B N THIAGARAJAN Vs. B N SUNDARAVELU

JUDGEMENT

(1.) THE plaintiffs and the third defendant in O. S. No. 27 of 1957 on the file of the subordinate Judge, Salem are the petitioners,. The plaintiff filed the above suit for partition by metes and bounds into six equal shares of items 1 to 17 in Schedule iii or alternatively to division by metes and bounds of all the items 1 to 59 in schedule II in the plaint plus items 10, 11, and 12 of Schedule III as the case may be into six equal shares and for allotment of one such share to each of the plaintiffs and defendants 1 to 3. The above unfortunate litigation had a chequered career and this litigation has come upto this Court more than four times. The above revision arises out of I. A. 431 of 1965 dated 31-3-1965 in O. S. 27 of 1957 for appointment of a Commissioner for dividing items 1 to 7 of Schedule 2 in the plaint into six equal shares by metes and bounds with reference to good and bad quality and allotment of one such share to the petitioner therein with the necessary appurtenant rights etc. and to ascertain the mesne profits for the one-sixth share in the said items from 29-3-1965 to 1-4-1965 and the first defendant deposited a sum of Rs. 10,000 in pursuance of the compromise decree dated 1-41964 in App. No. 2 of 1960 on the file of the High Court, Madras till the date of delivery of actual possession of the said one-sixth share to the petitioner.

(2.) THE case of the first defendant petitioner is that as per the terms of the compromise decree in the High Court the respondents have taken possession of the land in item 1 of Schedule II which was in the petitioner's possession, that he had deposited Rs. 10,000 in terms of the compromise decree that in accordance with the compromise decree he was entitled to a division by metes and bounds of 1/6th share in items 1 to 7 of schedule II of the plaint that the said 1/6th share has to be ascertained and fixed by the appointment of a Commissioner for that purpose, that till actual delivery is effected of the said 1/6th share the respondents will be liable to pay mesne profits and therefore an enquiry into the quantum has to be made.

(3.) THE respondents filed a counter to the said application stating that they have no objection to a Commissioner being appointed to divide items 1 to 7 as per the compromise decree of the High Court after the sum of Rs. 10,000 is paid to them, that the first defendant is not entitled to recover any mesne profits from the respondents, that most of the lands are lying fallow and some are unfit for cultivation and that in view of the cantankerous attitude of the first respondent the respondents have nor raised any crops in Item 1 which is lying fallow, that the relief as to the enquiry about the quantum of mesne profits was untenable as the decree does not provide for it, that the petitioner is not entitled to costs and that the first defendant is in no way entitled to claim mense profits.