JUDGMENT S.K. Dubey, J. 1. This is a defendants' Second Appeal against the judgment and decree dated 18-8-1982 passed by Shri P. B. Kerhalkar, Additional Judge, Barwani to the Court of the District Judge, Mandleshwar in Civil Appeal No. 36-A/81, preferred against the judgment and decree dated 21-11-1980, passed in Civil Suit No. 14-A/78, by the Civil Judge, Class-II, Sendhwa, whereby the plaintiffs' suit for partition of agricultural land and for possession of the 1/4th share from the said land, has been decreed. 2. Brief facts, leading to this appeal, are as under. The common ancestor of the plaintiffs and defendants was one Rustam, who had two sons -- Chand Mohammad and Lal Mohammad. Chand Mohammad died in or about the year 1924. Lal Mohammad died in the year 1936. Chand Mohammad had two sons -- Peer Mohammad @ Dagru and Taj Mohammad the defendant No. 9, The defendants Nos. 1 to 8 are the descendants of Lal Mohammad, Peer Mohammad left his wife Hussainabe, the plaintiff No. 3. The rest of the plaintiffs are the descendants of Peer Mohammad, i.e. sons and daughters. Rustamji had agricultural land in the village Pipaldar, Tehsil Sendhwa situated at survey Nos. 133, 144, 147 and 148 area 31.60 acres, of which both the sons of Rustamji, Chand Mohammad and Lal Mohammad were the co-sharers. Another agricultural land of Rustamji was situated in Sendhwa, which is said to have been sold to third persons by the plaintiffs. The plaintiffs applied for partition before the Tehsildar under Section 178 of the M. P. Land Revenue Code, 1959 (for short "the Code") in case No. 68-A 27/76 and claimed 1/4th share in the agricultural land situated at village Pipaldar. Before the Tehsildar, the question of title was raised by the defendants. Hence, the Tehsildar vide his order dated 4-10-1976 directed the parties to file a civil suit and obtain declaration, till then the proceedings u/s 178 of the Code, were ordered to be stayed. Against this order of Tehsildar, an appeal was preferred before the Sub-divisional Officer, which was also dismissed. Hence, the plaintiffs filed the suit on 2-2-1978 in the court of the Civil Judge, Class-II, Sendhwa for declaration, partition and for possession of 1/4th share from the suit land. During the pendency of the suit, Taj Mohammad died and his legal representatives were brought on record. 3. Hence, the plaintiffs filed the suit on 2-2-1978 in the court of the Civil Judge, Class-II, Sendhwa for declaration, partition and for possession of 1/4th share from the suit land. During the pendency of the suit, Taj Mohammad died and his legal representatives were brought on record. 3. The defence of the defendant - appellants in the trial court was that the family had lands in two villages -- one in Pipaldar and another at Sendhwa, Because of private partition between the two branches, the land situated in the village Sendhwa came in the hands of the plaintiffs and the land situated at Pipaldar came in the hands of the defendants, which is the subject-matter of the suit. The defendants became the owners of the said suit lands by virtue of the previous partition, Which was held on or before the settlement year 1925-26 and since then the defendants are in possession of the land at Pipaldar as absolute owners, alternative plea of adverse possession was also raised. Second defence in the suit was that the suit for partial partition is not maintainable in relation to the land situated at Pipaldar, without including the Sendhwa land. The third defence was of estoppel by conduct, i.e. one branch remained in possession of the land situated at Pipaldar and another at Sendhwa, The Sendhwa land was sold to third persons by the plaintiffs. Hence the plaintiffs are estopped and are not entitled to claim any share in the suit land. 4. The trial court after recording of evidence of the parties, negatived all the defences and decreed the suit for partition. Against this judgment and decree, a first appeal was preferred, which was also dismissed and the findings of the trial court were affirmed. Against the concurrent findings of the Courts below, the defendant-appellants have preferred this second appeal on 8-11-1982, which was admitted on 12-11-1982 by this court on the following substantial question of law: Whether in the facts and circumstances of the case, present suit for partial partition is not maintainable in law? On the same day, the execution of the decree for possession was stayed by this court. After notice to the respondent-plaintiffs and alter hearing them on the question of stay on 16-2-1983, the stay order passed by this Court was confirmed subject to the condition that the appellants shall deposit Rs. On the same day, the execution of the decree for possession was stayed by this court. After notice to the respondent-plaintiffs and alter hearing them on the question of stay on 16-2-1983, the stay order passed by this Court was confirmed subject to the condition that the appellants shall deposit Rs. 1,000/- per year towards mesne profits from the date of the institution of the Second Appeal. On 8-8-1984 this Court passed another order that the respondents are permitted to withdraw the amount of mesne profits duly deposited on their furnishing solvent security for the purposes of restitution to the satisfaction of the trial court. Thus, as a result of the stay order passed by this court, the plaintiff- respondents are entitled to Rs. 1,000/ - per year as mesne profits from the date of the institution of the second appeal till its decision. 5. At the time of hearing, Shri B. L. Pavecha, learned counsel for the appellants tried to convince this court that the suit for partial partition was not maintainable but as the parties are governed by the Mohammedan Law, a co-heir or co-sharer can sue for recovery of his own share in any item of joint property. The doctrine of partial partition is applicable only to a Hindu coparcenary, where the coparceners are joint in estate and not to Muslims, who are only tenants-in-common. Under the Mohammedan Law the heirs of a deceased Mohammedan succeed to a definite fraction of every part of his estate. The shares of heirs under the Mohammedan Law are definite and known before the actual partition. Therefore, on partition of properties belonging to a deceased Muslim, there is division by metes and bounds in accordance with the specific share of each heir being already determined by the law. See the case of the Apex Court in Syed Shah Gulam Ghouse Mohiuddin and others vs. Syed Shah Ahmad Mohiuddin Kamisual Qadri (AIR 1971 SC 2185) and a case of Patna High Court in Mt. Haliman and Ors. vs. Md. Manir and others AIR 1971 Pat 385 , wherein the Division Bench has held that under the Mohammedan Law, partial partition of only some items of the family property is permissible. Therefore, the contention of Shri B. L. Pavecha, learned counsel for the appellants cannot be accepted that the suit for partial partition was not maintainable. vs. Md. Manir and others AIR 1971 Pat 385 , wherein the Division Bench has held that under the Mohammedan Law, partial partition of only some items of the family property is permissible. Therefore, the contention of Shri B. L. Pavecha, learned counsel for the appellants cannot be accepted that the suit for partial partition was not maintainable. As the substantial question of law so framed, is decided in the negative against the appellants, the appeal has no merit and deserves to be dismissed. 6. At this stage Shri S. D. Sanghi, Senior Advocate with Shri Iqbal Hussain made an assiduous submission that as the defendants have deprived the plaintiffs from their share and use of agricultural land, future mesne profits under Order 20, rule 12 of the Code of Civil Procedure, be awarded from the date of the decree of the trial court, till the plaintiffs are put in possession, in any case, from the date of the institution of the second appeal, and the Court is empowered in such cases to grant future mesne profits even in the absence of an appeal or cross-objections. The appellate court in such a case should exercise the powers under 0.41, R. 33, Civil Procedure Code and the doctrine of restitution be made applicable, as because of the stay order by the appellate Court, the appellants have deprived the respondents of possession, use and the benefit of the land thereunder. The mesne profits @ of Rs. 1,000/- per year so fixed by this Court, at the time of hearing on the question of stay, were only provisional and cannot be said to be final as future mesne profits can only be determined after an enquiry under O. 20, R. 12, Civil Procedure Code Learned counsel further contended that under O. 20, R. 12, Civil Procedure Code such an enquiry will amount to the continuation of the suit. In support of his assiduous submission, the learned counsel placed reliance on the case of the Apex Court in Giant Ram and Ors vs. Ramji Lal and Ors. AIR 1969 SC 1144 , Lal Bhagwant Singh vs. Shri Kishan Das AIR 1953 SC 136 , Collector of Bombay vs. Municipal Corporation of the City of Bombay and Ors. In support of his assiduous submission, the learned counsel placed reliance on the case of the Apex Court in Giant Ram and Ors vs. Ramji Lal and Ors. AIR 1969 SC 1144 , Lal Bhagwant Singh vs. Shri Kishan Das AIR 1953 SC 136 , Collector of Bombay vs. Municipal Corporation of the City of Bombay and Ors. (AIR 1951 SC, 469), Bhagwati Prasad vs. Chandramaul AIR 1966 SC 735 , Koksingh vs. Smt. Deokabai ( AIR 1976 SC 634 ), R.S. Maddanappa vs. Chandramma and another ( AIR 1965 SC 1812 ), and a Full Bench report of this court in Amarsingh vs. Chandrashekhar Rao (AIR 1984 MP l) and on the cases reported in Kantheeswaram Ekanthalingaswami Koil (AIR 1937 Mad 46), Makkala Narsimul vs. Gunnala Raghunandan Rao (AIR 1977 AP 374) and Smt. Biva Banerjee and another vs. Manmatha Nath Banerjee ( AIR 1977 Cal. 82 ). 7. Shri B. L. Pavecha, learned counsel for the appellants in reply to this demand of future mesne profits, contended that the plaintiffs in their plaint claimed future mesne profits @ of Rs. 1000/- per year and an issue No. 9 was framed by the trial court. The parties led evidence and ultimately the claim for future mesne profits was dismissed by the trial court. Against the dismissal of this claim, the appellants neither filed an appeal before the lower appellate court nor any cross-objections, were filed under O.41, R. 22, Civil Procedure Code. Not only this, they did not invite the attention of the lower appellate court to pass a decree for mesne profits in accordance with O. 20, R. 12 Civil Procedure Code or to exercise the powers under O.41, R. 33, Civil Procedure Code. Moreover, the finding on issue No. 9 and the denial of the relief by the trial court as well as by the lower appellate court, now has become res judicata and now, such relief would be deemed to have been refused under Explanation 5 of S. 11 of the Code of Civil Procedure as it has attained finality. Learned counsel also made a submission that when the appeal is being dismissed, the powers under O.41, R. 33, Civil Procedure Code cannot be exercised as no interference is being made in the appeal so as to pass any order to adjust the rights of the parties according to justice, equity and good conscience. Learned counsel also made a submission that when the appeal is being dismissed, the powers under O.41, R. 33, Civil Procedure Code cannot be exercised as no interference is being made in the appeal so as to pass any order to adjust the rights of the parties according to justice, equity and good conscience. In support of his contentions, the learned counsel for the appellants, placed reliance on a case of the Apex Court reported in Mohammad Amin and Ors. vs. Vakil Ahmad and Ors. ( AIR 1952 SC 358 ) and specifically drawn my attention to para 20 of the said judgment. Learned counsel also pressed into service another case of the Apex Court in Nirmala Bala Ghose and another vs. Balai Chand Ghose ( AIR 1965 SC 1874 ) and a Division Bench report of this court in the British India General Insurance Co. Ltd. vs. Seth Ramnath and others ( AIR 1962 MP 368 ) and relied upon the commentary on Civil Procedure Code by Chitale, Xth Edition, Volume-III, page 656, Note 9. 8. After hearing the learned counsel for the parties, I am of the opinion that in the present facts and circumstances of the case, no direction can be made under 0. 20, R. 12, of the Code of Civil Procedure for making an enquiry in respect of the grant of future mesne profits to the plaintiffs nor the powers under O.41, R. 33, Civil Procedure Code can be exercised. My reasoning for the same is as under: 9. The plaintiffs made a specific claim for future mesne profits in their plaint and in sub-para (c) of para 10 of the relief clause, prayed for a decree for awarding mesne profits @ Rs. 1000/-, per year till delivery of possession. A specific issue No. 9 was raised and ultimately after recording of evidence and hearing the parties, the trial court arrived at a finding in favour of the defendants and negatived the claim and denied the relief of future mesne profits. Against this dismissal of claim in the suit, the plaintiffs ought to have preferred an appeal or cross-objections, which having not been done, that finding of the dismissal of the claim has become final. Against this dismissal of claim in the suit, the plaintiffs ought to have preferred an appeal or cross-objections, which having not been done, that finding of the dismissal of the claim has become final. Not only this, no prayer was made by the plaintiffs before the lower appellate court for passing a decree in accordance with the provisions of O.22, R. 12, Civil Procedure Code and for a direction or for making an enquiry as to rent or mesne profits from the institution of the suit until the delivery of possession to the decree-holder. Thirdly, even no prayer was made for exercising the power under O.41, R. 33, Civil Procedure Code. Even if the prayer was made, which I do not find in the judgment of the lower appellate court, in that case too the appellate court could not have granted the relief of future mesne profits could not have been granted by exercising the powers under O.41, R. 33, Civil Procedure Code. The powers under O.41, R. 33, Civil Procedure Code can be used only in exceptional cases, enabling the court to pass a decree as ought to have been passed or as the nature of the case required even in favour of a party who has not appealed but the powers are restricted to cases, where as a result of interference in favour of the appellant, further interference is rendered necessary in order to adjust the rights of the party according to justice, equity and good conscience. It is settled that when no interference is made by the lower appellate court nor it is being made in the second appeal, there is no scope to pass any order under O.41, R. 33, of the Code of Civil Procedure. See the case of this court in British India General Insurance Co. (supra). It is not a case where the mesne profits were not specifically claimed, on the contrary, there was a specific claim, an issue was raised and then the trial court, after appreciation of the material on record, rejected the claim. See the case of this court in British India General Insurance Co. (supra). It is not a case where the mesne profits were not specifically claimed, on the contrary, there was a specific claim, an issue was raised and then the trial court, after appreciation of the material on record, rejected the claim. It is true that the court derives jurisdiction to pass a decree for future mesne profits not by virtue of any claim made by the plaintiff in the plaint but by the virtue of the provisions of O.20, R. 12, R. Civil Procedure Code, which are attracted in a case where the claim for mesne profits is accompanied by a direction for rent or mesne profits, past or future, as held by the Apex Court in cases of Bhagwati Prasad and Amarsingh (supra) but as the preliminary decree rejecting the claim of mesne profits, or a direction for enquiry under O.20, R. 12, Civil Procedure Code has become final, the court has no jurisdiction to award the same in a final decree nor such mesne profits can be awarded in execution. The present case is not a case where the decree simply states that the claim in the suit is decreed with costs and mesne profits, where the plaintiff is entitled to get mesne profits till delivery of possession to him. Moreover, even assuming that in accordance with the provisions of O.20, R. 12, Civil Procedure Code, a direction for enquiry can be made, but in the present case this court hearing on stay passed a direction to deposit Rs. 1000/- per year as the mesne profits vide its order dated 16-2-1983 from the date of the institution of the second appeal till the decision of the appeal and the said amount was ordered to be withdrawn by the respondents, and this is the claim, which the plaintiffs made in the plaint for award of future mesne profits @ Rs. 1000/- per year. In such circumstances, it is not necessary either to exercise the powers under O.41, R. 33, Civil Procedure Code or to pass a direction for holding an enquiry in conformity with the provisions of O.20, R. 12, Civil Procedure Code, more particularly when no interference is made in the appeal and the decree for partial partition is being confirmed. In such circumstances, it is not necessary either to exercise the powers under O.41, R. 33, Civil Procedure Code or to pass a direction for holding an enquiry in conformity with the provisions of O.20, R. 12, Civil Procedure Code, more particularly when no interference is made in the appeal and the decree for partial partition is being confirmed. But a direction is necessary in favour of the respondents that in case, the appellants have not deposited the mesne profits in accordance with the order of this court on stay, the respondents shall be free to realise the said amount from the appellants from the date of the institution of the second appeal till the date of disposal of this appeal. 10. In the result, as I have already held that the appeal has no merit, it is dismissed with costs. Counsel's fee Rs. 750/- if already certified.