GOVINDARAJA ODAYAR Vs. ADMIMOOLA ODAYAR

JUDGEMENT

(1.) THE only question arising in this Civil revision petition filed by the defendant, is whether the Court below was right in entertaining an application filed by the petitioner in a suit, for determination of future mesne profits. THE suit brought by the plaintiff in the first instance was one for a declaration and injunction in respect of three items of nanja land. Later he suitably amended the plaint and asked for an alternative relief by way of possession. THE suit was decreed in favour of the plaintiff and possession was granted to him. THE defendant appealed against the decree and failed both in the first appellate Court and in this Court in second appeal. THE second appeal was disposed of on 8th January, 1976. Subsequently, in 1978 the plaintiff filed an application before the trial Court for determination of the future mesne profits. This application purported to be under Order 21, rule 12. THE defendant opposed the application on the ground that there was no claim in the suit for payment of mesne profits, nor was there any decree for mesne profits at any stage.

(2.) THE learned District Munsif, however, overruled the defendant's objections and directed an enquiry into the future mesne profits.

(3.) ANOTHER case which was relied on by the Court below supporting its conclusion was R. S. Madanappa v. Chandramma 1. This case also is not authority for the decision of the Court below. In this case, that was a suit for partition of a half share of the family properties and separate possession thereof the plaintiff also claimed a relief by way of award of past mesne profits. The only question in that case was when the plaintiff had not asked for future mesne profits as a specific claim in the plaint, whether the court in passing a decree had power to order an enquiry into future mesne profits. The Supreme Court had to deal with the contention that mesne profits cannot be awarded to a successful party to a suit for possession, unless a claim was made in respect of them. Lealing with this contention, the Supreme court observed as follows:' 'the learned counsel is right in so far as mesne profits prior to the suit are concerned, but in so far as mesne profits subsequent to the date of the institution of the suit, that is future mesne profits are concerned, the position is governed by Order 20, rule 2, Civil procedure Code.' The Supreme Court proceeded to hold that that case, the plaintiff did claim not only partition and separate possession of had share of the properties, but also past mesne profits, and in that view, they upheld the decree of the Court below ordering an enquiry into future mesne profits This case again cannot be regarded as an authority for the position that, even without any prayer for mesne profits in a suit for possession the Court has power suo motu to pass a decree directing an enquiry into future mesne profits.