Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 4098 (MAD)

A. Noorjehan v. Kabir

2012-10-03

S.PALANIVELU

body2012
Judgment :- 1. The petitioners are respondents 10, 12 and 13 in I.A.No.546 of 1998 in O.S.No.630 of 1975 on the file of the Subordinate Judge, Tiruchirappalli. It is a suit for partition. 2. Preliminary decree was passed on 7.2.1978 and final decree was passed on 13.1.992 in I.A.No.202 of 1978. The third defendant preferred an Appeal before this Court in A.S.No.128 of 1993 which suffered dismissal. Accordingly, the properties were allotted to the plaintiffs 2 and 3, and 4th defendant. The plaintiffs 2 and 3 and 4th defendant, thereafter, filed an application in I.A.No.546 of 1998 praying the Court to pass an order for mesne profits by way of accounting payable by the defendants/respondents on the basis of the report filed by the then Advocate Commissioner or to appoint a fresh Commissioner to determine the mesne profits or amount payable by way of accounting by the respondents to the petitioners. 3. In the affidavit, it is stated that previously, Thiru. K.S .Narayanan was appointed as Advocate Commissioner to determine the mesne profits. As per the estimate of the petitioners, the defendants are liable to pay Rs.25 lakhs from 1975 till today as mesne profits. The Court has not passed regarding the amount payable by the defendants by way of mesne profits or accounting. 4. In the counter affidavit filed by the respondents, it is alleged that even though preliminary decree and final decree were passed, the relief of accounting or mesne profits was negatived, the matter was taken up to the High Court and the question of availability of mesne profits was not raised and there also the question was not appealed against as to mesne profits and the matter reached a finality, in other words, the relief of accounting or mesne profits was denied. The petitioners did not agitate the matter by way of appeal or review in this regard, and they cannot seek such a relief which was already considered and negatived. By way of this application seeking such relief by alleging that mesne profits would be payable in several lakhs is nothing but a figment of imagination. It is beyond anyone's comprehension that for a small extent of property for any fractional share such huge amount would be determined as mesne profits. By way of this application seeking such relief by alleging that mesne profits would be payable in several lakhs is nothing but a figment of imagination. It is beyond anyone's comprehension that for a small extent of property for any fractional share such huge amount would be determined as mesne profits. The final decree proceedings was terminated long ago and evidently, this application is filed belatedly after the relief was negatived and particularly, the petitioners themselves not having made any specific reservation in that regard, and viewed from any angle, the application is not maintainable. The relief of accounting cannot be equated to mesne profits and what is granted in the preliminary decree being the relief of accounting in the context of termination of proceedings in final decree in the fashion mentioned above. The claim is legally barred. The prayer is misconceived and is inconsistent with the pleadings containing preliminary decree. Hence, the petition may be dismissed. 5. The learned Subordinate Judge, without touching the merits of the matter, only considered the arguments of both sides and simply passed the order appointing the Advocate Commissioner Mr. P.R. Namasivayam, to fix the mesne profits and directed him to file a report by 21.11.03. This is the order which is challenged before this Court. 6. Point for consideration:- Whether the plaintiffs 2 and 3 and the fourth defendant in the suit are entitled to get the relief of payment of mesne profits as prayed for by them? 7. Point: Neither of the parties produced copies. However, it is found in the preliminary decree that defendants 1 to 3 are liable to render accounts for the property in item 1 -B Schedule. 8. The learned counsel for the petitioners, Mr. Vinayak, who contends that inasmuch as plaintiffs 2 and 3, and 4th defendant have not applied for mesne profits, their right is barred by Order 20, Rule 18 CPC. His contention is that even in the course of trial, they did not ask for or pray for mesne profits and that the final decree was passed 5 years before I.A.No.546 of 1998 came to be filed and that the claim of the claimants is barred by limitation. 9. Per contra, learned counsel appearing for the respondents 1 to 4 and 7, Mr. 9. Per contra, learned counsel appearing for the respondents 1 to 4 and 7, Mr. R. Sundar would submit that passing of preliminary decree or final decree will not prevent grant of mesne profits and that the Court has got every competency to direct ascertainment of mesne profits, for that claimants are not estopped from claiming mesne profits and there is no legal bar for them to claim mesne profits. In support of his contention, the learned counsel for the respondents relied on Babburu Basavayya and others v. Babburu Guravayya & another [A.I.R. (38) 1951 Madras 938] wherein it is observed that even after passing of the preliminary decree, it is open to the Court to give appropriate directions regarding all or any of these matters either suo motu or on the application of the parties and that Order 20 Rule 18 does not prohibit the Court from issuing such direction after the said preliminary enquiry. It is profitable to extract the provision of Order 20 Rule 12 CPC which reads as under: "12. Decree for possession and mesne profits -(1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree- (a) for the possession of the property: (b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent; (ba) for the mesne profits or directing an inquiry as to such mesne profits (c) directing an inquiry as to rent or mesne profits from the institution of the suit until- (i) the delivery of possession to the decree-holder, (ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or (iii) the expiration of three years from the date of the decree, whichever event first occurs. (2) Where an inquiry is directed under clause (b) or clause (c) a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry. (2) Where an inquiry is directed under clause (b) or clause (c) a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry. HIGH COURT AMENDMENT (MADRAS): Add the following to R.12: "(3) Where an Appellate Court directs such an inquiry, it may direct the Court of first instance to make to the inquiry; and in every case the Court of first instance may of its own accord, and shall whenever moved to do so by the decree- holder inquire and pass the final decree." As per sub-rule (1)(c)(iii) of Order 20, a party has to apply for mesne profits within 3 years from the date of passing final decree. Further, it is also well settled that there shall be no claim of mesne profits after the date of final decree. 10. A Division Bench of this Court in Gnanaprakasa Mudaliar and 2 others v. Anandathandavan [1999-2-L.W.136], has held that 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. It is also held that 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. The learned Judges have taken discussion under Paragraphs 18, 19, and 20 as follows:- "18. We are in agreement with the view taken by the earlier Full Bench of this Court in Babburu Basavayya v. Babburu Guruvayya (AIR 1951 Madras 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. 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. 20. Admittedly in this case the respondents have filed the application for the mesne profits nearly six years after taking delivery of their share of the property pursuant to the final decree. The final decree in the suit is not before the court to ascertain as to whether it provides for mesne profits subsequent to the date of the final decree. As the respondents already took possession of their share of the property pursuant to the final decree, the application filed by them for the mesne profits is not maintainable and as such the Second Appeal has to be allowed. There is no other question involved in the Second Appeal to be decided and as such there is no need to send the Second Appeal back to the learned single Judge. Accordingly, the Second Appeal shall stand allowed." The learned Judges have also referred to the earlier Full Bench decision of this Court on this subject in the case of Babburu Basavayya v. Babburu Guruvayya cited supra. 11. In Ponnuswami Udayar and another vs. Santhappa Udayar and others [ AIR 1963 Mad 171 ], it is considered by this Court that application for ascertaining future mesne profits can be filed so long as suit is pending and final decree has been passed even though plaint itself did not provide for such relief. In a suit for partition, mesne profit is part and parcel of corpus of property allotted to successful plaintiff. It is unjust and illegal to compel plaintiff to sue separately for future mesne profits. 12. In a suit for partition, mesne profit is part and parcel of corpus of property allotted to successful plaintiff. It is unjust and illegal to compel plaintiff to sue separately for future mesne profits. 12. In a decision of this Court in P.Poonammal and others v. Mrs.Kanakavalli Srinivasan and another, [1998 (II) MLJ 18] rendered by Srinivasan, J, ( as His Lordship then was), it is observed in Paragraph No.8 as follows:- "There is no substance in the contention of learned counsel for the appellants that the application for ascertainment of mesne profits is barred by limitation, or that it is not maintainable as there is no provision therefore in the preliminary decree. It is really a misnomer to call it mesne profits. The decree-holders seek to have an account of the income from the property under Or.20, R.18, Code of Civil Procedure and it is not an application under Or.20, R.12, Code of Civil Procedure. The law is well settled and it is too late in the day to question the right of a co-sharer in a partition suit to apply for ascertainment of the income pertaining to his share after the passing of a preliminary decree for partition. It is not necessary to refer to any authority other than that of a Full Bench of this Court in BABBURU BASAVAYYA v. BABBURU GURUVAYYA (1951) 2 M.L.J.176: 64 L.W.669: A.I.R.1951 Mad.938: 1951 M.W.N. 576: I.L.R.1952 Mad.173. The following propositions laid down by the Full Bench are apposite:- "A partition suit in which a preliminary decree has been passed is still a pending suit and the right of the parties have to be adjusted as on the date of the final decree: JADA NATH RAY v. PARAMESWAR MALLIK, I.L.R (1940) I Cal.255 (P.C.)." 13. As per proposition in the judgments cited above, the following points emerge:- (i) When there is no prayer in the plaint, it is not open for the Court to provide direction for mesne profits. (ii) Mesne profits can be claimed even after the passing of preliminary decree but after the passing of the final decree, there can be no claim for mesne profits. (iii) Mesne profits can be claimed only for 3 years from the date of passing of final decree and beyond that there can be no provision for ascertainment of mesne profits. 14. (iii) Mesne profits can be claimed only for 3 years from the date of passing of final decree and beyond that there can be no provision for ascertainment of mesne profits. 14. As far as the case on hand is concerned, final decree was passed on 13.1.1992 in I.A.No.202 of 1978 and A.S.No.128 of 1993 was also dismissed. The limitation period for claiming mesne profits is three years from the date ofdisposal of appeal. The present claim made by the plaintiffs 2 and 3 and the defendant No.4, after the lapse of 3 years from the date of disposal of the appeal and the same is clearly barred by time. In such view of this matter, it is held that the claimants are not entitled to the relief of ascertainment of mesne profits. Hence, the order challenged before this Court is liable to beset aside and it is, accordingly, set aside. 15. In fine, the Civil Revision Petition is allowed.Consequently,connected Miscellaneous Petition is closed. No costs.