A. NOORJEHAN Vs. KABIR

JUDGEMENT

(1.) The petitioners are respondents 10, 12 and 13 in I.A. No. 546 of 1998 in O.S. No. 630 of 1975 on the file of the Subordinate Judge, Tiruchirappalli. It is a suit for partition. Preliminary decree was passed on 7.2.1978 and final decree was passed on 13.1.992 in I.A. No. 202 of 1978. The third defendant preferred an Appeal before this Court in A.S. No. 128 of 1993 which suffered dismissal. Accordingly, the properties were allotted to the plaintiffs 2 and 3, and 4th defendant. The plaintiffs 2 and 3 and 4th defendant, thereafter, filed an application in I.A. No. 546 of 1998 praying the Court to pass an order for mesne profits by way of accounting payable by the defendants/respondents on the basis of the report filed by the then Advocate Commissioner or to appoint a fresh Commissioner to determine the mesne profits or amount payable by way of accounting by the respondents to the petitioners.

(2.) In the affidavit, it is stated that previously, Thiru. K.S. Narayanan was appointed as Advocate Commissioner to determine the mesne profits. As per the estimate of the petitioners, the defendants are liable to pay Rs. 25 lakhs from 1975 till today as mesne profits. The Court has not passed regarding the amount payable by the defendants by way of mesne profits or accounting.

(3.) In the counter affidavit filed by the respondents, it is alleged that even though preliminary decree and final decree were passed, the relief of accounting or mesne profits was negatived, the matter was taken up to the High Court and the question of availability of mesne profits was not raised and there also the question was not appealed against as to mesne profits and the matter reached a finality, in other words, the relief of accounting or mesne profits was denied. The petitioners did not agitate the matter by way of appeal or review in this regard, and they cannot seek such a relief which was already considered and negatived. By way of this application seeking such relief by alleging that mesne profits would be payable in several lakhs is nothing but a figment of imagination. It is beyond anyone's comprehension that for a small extent of property for any fractional share such huge amount would be determined as mesne profits. The final decree proceedings was terminated long ago and evidently, this application is filed belatedly after the relief was negatived and particularly, the petitioners themselves not having made any specific reservation in that regard, and viewed from any angle, the application is not maintainable. The relief of accounting cannot be equated to mesne profits and what is granted in the preliminary decree being the relief of accounting in the context of termination of proceedings in final decree in the fashion mentioned above. The claim is legally barred. The prayer is misconceived and is inconsistent with the pleadings containing preliminary decree. Hence, the petition may be dismissed.