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2003 DIGILAW 1566 (MAD)

Susainathan v. Maniyasaram and others

2003-09-30

S.K.KRISHNAN

body2003
ORDER: The civil revision petition is directed against the fair and decretal order dated 19.3.2002 passed in I.A.No.1646 of 2000 in O.S.No.17 of 1996 on the file of the Principal District Munsif, Ulundurpet. 2. The revision petitioner is the plaintiff in O.S.No.17 of 1996. The plaintiff has instituted a suit against the defendants for separate possession of the suit properties. After contest a preliminary decree was passed by the learned Principal District Munsif, Ulundurpet on 30.10.1998. Thereafter, the plaintiff, filed a petition in I.A.No.1618 of 1999 for passing final decree. While the said petition was pending before the said Court, the plaintiff has filed one another petition in I.A.No.1646 of 2000 wherein he sought for an appointment of Commissioner for inspecting the suit properties in item 1 and 2 and also enquire the petitioner and his witnesses and fix the mesne profits at Rs.5,19,420 and to file a report by the defendants. 3. The respondents 1 to 5 and the respondents 6 to 7 have filed their counter separately. After enquiry, the learned Principal District Munsif, Ulundurpet, dismissed the petition on 19.3.2002. As against the fair and decretal order passed by the learned Principal District Munsif, present revision petition has been filed. 4. Now the point to be decided in this petition is whether the fair and decretal order passed by the learned Principal District Munsif, in I.A.No.1646 of 2000 in O.S.No.17 of 1996 is sustainable under law. 5. It is seen from the preliminary decree, wherein it is stated that mesne profits could be determined in a separate petition. It is an admitted fact that the revision petitioner/plaintiff filed the petition for passing final decree and the same is pending before the said Court. Meanwhile, the plaintiff claiming mesne profits to the tune of Rs.5,19,420 filed another petition in I.A.No.1646 of 2000 before the said Court. 6. It could be seen that the revision petitioner/plaintiff filed a detailed sworn affidavit and gave an elaborate account regarding the income derived from the landed properties. Since the revision petitioner/plaintiff is entitled to claim half amount of the mesne profits, he claimed a sum of Rs.5,19,420 towards mesne profits. The mesne profits is covering the period from 1996 to 2000. The said petition was vehemently contested by the respondents. 7. Since the revision petitioner/plaintiff is entitled to claim half amount of the mesne profits, he claimed a sum of Rs.5,19,420 towards mesne profits. The mesne profits is covering the period from 1996 to 2000. The said petition was vehemently contested by the respondents. 7. According to the respondents 1 to 5, it is pointed out that the said petition is not maintainable for the reason that the petition claiming profits could be filed only after passing the final decree. 8. According to the defendants 6 and 7, as per the preliminary decree mesne profits could be decided only after the delivery of the property. That is after passing the final decree. It is pointed out that the petition seeking final decree is itself pending before the said Court. 9. In such circumstances, the present petition can be filed only after disposal of the petition in I.A.No.1618 of 1999. It is stated that as per the adangal extract for the fasali 1405, 1406, 1407, 1408 and 1409, the revision petitioner/plaintiff and the first respondent have been in possession and enjoyment of the suit properties. 10. Under such circumstances, the respondents are not liable to pay any mesne profits to the petitioner. It is further contended that for claiming such mesne profits the petitioner has not filed any documentary evidence with regard to the lease portion from the suit properties. 11. In this juncture the learned counsel appearing for the revision petitioner vehemently contends that mesne profits from the suit property can be claimed even prior to the passing of final decree. This legal position is clearly made out in the following decisions. In support of his contention, the learned counsel strongly relied on the following decisions: (a) In Duraisamy v. S.Simon, (1998)1 M.L.J. 51 : (1998)3 L.W. 767 , this Court held thus: “The principle is that there must be a finality for every suit. This legal position is clearly made out in the following decisions. In support of his contention, the learned counsel strongly relied on the following decisions: (a) In Duraisamy v. S.Simon, (1998)1 M.L.J. 51 : (1998)3 L.W. 767 , this Court held thus: “The principle is that there must be a finality for every suit. Normally, partition suits are decided at two stages and there is also scope for passing of more than one final decree and issuing directions after the final decree is also passed, but unless there is an indication at the time of passing of the final decree that something more has to be done after passing of the final decree, the final stage is reached in the suit for partition when the final decree is passed.” (b) In Gnanaprakasa Mudaliar and two others v. B.Anandathandavan and others, (1999)2 C.T.C. 6 (F.B.), the Full Bench of this Court held as follows: “18. We are in agreement with the view taken by the earlier Full Bench of this Court in Babburu Basavayya v. Rabburu Guruvayya, A.I.R. 1951 Mad. 938, that till the final decree is passed, the Court is empowered to grant the relief of mesne profits. Once the final decree is passed, thereafter it is not open to the Court to grant the relief of mesne profits, the simple reason being that the final decree is the one which is to be executed. It is well known fact that the executing Court cannot go beyond the decree. 19. For the foregoing reasons, we answer the question referred to the Full Bench as follows: In a partition action, the lis gets terminated for all purposes at the time of passing of the final decree even with regard to the future mesne profits and as such it is not open to the parties to claim the relief of mesne profits beyond the date of passing of the final decree, unless the final decree provides for such relief.” 12.Per contra, the learned counsel for the respondent pointed out that for claiming mesne profits the revision petitioner/plaintiff has not adduced satisfactory evidence and produced the relevant documentary evidence for establishing their claim. 13. 13. On a perusal of the fair and decretal order it reveals that the learned Principal District Munsif dismissed the said petition on the ground that the petitioner has not produced any document in respect of income derived or the crops that were planted. That apart, the learned Principal District Munsif has stated that for allowing the said petition the learned counsel for the petitioner has not put forth any valid reasons. 14. In the light of the discussions held above and also considering the legal principles laid down in the above stated decisions, this Court is of the view that the order passed by the learned principal District Munsif in I.A.No.1646 of 2000 in O.S.No.17 of 1996 is not at all sustainable under law. In such circumstances the said order is liable to be set aside. Accordingly, the same is set aside. 15. In result, the revision petition is allowed. No costs.