APPUKUTTAN Vs. JANARDHANAN

JUDGEMENT

(1.) Revision petitioner is the 8th respondent. A preliminary decree was passed on 5-10-1953 in a suit for partition. Under the decree respondents 1 and 2 and their deceased father are found entitled to 1/3 share each over the properties. Application for passing of the final decree was filed only in 1973 and final decree was passed on 8-7-1977. First respondent was put in possession of his share of the properties pursuant to the order in E.P. 107 of 1977. Under the final decree the deceased father was alone made liable for mesne profits to the first respondent. Father died and the revision petitioner was impleaded as his legal representative as a legatee under a will. Final decree provided for payment of mesne profits from 17-9-1951 onwards till delivery of possession at the rate of 534 paras of paddy per annum.

(2.) Contention of the revision petitioner is that under Order XX R.12(l)(c)(iii) first respondent is entitled only to mesne profits for three years and no period beyond that. It is contended that even if the final decree was not challenged in appeal or corrected position would be the same as Order XX R.12(l)(c)(iii) provides that mesne profits could be granted only for three years and so the first respondent is not entitled to claim any amount beyond the period of three years from the date of decree.

(3.) The short point that arises for consideration is as to whether in a partition suit a sharer is entitled to claim his share of profits for more than three years after the decree. Contention of the respondents is that the petitioner cannot claim share of profits for a period more than three years in view of Order XX R.12. O.XX R.12 enables the Court to pass a decree for past and future mesne profits in a suit for recovery of possession of immovable property. As the partition suit is not one coming under the category of a suit for recovery of possession of immovable property from a trespasser or a person in wrongful possession and as in the partition suit the claim is for share of profits from a sharer in possession. Order XX R.12 has no application. When a partition suit is decreed entitling a sharer to share of property and share of profits from a person in possession of the property, it cannot be held that share of profits cannot be claimed for more than three years on the analogy that mesne profits could be claimed only for three years from the date of decree. The word "mesne profits" defined in S.2(12)C.P.C. means those profits which a person in wrongful possession of such property either actually received or might have received with ordinary diligence. So far as a sharer in a partition suit is concerned it cannot be said that he was wrongfully in possession of the property. Mesne profit is used as a loose term even to take in profits due to a sharer out of possession from the one who has possession. Entitlement of a sharer to the share of profits cannot be limited to three years as in the case of mesne profits due to a decree holder who is entitled to recovery of possession and mesne profits under Order XX R.12.