THAKUNADU NARAYNDAS DARBAR Vs. KHALILULLA SAHEB ABASHEB JANVEKAR

JUDGEMENT

(1.) In this second appeal, the question which arises for decision is whether the plaintiff, who is the respondent, was rightly awarded mense profits for a period of thirteen years preceding of the propertied belonging to him.

(2.) The brief history of this case is as here under : One Khupsa and his brother Abasaheb were the owners of properties of which they were tenant- in - common. They were members of a Mohammandan family. In O.S. 73/24 in the court of the civil judge, Bijapur, Abasaheb's share in the property was sold in execution of a decree and purchased by the defendant. In O.S. 299/28 in that Court, one Jainama who was another cosharer brought a suit for partion of her share of the property against the defendant who had purchased Abasaheb's share in the property. On July 29, 1930, a decree was made in favour of Jainama for partition and possession of her 7/38 share. Jainama died during the pendency of the further proceedings and in the year 1936 the plaintiff, who is the son of Abhasaheb, was brought on record as the legal representative of Jainama. On January 26, 1937 the decree made in favour of Jainama was confirmed by the High Court Of Bombay. On September 12, 1940, the plaintiff who brought himself on record as the legal representative as Jainama, made an application for the ascertainment of mense profits. The defendant resisted that application on the ground that the plaintiff had no title to the property. He also urged other grounds to which it would not be necessary to refer. In the year 1944 the Court determined the mense profits payable to the plaintiff at Rs. 750/-. Those were the mense profits payable till the year 1940. From the order, First Appeal 259/44 was preferred by the defendant in the High Court of Bombay. There was an order of remand in that appeal and ultimately after the matter came back to the High Court of Bombay, it was decided on July 18, 1952 along with a second appeal arising out of O.S. 83/48 in which the defendant challenged the validity of the decree in O.S. 299/28 in which Jainama obtained a decree of partition of her 7/36 share in the properties. It is thus clear that it was only on July 18. 1952 that there was a final adjudication by the High Court of Bombay that the plaintiff was entitled to the 7/36 share.

(3.) It was thereafter, on April 21, 1953 that the plaintiff was able to obtain possession of 7/36 share in the property to which he had become entiled. After obtaining such possession he brought the suit out of which the second appeal arises for the recovery mense profits from the defendant. That suit was instituted on July 8, 1953. In that suit, he claimed mense profits for a period of thirteen years preceding the suit.