VELUTHA KUNJAMMA Vs. JANAKI PARVATHI

JUDGEMENT

(1.) The decree-holder in O. S. No. 3.35 of 19SO of the Munsiff's Court. Chengannur sought recovery of possession of a half share in the plaint schedule property in the suit with mesne profits. The suit was filed by her, alleging that the plaint schedule property belonged to her father and on his death devolved upon her and her mother who was the 30th defendant in the suit. Defendants 1 to 9 who are the children of her father's brother were in possession of the property. The decree allowed her a half share in the property with a direction that she would be entitled to such mesne profits as would be decided in the final decree. In the final decree, mesne profits were fixed at Rs. 1,039.22, but no mention was made as to the persona liable. The decree-holder filed execution petition claiming mesne profits against all the defendants. Thereupon defendants 8 and 20 filed objection. They contended among other things that the plaintiff could be allowed to realise only proportionate amounts from each of the defendants or their legal representatives as the case may be. The executing Court held that the decree was binding on all the defendants and that it could not be spelt out that each defendant was liable only to this proportionate share of profits of the property. An appeal was filed by the 31st defendant challenging the above order. The Additional District Judge. Mavelikkara, allowed the appeal. Since there was no sufficient evidence as to the portion of the property which was in the possession of the appellant or the income thereof, the Court remanded the case for fresh disposal after allowing the appellant to let in evidence regarding the income of the property in his possession. The Second Appeal is preferred against the above order.

(2.) The only point involved in this appeal is whether it is open to the judgment-debtors against whom a decree has been passed for mesne profits to contend in execution that they would be liable only to proportionate amount falling to the shares of the property in their respective possession.

(3.) The Additional District Judge, Mavelikkara, in coming to the conclusion referred to above relied on the decision reported in Gurudas v. Kumar Hemendra, AIR 1929 PC 300. That was a case where three persons A, B and C were co-owners of certain property. This property disappeared under the Ganges but reappeared after considerable period of years. When it reappeared the Government took possession and gave the property to tenants. After some time when B moved for possession of the property, it was released to him; but he allowed the tenants to be in possession. A and C brought a suit for declaration of title and recovery of possession of the property and mesne profits. The claim was decreed with costs and mesne profits. The question involved in the case was the terminus a quo, in regard to mesne profits and also whether B was liable to the actual profits that he would have obtained had he been in possession or only the rent from the land left It was held that A and C were entitled to mesne profits up to their re-admission to tbe land and that mesne profits were to be calculated on what B actually received as rent from the land let as he could not with ordinary diligence have received more. There was no question involved as to how a joint decree for mesne profits should be construed.