the question of quantum of mesne profits and the liability for payment thereof were not gone into at all. It is under those circumstances, the petitioners were obliged to file I.A. 224 of 1982 for the ascertainment of mesne profits in accordance with the preliminary decree and for passing of a final decree directing the respondents to pay such amount towards mesne profits, as may be determined. No provision in the Limitation Act of 1908, or of 1963, has been brought to the notice of the Court to the effect that such an application should be filed within a specified time. On the other hand, in the decision of the Full Bench relied on by the learned counsel for the petitioner, it has been held that under O.XX, rule 12 C.P.C., where an order is passed directing an enquiry into mesne profits, a final decree shall be passed in accordance with the result of such an enquiry and from the fact that the decree holder thinks it advisable to move the court to commence an enquiry, it does not follow that he is making an application within the purview of Art. 181 of the Limitation Act, 1908. The Full Bench further observed that whenever the decree holder moves the court, the court is bound by the rule to enquire into and grant the decree holder a final decree, and such an application is only in the nature of a reminder to court of what remains to be done. It was further laid down that the word application occurring in sub-rule 3 of rule 12 of Order XX of the Code should be read as meaning a motion entirely free from the mischief of Art. 181 of the Limitation Act, 1908. Though as a result of this decision of the Full Bench, an amendment to the rule had been made, that would not in any manner alter the position with reference to the period of limitation, within which such an application for the ascertainment of mesne profits has to be filed. It was rather unfortunate that in this case, the court, at the time of the passing of the final decree, had done so only with reference to the properties, as such wholly omitting the relief of mesne profits granted to the petitioners under the preliminary decree and the application filed by the petitioner in I.A. 224 of 1982 when it was made has, therefore to be construed as a reminder to the court that part of the suit, with reference to the ascertainment of and payment of mesne profits, had not been disposed of even by the final decree and that should be done. For doing so, according to the decision of the Full Bench there is no prescribed period of limitation. Though the Full Bench decision, referred to above, related to Art. 181 of the Limitation Act, 1908 (corresponding to Art. 137 of the Limitation Act of 1963), it does not make any difference to the applicability of the principle of the decision even to cases arising after the Limitation Act of 1963 came into force. Applying the principle laid down by the Full Bench to the facts of this case, it follows that the application filed by the petitioners cannot be stated to be barred by limitation.

Learned counsel for the petitioners next contended that the failure of the petitioners to pay for the relief of ascertainment and payment of mesne profits in the course of the final decree proceedings, would not in any manner preclude then from claiming the relief in an application subsequently filed by them and that the court below as in error in rejecting the application filed on that ground. On the other hand, learned counsel for the respondents contends that though there could be any number of preliminary decrees, there could be one and only one final decree and the petitioners cannot, therefore, be permitted to pray that another final decree confined to the mesne profits only, should be passed, as that would give rise to several final decrees, one in relation to the property and the other with reference to the mesne profits only, and such a situation is not at all in contemplation under the provisions of the Civil Procedure Code. In this connection, strong reliance was also placed by the learned counsel for the respondents upon the decision in Thiagaraja v. Sundaravelu 85 L.W. 95= 1972 1 M.L.J. 230.

As noticed earlier, though under the preliminary decree passed, the petitioners were entitled to the ascertainment of mesne profits and also for a decree for payment of that amount, as and when ascertained, in the course of the final decree proceedings, the mesne profits were not ascertained and directed to be paid and it was only on account of that omission, the petitioners were obliged to approach the court praying for that; relief omitted to be granted under the final decree. In a suit for partition, the mesne profits with reference to the properties forming the subject matter of the suit, and referable to the properties, eventually allotted to the share of the successful party form part and parcel of the corpus itself and are as much in the hotchpot as the lands themselves and it would be most inequitable and unjust that despite a preliminary decree directing the ascertainment of mesne profits, the successful party should be driven to institute another suit separately for the mesne profits and it is certainly not the policy of the law to encourage multiplicity of proceedings. In other words, mesne profits form part of the very property that is to be divided and when under a preliminary decree a direction is given not only for partition of the suit properties according to the shares declared there under, but also for the ascertainment of mesne profits in a separate enquiry, it is the duty of the Court not only to divide the several items of properties, but also the mesne profits derived therefrom, for, the profits derived are also in the nature of property liable to be divided between the sharers. Viewed thus, in this case, in the final decree that had been passed, there has been an omission to recognise the right of the petitioners herein to mesne profits, in which also they would be entitled to a share, as if that also formed part of the properties available for division. The circumstance that a final decree had been passed without reference to the relief of mesne profits granted under the preliminary decree, would not justify the refusal of the relief of ascertainment of mesne profits according to the terms of the preliminary decree. In Basavayya v. Guruvayya 1947-2-M.L.J. 523 it has been pointed out that a partition suit in which a preliminary decree has been passed, is nevertheless a pending suit, and the Court has not only to divide the common properties, but has also to otherwise adjust the rights of the parties in matters relating to the distribution of profits from the properties and that even after the passing of the preliminary decree, it is open to the Court to give appropriate direction in order to prevent multiplicity of litigation and to do complete justice and to effect an equal division of common assets and properties among the parties. It this principle is applied, then, no exception at all can be taken to the filing of the application by the petitioners for the ascertainment of mesne profits. Whether such an application can be filed after the passing of the final decree, may now be considered. In this connection, it would be useful again to refer to the decision of the Full Bench in Basavayya v. Guruvayya 4 L.W. 669= 1951-2-M.L.J. 176 (F.B.) where it has been pointed out that if a preliminary decree awarding possession contains a direction for enquiry into future mesne profits, the suit, or, that part of the suit relating to mesne profits, continues to be pending and the decree holder might move the Court to hold an enquiry and pass a final decree awarding such profits. It was also further pointed out by the Full Bench, referring to Kasi v. Ramanatha Chettiar 1947-2-M.L.J. 523 that there is nothing in the Civil Procedure Code, which can be construed as a prohibition against the court, in a proper case, passing more than one preliminary decree and one final decree in a suit. Even so, it is seen from Kasi v. Ramanatha Chettiar 1947-2-M.L.J. 523 that no inference can be drawn from the general language used in the Code, to the effect that the Code does not contemplate that the Court has no power even in special cases involving multiplicity of proceedings, to pass more than one preliminary decree or one final decree. This clearly indicates that it would be open to the court, in appropriate cases, to pass more than one preliminary decree, or final decree, and this statement of law in Kasi v. Ramanatha Chettiar 1947-2-M.L.J. 523 has been approved by the Full Bench in Basavayya v. Guruvayya 64 L.W. 669= 1951-2-M.L.J. 176 (F.B.), It therefore follows that the objection raised by the learned counsel for the respondents that there could not be more than one final decree is without substance. On the other hand, this court in a number of decisions has taken the view that in a case where the preliminary decree provides for mesne profits, but the final decree does not, it is open to the Court to ascertain the same and pass another final decree. In Rajangam Iyengar v. Natesa Chettiar 81 L.W. 158= 1968-11 M.L.J. 282. It the preliminary decree provided for partition and separate possession of the plaintiffs share and also for the ascertainment of mesne profits. Though even during the pendency of the application for the passing of the final decree, an application for ascertainment of mesne profits was filed ultimately, the application was not represented but a fresh application was filed for ascertainment of mesne profits, by which time, the final decree had been passed. Though the trial court took the view that even in such a case, mesne profits could be ascertained, the appellate Court held that the mesne profits not having been ascertained and provided for in the final decree, the application in that regard, could not be maintained. Alagiriswami, J. observed at page 283 as follows� I should say that in this case, where the preliminary decree provides for ascertainment of mesne pro fits and the final decree does not provide for mesne profits, it would be open to this court to pass another final decrees after ascertainment of mesne profits. A suit cannot be said to have been finally disposed of until all the prayers in the plaint have either been granted or specifically refused. In the present case, the preliminary decree having provided for ascertainment of mesne profits and (the final decree) not having provided for mesne profits, it is open to the Court to ascertain it and pass another final decree. There is nothing to prevent such a course being adopted by the court I cannot accept the argument on behalf of the respondent that because the final decree already passed does not provide for mesne profits, should be deemed to have been refused. The matter was never under consideration at the stage of the earlier final decree.

The observations, referred to above, clearly lay down that where a preliminary decree grants the relief of ascertainment of mesne profits, but the final decree does not award mesne profits after ascertainment, that part of the suit relating to the mesne profits should be deemed pending and the Court will be justified in passing a final decree in respect of mesne profits, though in respect of the properties, a final decree had already been passed. A similar question arose in Manikka Mudaliar v. Munilakshmammal 86 L.W. 699= 1972 2 M.L.J. 548. In that case also, the preliminary decree in a suit for partition not only declared the share of the plaintiff, but also provided that the plaintiff''s share in future mesne profits would be determined in the final decree proceedings. However, in the final decree proceedings, the determination of the future mesne profits was left to be decided in separate proceedings, while other matters provided under the preliminary decree were settled in the final decree. Subsequently, an application was filed by the plaintiffs for the determination of mesne profits, which was opposed on the ground that as the final decree had already been passed, the application for enquiry into mesne profits could not be maintained subsequent to the passing of the final decree. This Court took the view that the final decree passed was not a complete final decree, and that it is open to the parties to ask for piecemeal final decree depending upon the exigencies and other factors and leave other matters to be conclusively determined in a complete final decree. In that view, the application was held to be maintainable. Again, in Palanivel Pillai Vs. Sivakolundu Odayar and Others, in the preliminary decree, there was a direction regarding the ascertainment of mesne profits under O.XX R.12, C.P.C. but when a final decree was actually obtained, no provision was made therein for the determination of the mesne profits and pursuant to the final decree, properties were also taken possession of. It was thereafter, that an application was filed, for determination of the mesne profits from the date of presentation of the plaint till the date of delivery of possession and that application was opposed on the ground that the application was beyond time and the final decree having been already passed not incorporating a clause relating to mesne profits, there could not be any further enquiry after the passing of the final decree. Ramaprasada Rao J. (as he then was), relying upon Rajangam Iyer v. Natesa Chettiar 18 L.W. 158= 1968-2-M.L.J. 282, and distinguishing the decision in Thyagaraja v. Sundaravelu 1972-1-M.L.J. 230= 85 L.W. 95, held that the absence of a direction for an enquiry into the mesne profits in the final decree in a suit where possession and mesne profits were asked for and both reliefs were granted, will not be a factum which should weigh with courts to negative such an enquiry and to grant the reckoned profits after such an enquiry and that a final decree is a must in a case where the preliminary decree provides for it. In that view, the order of the Court below directing the enquiry was upheld. In Aziazabi v. Fatima Bi 1977-1-An. W.R. 136 the question that arose for decision was, whether, in a suit for partition, once a final decree directing the division by metes and bounds is made, another final decree for profits could be passed on an application for ascertainment of profits filed after the final decree for partition is made. Relying upon the decisions in Basavayya v. Guruvayya 1951-11-M.L.J. 176. F.B., Kasi v. Ramanathan Chettiar 1947-2-M.L.J. 523, Rajangam v. Natesa Chettiar 18 L.W. 158= 1968-2-M.L.J. 282 and Manicka Mudaliar v. Munilakshmammal 1972-2 M.L.J. 568 and distinguishing Thyagaraja v. Sundaravelu 85 L.W. 95= 1972-1-M.L.J. 230, the Division Bench held that so long as the reliefs prayed for in a suit for partition and separate possession and ascertainment of mesne profits are not either expressly granted or rejected, and so long as the directions contained in the preliminary decree regarding the division of properties and allotment of the shares therein and the ascertainment and allotment of the decree holder''s share of the profits are not carried out by either granting or refusing them, notwithstanding the passing of a final decree with reference to one of the directions in the preliminary decree, a petition for passing a final decree with reference to the other directions in the preliminary decree is maintainable and the Court is empowered to pass more than one final decree to completely dispose of the suit. It is thus seen that consistent view taken by this court is that where the entitlement to mesne profits granted under the preliminary decree had not been ascertained and quantified, as a consequence of which, no provision in that regard is made in the final decree, that matter should be considered as not having been disposed of earlier. It would, therefore, be open to the Court to direct an enquiry and also to pass an appropriate final decree in that regard. Thyagarajan v. Sundaravelu 85 L.W. 95= 1972-1-M.L.J. 230 laid down that where a preliminary decree awarding possession contains a direction for enquiry into future profits, that part of the suit relating to the preliminary decree continues to be pending and the decree holder might move the Court to hold an enquiry and pass a final decree awarding such profits, without the necessity for filing an application within the prescribed period under Art. 181 of the Limitation Act, 1908. No exception can be taken to the aforesaid principle laid down in that decision. However, it was later observed in the course of that judgment that the enquiry must be concluded before the final decree is passed. That observation has to be understood as limited to that case and not as a general proposition. As noticed earlier, where the relief of possession is granted coupled with mesne profits under the preliminary decree, there need not be one final decree, but more than one, and the decree holder can seek the ascertainment of mesne profits and for granting a decree for the ascertained mesne profits. It would also be useful in this context to refer to the observation of the Division Bench of this court in Mohamed Hussain v. Ganga Naicken 1972-1-M.L.J. 230= 85 L.W. 95 to the effect that a suit for possession and for mesne profits has to be considered as one for two claims joined together and when a decree is granted for possession and for mesne profits, the decree, in so far as it relates to mesne profits is only preliminary because the final decree cannot be passed unless the amount is ascertained and therefore, further proceedings have to be taken for ascertainment of the amount due towards mesne profits before the claim for mesne profits can be said to have been completely disposed of. The aforesaid aspect has been not borne in mind in the decision in Thyagaraja v. Sundaravelu 1972-1-M.L.J. 230= 85 L.W. 95. It is further seen that in Azizavi v. Fatima Bi 1977-1-An. W.R. 136, the Division Bench of the Andhra Pradesh High Court was disinclined to subscribe to the view that in regard to each item of property, a final decree for partition and profits should be made by the same order and that no separate final decree could be passed after the final decree for partition of all the items of the properties has earlier been made. There is, according to the Division Bench, no warrant whatever for this conclusion in the provisions of the Code of Civil Procedure, and it would also be inconvenient and impracticable. The provisions of the CPC do not prohibit the passing of more than one final decree and any such provision would also completely nullify the power of the Court leaving rights of parties undecided and for the creation of such a situation, there is no provision at all in the Code, for the provisions therein are intended to advance justice than to thwart it. Under those circumstances, the decision in Thyagarajan v. Sundaravelu 1972-1-M.L.J. 230= 85 L.W. 95 cannot be pressed into service by the respondents to contend that the application for the ascertainment of mesne profits cannot be maintained after the passing of the final decree.

The court below has proceeded to reject the application on the ground that no evidence has been let in by the petitioners with reference to the mesne profits. However, it is seen from the grounds urged that the petitioners had not been given a fair opportunity to let in evidence. This is probabilised by the notes paper maintained in this case, wherefrom it is seen that the matter had been posted before Court on a number of occasions for a consideration of the question of limitation only and had also been reopened suo motu several times by the Presiding Officer. A consideration of the entries in the notes paper leads to the irresistible conclusion that the court was more concerned with considering the question of limitation rather than giving an opportunity to the petitioners to let in evidence in order that the mesne profits awarded under the preliminary decree can be ascertained and then quantified. In view of this, the petitioners are certainly well founded in their contention that an effective opportunity had not been afforded to them to place evidence with reference to the mesne profits and thereby a serious prejudice had been caused to them. Under those circumstances, the order of the court below dismissing I.A. 224 of 1984, on the ground that it is barred by limitation and that it is also not maintainable and further that the petitioners have not established that they are entitled to mesne profits, cannot be sustained Consequently, the civil revision petition is allowed, the order of the Court below is set aside and I.A. 224 of 1982 is remitted to the court below for the ascertainment of mesne profits after giving an opportunity to the petitioners and the respondents to let in oral as well as documentary evidence and to pass a final decree depending upon the conclusions arrived at in the course of the mesne profits enquiry, The petitioners will be entitled to their costs in this revision.