ERIAH Vs. BASAPPA ALIAS MALLAIAH

JUDGEMENT

(1.) This second appeal is by a plaintiff. The suit is for partition of the suit properties and possession of his share therein. He also claimed mesne profits. The Munsiff decreed the suit. In the first appeal preferred by defendant 1, the learned Civil Judge modified the decree of the learned Munsiff by disallowing the past mesne profits granted by the learned Munsiff.

(2.) The plaintiff and defendant 1 purchased separately undivided interest of two coparceners of a joint family in the properties of that family. The purchase by defendant 1 was earlier and he was in possession of the whole of those properties. Though the plaintiff purchased on 29-7-1958 the undivided interest of another coparcener in those properties, he brought the suit only on 15-5-1965. It has not been disputed that he had issued any notice to defendant 1 demanding a partition of those properties. His claim for mesne profits is on the ground that defendant 1 had unjustifiably excluded him (the plaintiff) from joint possession of the suit properties. In this appeal, Mr. N. Bhimacharya, learned Counsel for the appellant, contended that the plaintiff was entitled to be in joint possession of the suit propertiea along with defendant 1 and his being excluded by defendant 1 from such joint possession, entitled him to mesne profits. As laid down in Trimbak v. Pandurang AIR, 1920 Bom. 103. if a stranger purchases the undivided interest in the joint family properties, he is not entitled to joint possession of those properties along with the non alienating coparceners; he has to bring a suit for partition by metes and bounds of those properties; until he brings such suit he is not entitled to mesne profits as against the non-alienating coparceners.

(3.) But there is no decided case in which the question whether two independent purchaesrs of undivided interests of two different coparceners in joint family properties have a right to be in possession of those properties and whether the purchaser who is excluded from such joint possession is entitled to ask for mesne profits prior to his bringing a suit for partition. It appears to me that two strangers who purchase from two different coparceners of that family their undivided interests separately, cannot claim to be in joint possession of the erstwhile joint family properties, because there is no community of interest or agreement for joint possession. They have to divide those properties by metes and bounds either by mutual agreement or by bringing a suit for partition. Until that is done, neither of them can claim to have a right of joint possession with the other Hence, the view taken by the learned Civil Judge that the plaintiff was not entitled to mesne profits prior to the date of the suit is correct and does not call for interference