The present second appeal has been filed by the defendants as against the judgment and decree passed by the I Additional District Judge, Salem, in A.S.No.128 of 2004, dated 31.01.2006, reversing the judgment and decree passed by the Principal Subordinate Judge, Salem, in I.A.No.572 of 1996 in O.S.No.653 of 1992, dated 30.12.2002.
2. Brief facts leading to the filing of the second appeal are given as under:-
The plaintiffs/respondents herein filed a suit in O.S.No.653 of 1992 seeking to divide the suit properties into 104 shares with all equities and to allot 76 separate shares in favour of the plaintiffs 1 and 2, with a consequential relief of permanent injunction restraining the defendants from in any way interfering with the physical possession and enjoyment of the suit properties by the plaintiffs till the suit properties are partitioned and the parties are put to separate possession according to the law.
3. Opposing the said prayer, the defendants filed a written statement complaining that there was no cause of action, for the reason that the second plaintiff is running a fuel depot in Item 1 and the plaintiffs 1 to 3 are living in Item 2 of the suit properties, by paying the municipal taxes. Further, there was no demand for partition by the plaintiffs at any time, hence, the allegations made contra thereto in the plaint are all false. The defendants, at no point of time, threatened the plaintiffs 1 and 2 for residing in the suit properties and the second plaintiff is also running a fire wood depot. Now, all the plaintiffs, by joining together, wanted to dictate terms with the defendants in the matter of division of the suit properties. Further, when the plaintiffs are staying in the suit properties and in contra, the defendants are kept out of the portion of the suit properties, it was pleaded, the plaintiffs 1 to 3 must pay their shares of the probable income.
4. Under these circumstances, the trail Court, after full trial, partly decreed the suit granting the relief for partition of the suit property and the preliminary decree was passed for partition directing the defendants to take separate proceedings for rendition of accounts. Thereafter, the defendants filed I.A.No.572 of 1996, for appointment of commissioner to hold enquiry into the income from the suit properties and also to direct the respondents to render accounts and provide for payment of the defendants' 28/104 share of income. The said IA was allowed with a direction that the defendants are entitled to mesne profits from Item No.1 of the suit property, which is fixed at Rs.800/- per month and from Item No.2, it was fixed at Rs.950/- per month, till the date of delivery of possession of their shares in the suit properties allotted to the defendants. Aggrieved by the same, the plaintiffs filed A.S.No.128 of 2004, before the I Additional District Judge, Salem. The main contention was that the preliminary decree in this case being one for rendition of account , final decree for payment of mesne profits is passed against the preliminary decree. Further, it was argued that rendition of accounts, as directed by the preliminary decree means that the plaintiffs, who are in possession of the suit properties, have to render accounts, namely, the actual income and the expenditure for the maintenance of the suit properties, and then only the share of the parties in the balance amount have to be worked out. But, so far as mesne profit is concerned, it does not mean the actual money received by the plaintiffs, but the value which ought to have been enjoyed by them. Hence, rendition of accounts differ from ascertainment of mesne profits and as already pointed out, when the preliminary decree directs for rendition of accounts, the lower Court has passed a final decree for mesne profits, and hence the appeal has to be allowed for getting the rendition of accounts and thereafter, the parties have to work out the money according to their shares. Accepting the contention that the rendition of accounts and ascertainment of mesne profits are two different procedures for calculating the monetary benefits, by setting aside the order passed in I.A.No.572 of 1996 in O.S.No.653 of 1992, allowed the appeal filed by the plaintiffs. As against that, the present second appeal has been filed by the defendants/appellants herein.
5. This Court, at the time of entertaining the second appeal, framed the following substantial questions of law;-
"i. Whether in law the lower appellate Court was right in refusing a decree for mesne profits without properly understanding the dictum laid down in AIR 1951 Mad 938 FB.
ii. Whether in law the lower appellate Court was right in failing to see that in a suit for partition, the Court should do complete justice, among the sharers and prevent multiplicity of litigation?"
6. While arguing on the substantial questions of law, learned Senior counsel appearing for the appellants submitted that the lower appellate Court was not right in refusing a decree for mesne profits without properly understanding the ratio laid down by this Court in AIR 1951 Mad 938 FB. Further, it was submitted that when the suit for partition is filed, the Court should do the complete justice among the sharers and also equally see that there is no multiplicity of litigation, coming between the parties by giving appropriate direction about distribution of properties, even suo motu without an application by the parties.
7. Adding further, it was pleaded that when the appellants sought for direction for ascertaining the income from the properties and the plaintiffs/respondents herein are in possession, it should be held that they are bound to pay their shares after the partition.
8. In reply, learned counsel appearing for the respondents submitted that the preliminary decree being one for rendition of accounts, after passing the preliminary decree, no Advocate Commissioner can be appointed to find out mesne profits, so as to pass any final decree against preliminary decree. The rendition of accounts, as directed by the preliminary decree, means that the plaintiffs, who are in possession of the suit properties, have to render accounts, namely, the actual income and the expenditure for the maintenance of the suit properties and only thereafter, the share of the parties in the balance amount have to be worked out. But, so far as mesne profits is concerned, it does not mean the actual money received by the plaintiffs, but the value which ought to have been enjoyed by them. Therefore, the rendition of accounts differ from ascertaining of mesne profits.
9. In respect of his submission, he has also relied upon a judgment of this Court in Babburu Basavayya and others v. Babburu Guravayya and others (1951 (2) MLJ 176), wherein it has been settled that the claim of a plaintiff suing for partition and his share of the profits accruing from the land pending suit is not, properly speaking, a claim for mesne profits. Therefore, Order 20 Rule 12 of the Civil Procedure Code has no application to such a case.
10. Let me see what is the position of law on the above issue. In a suit for partition, the question of awarding possession of the properties to the parties will arise only when the properties are divided and the parties are directed to take possession of the particular items allotted to them. A preliminary decree in a partition suit merely determines the right of parties to a share in the properties and the particular shares to which they are entitled and the properties that are available for partition and it is the final decree which ultimately divides the properties and awards separate possession of the properties to each of the parties. The Full Bench decision of our High Court in Babburu Basavayya's case (cited supra), distinguishes between three different types of cases in which a question of profits or mesne profits might arise as follows:-
(1) Suits for ejectment or recovery of possession of immoveable property from a person in possession without title, together with a claim for past or past & future mesne profits.
(2) Suits for partition by one or more tenants-in-common against others with a claim for account of past or past & future profits.
(3) Suits for partition by a member of a joint Hindu family with a claim for an account from the manager. In the first case, the possession of the defendants. not being lawful, the plaintiff is entitled to recover "mesne profits" as defined in Section 2, Clause (12), Civ. P. C., such profits being really in the nature of damages. In the second case, the possession & receipt of profits by the deft, not being wrongful the plaintiff's remedy is to have an account of such profits making all just allowances in favour of the collecting tenant in common. In the third case, the plaintiff must take the joint family property as it exists at the date of the demand for partition and is not entitled to open up past accounts or claim relief on the ground of past inequality of enjoyment of the profit, except where the manager has been guilty of fraudulent conduct or misappropriation. The plaintiff, would, however, be in the position of a tenant-in-common from the date of severance in status & his rights would have to be worked out on that basis.
The present case falls in the second situation. Therefore, I am of the view that even if the plaintiff has not pleaded in the plaint that he has been excluded from the share of profits, he is entitled as a member of the Hindu joint family to apply for an enquiry in respect of the profits reaslised by the defendants at the stage of the preparation of final decree because every suit for partition is a suit for account on the date of the institution of the suit. Such an application is required to be filed after the ascertainment of share is the preliminary decree. The only difference between a suit for recovery of possession of the land along with mesne profits and a suit for partition is that in the former, the plaintiff has to pray for past mesne profits and, in the latter, the plaintiff is not required to pray for past profits. Order 20, Rule 12 applies to a case where the defendant is in wrongful possession of a suit property. In a suit for partition of the Joint family properties, nobody is in wrongful possession of the properties.
11. In view of the settled law that in a suit for partition, the question of claiming mesne profits in the plaint itself cannot possibly arise, since the defendant, who is the co-owner cannot be said to be in wrongful possession as against the plaintiff. Therefore, this Court, by following the judgment passed by this Court in K.P.Nalla Gounder v. P.Ramaswamy and others (1979 (I) MLJ 309), is inclined to dismiss the present second appeal, as I do not find any error or flaw in the impugned judgment.
12. In the result, the second appeal is dismissed. Consequently, the judgment and decree passed by the first appellate Court in A.S.No.128 of 2004 is confirmed and the judgment and decree passed by the learned Principal Subordinate Judge, Salem, in I.A.No.572 of 1996 in O.S.No.653 of 1992 is set aside. No Costs.
rkm To
1. The I Additional District Judge, Salem.
2. The Principal Subordinate Judge, Salem