S. K. DUBEY, J. ( 1 ) THIS is defendant's second appeal against the judgment and decree dated 28-3-1981, passed by the Second Additional District Judge, Vidisha, in Civil Appeal No. 37-A/ 80, preferred against the judgment and decree dated 10-4-1980, passed in Civil Suit No. 28-A/ 1976 by the Civil Judge, Class I, Vidisha. ( 2 ) BRIEF facts giving rise to this appeal are these. The plainiffs / respondents Nos. l and 2, instituted a suit against the appellant and his brother Onkar Prasad, for possession, permanent injunction and for recovery of mesne profits relating to suit land, area 24. 250 hectares, described in para 1 of the plaint on the averment that originally the suit land was part of the joint holding of the two defendants in equal share. Appellant Bhagwati Prasad sold his share by a registered sale-deed dated 29-8-1970 to Trimbak Rao for a consideration of Rs. 900/ -. Trimbak Rao, in turn, sold the land so purchased to the plaintiffs vide sale-deed dated 17-8-1971. The plaintiffs are the Bhumiswamis who applied before the Tahsildar for partition of the land purchased from the joint holding under S. 178 of the M. P. Land Revenue Code, 1959, for short, the Code (Revenue Case No. 18 / A-27-72-73), wherein, after notice to the defendant, ex parte order was passed against Bhagwati Prasadon 2-5-1974, certified copy of which is Ex. P/2. In another proceeding by the plaintiff for possession of sspecific area against Onkar Prasad, the brother of the plaintiff (Case No. 16a-27/75-76), the Tahsildar passed an order on 13-9-1976 (Ex. P/ 1) of partition as both the brothers were in possession of the land, directed that symbolic possession specifying the area purchased be given to purchaser. During the pendency of the proceedings of partition against Onkar Prasad, the appellant instituted a suit for declaration and permanent injunction against Trimbak Rao and present respondents that the sale-deed dated 29-8-1970 is not an out and out sale, but a security for loan advanced. That suit was dismissed. Against that, an appeal was filed which was also dismissed on 13-10-1978 by the District Judge, Vidisha, certified. copy of which is Ex. P/5, holding that sale in favour of Trimbak Rao was an absolute sale and, observed that the purchasers of Trimbak Rao can get possession of the land only after proceeding for partition under S. 178 of the Code. copy of which is Ex. P/5, holding that sale in favour of Trimbak Rao was an absolute sale and, observed that the purchasers of Trimbak Rao can get possession of the land only after proceeding for partition under S. 178 of the Code. ( 3 ) IN the present suit, the defendant No. 2, Onkar Prasad, remained ex parte, while appellant defendant No. 1 contested the suit on various grounds. The trial Court held that the plaintiffs are entitled for actual possession of the suit land as per partition effected under S. 178 of the Code. In so far as the mesne profits are concerned, the trial Court found that till the date of effective partition by symbolic possession, i. e. , 2-5-1976, plaintiffs are not entitled to mesne profits. However, mesne profits at the rate of Rs. 3,000/- per annum were granted from 2-5-1976. Aggrieved of this judgment and decree, the plaintiffs as well as defendant, preferred appeal. The First Appellate Court, while allowing the appeal of the plaintiffs for claim of mesne profits from 2-5-1974, dismissed the appeal of the defendant. Hence, this second appeal which was admitted by this Court on the following substantial questions of law :" (1) Whether the plaintiffs' case is premature filed without partition in pursuance of judgment and decree dated 19-1-1976 passed in C. S. No. 9-A/74 ? (2) Whether any partition before the judgment and decree dated 19-1-1976 passed in prior C. S. No. 9-A/74 is effective, when no partition is found in the case ? (3) Whether the purchaser is entitled to any mesne profits before the decree dated 19-1-1976 in C. S. No. 9-A/74 declaring his share ? (4) Whether civil Court has no jurisdiction and is barred for looking correctness of the proceedings under S. 178, M. P. L. R. Code ? (5) Whether the suit is bad for non joinder of necessary parties ?" ( 4 ) SHRI Arun Mishra, counsel for the appellant and Shri N. K. Jain, counsel for the respondents were heard. Both counsel also filed their written submissions. (5) Whether the suit is bad for non joinder of necessary parties ?" ( 4 ) SHRI Arun Mishra, counsel for the appellant and Shri N. K. Jain, counsel for the respondents were heard. Both counsel also filed their written submissions. ( 5 ) FIRSTLY, it was contended that the plaintiffs were not entitled for a decree for possession without seeking an order for partition under S. 178 of the Code and, particularly when in the previous suit, instituted by the appellant; no effective partition was found it was observed therein that the plaintiffs can obtain possession only after applying for partition. Therefore, the ex parte order of partition prior to the decision of the civil suit has no effect and on principles of res judicata, plaintiffs were not entitled to institute the suit for possession before obtaining an order under S. 178 of the Code as the law is well settled that a purchaser from a co-parcener has no right of possession, either exclusive or joint. His only right is to sue for partition as he is not the tenant-in-common with other members of the joint holding. If was also contended that the civil Court has no jurisdiction to give possession of agricultural holding pursuant to partition. It is only Revenue Court which has jurisdiction. Even if for argument's sake, it is accepted that the plaintiffs obtained an order of partition and symbolic possession, the ex parte order against the plaintiffs and appellant was ineffective, null and void as the appellant was not duly served. The proceedings for partition and symbolic possession were fake. The learned counsel cited a catena of decisions to support the contention which will be referred to later at the appropriate stage. ( 6 ) THE first question which arises in the case is whether the suit of the plaintiffs was premature when partition pursuant to judgment and decree in the case dated 19-1-1976 passed in Civil Suit No. 9-A of 1974 and the judgment of that suit observing that without partition, the plaintiffs cannot obtain possession is binding ? ( 7 ) THE law is well settled that a purchaser of the share of the joint family property is entitled on partition of the share to which the alienator was entitled on the date of alienation. It is also well settled that the purchaser has no right of possession, either exclusive or joint. ( 7 ) THE law is well settled that a purchaser of the share of the joint family property is entitled on partition of the share to which the alienator was entitled on the date of alienation. It is also well settled that the purchaser has no right of possession, either exclusive or joint. His only right is to sue for partition as he is not tenant-in-common with other members. Therefore, the suit land being an agricultural holding, the purchaser of a share of a holding of a co-bhumiswami has to apply for partition under S. 178 of the Code before the Tahsildar, as every joint holder is entitled for partition. If any dispute is raised relating to title, certainly under S. 178 (1), the Revenue Court will have no jurisdiction to make partition nor can it decide the genuineness or otherwise of the question. In that case, the Tahsildar should stay the proceeding for a period of three months to facilitate the institution of the civil suit for determination of the question of title. See, the Division Bench decision of this Court in the case of Patiram v. Board of Revenue, (1968 0 RN 158 ). However, under sub-sec. (1-A) of S. 178, if a civil suit is filed within the period specified in the proviso to sub-sec. (1) and stay order is obtained from the Civil Court, the Tahsildar shall stay his proceedings pending the decision of the Civil Court. If no civil suit is filed within the period specified, he shall vacate the stay order and proceed to partition, the holding in accordance with the entries in the records of the rights and after hearing the co-tenureholders, divide the holding and apportion the assessment of the holding in accordance with the rules made under the Code. ( 8 ) IT is not in dispute that the purchasers instituted the proceedings for partition wherein the defendant instead of contesting the proceedings, chose to remain ex parte and instituted the suit for declaration that the sale was not an out and out sale, but was a loan transaction. In that case, in the plaint, a certified copy of which is on record, it was admitted by the defendants (plaintiffs in that suit) that the partition was effected by the Tahsildar which came to his notice on 30-6-1974. In that case, in the plaint, a certified copy of which is on record, it was admitted by the defendants (plaintiffs in that suit) that the partition was effected by the Tahsildar which came to his notice on 30-6-1974. That suit was dismissed, wherein the trial Court observed that the plaintiffs can obtain possession only after partition, against this finding there was no appeal hence, that finding having become binding in-between parties amounting to res judicata, hence, it was submitted that after the decision in the Civil Suit (No. 9-A/74) in the year 1976, the plaintiffs were bound to proceed under S. 178 of the Code. ( 9 ) IN the opinion of this Court, the submission has no merit, as that finding will not be binding nor will it operate as res judicata. It is well settled that when a suit is dismissed, against a party and a finding is recorded, not affecting the decree in favour of a party, such party is not competent to file an appeal under S. 96 of the C. P. C. against the decree on the ground that an issue is found against him. See, case of Smt. Gangabai v. Vijay Kumar ( AIR 1974 SC 1126 ) and Commissioner, Calcutta Port v. Bhairadinram ( AIR 1961 Cal 39 (FB); Madras Corporation v. P. R. Ramchandriah ( AIR 1977 Mad 25 ); Banarasi v. Bhagwanlal ( AIR 1977 Pat 206 ) and a recent decision, rendered by and in the case of Mahila Badami v. Jagannath (Second Appeal No. 72 of 1977, decided on 18-5-1994 ). ( 10 ) IT has also come on record and is evident from para 12 of the judgment impugned, that against the order of symbolic possession passed by the Tahsildar, an appeal was preferred which was dismissed on 13-9-1976 (Ex. P/ 1 ). The defendant did not challenge the validity of the partition either in his suit decided on 19-1-1976 (Ex. P/8) or by appropriate proceedings before the Tahsildar or in appeal Court. Moreover, from the decision on issue No. 10 which has been dealt with in paras 17 and 18 of the judgment (Ex. P/ 1 ). The defendant did not challenge the validity of the partition either in his suit decided on 19-1-1976 (Ex. P/8) or by appropriate proceedings before the Tahsildar or in appeal Court. Moreover, from the decision on issue No. 10 which has been dealt with in paras 17 and 18 of the judgment (Ex. P/ 8), it is clear that the defendant did not raise any objection about the invalidity of the proceedings before the Tahsildar as he apprehended that on making objection, his land may attract the provisions of the M. P. Ceiling on Agricultural Holdings Act, 1960. Moreover, while deciding the said issue, the Court has not declared the proceedings of partition as illegal. However, in deciding issues Nos. 1, 2 and 8, the Court observed in para 30 of judgment that as there is joint possession, the present plaintiffs can obtain possession only after partition. As the partition has been ordered of the holding, the symbolic possession was given to the plaintiffs and the proceedings for partition having not been declared illegal and void, it cannot be contended by the defendant appellant that after the finding in earlier civil suit, the plaintiffs were bound to initiate fresh proceedings for partition. ( 11 ) COMING to the question of mesne profits, though the appellate Court has held that as the order of partition was made by the Tahsildar on 22-5-1974, the plaintiffs / respondents are entitled for mesne profits from that date, but that finding is not correct because the order of giving symbolic possession was passed on 13-9-1976, by the Tahsildar and thereafter, the symbolic possession was given, in view of this, the plaintiffs would be entitled to mesne profits only from that date and not from the date of order of partition. The law is well-settled that a purchaser of interest of coparcenary is not entitled to mesne profits from the date of his purchase and the date of the suit for partition as he can work out mesne profits from the date when the specific allotment of the property is made in his favour. See, Article 261 of Mulla's Hindu Law, Fifteenth Edition, p. 347 and Siddheshwar Mukherjee v. Bhubaneshwar Prasad, 1954 SCR 177 ( AIR 1953 SC 487 ) and Manikayala Rao v. Narasimhaswami ( AIR 1966 SC 470 ). See, Article 261 of Mulla's Hindu Law, Fifteenth Edition, p. 347 and Siddheshwar Mukherjee v. Bhubaneshwar Prasad, 1954 SCR 177 ( AIR 1953 SC 487 ) and Manikayala Rao v. Narasimhaswami ( AIR 1966 SC 470 ). ( 12 ) IT is not a suit where the plaintiffs claim relief of partition of agricultural land. In that situation, civil Court has only power to declare the shares of the parties and no other power. After exercising that power, the Court becomes functus officio. After declaration, the papers are to be sent to the Revenue Authority for effecting actual position of such party who has been granted declaration has to approach under S. 178 of the Code for partition. Therefore, the decisions relied by Shri Mishra in Mst. Hironda v. Mst. Anti (1970 0 MPLJ 91) and Bhagwan Singh v. Babu Shiv Prasad ( AIR 1974 MP 12 ) in support of the contention that in a suit for partition of agricultural land, the civil Court has only to declare the share of the parties and no other thing can be declared in the matter, have no application. As said earlier, the plaintiffs instead of filing a suit for declaration of their share, after purchase, applied under S. 178 of the Code wherein no dispute relating to title was raised and the partition was ordered. Thereafter, symbolic possession was given. Then, the plaintiffs instituted the suit for possession and mesne profits as the defendant / appellant is in occupation of the land wrongfully and unauthorisedly. ( 13 ) THE contention that the civil Court has no jurisdiction to give possession of agricultural holding pursuant to partition and it is only Revenue Court which has jurisdiction, is raised for the first time before this Court in second appeal, as submitted by Shri N. K. Jain, learned counsel for respondents. However, as the jurisdictional point has been raised, it is allowed. However, as the jurisdictional point has been raised, it is allowed. The suit of the plaintiffs is not for the partition of the agricultural holding, but the plaintiffs, after getting order of partition from the Revenue Court under S. 178 of the Code and also symbolic possession of allotment of specific area and the defendant in spite of dismissal of his suit, has not handed over the possession and is occupying the field wrongfully and illegally without any interest, therefore, such a suit for possession and mesne profits, based on title is maintainable and such suit is not barred under Ss. 250 and 257 (x) of the Code. That is the settled view. See, the Full Bench decision of this Court in the case of Ramgopal v. Chetu (1976 Jab LJ 278 ). ( 14 ) NO arguments were advanced on Question No. (5 ). ( 15 ) IN the result, there is merit in the claim, however, the appeal is partly allowed relating to the claim of mesne profits. The plaintiffs are denied mesne profits till 13-9-1976 till the symbolic possession was given to the plaintiffs on 13-9-1976. In the circumstances of the case, the parties are directed to bear their own costs. Appeal partly allowed. .