SUBBA REDDIAR Vs. HAZRA BIBI

JUDGEMENT

(1.) THIS appeal arises out of the final decree proceedings in a partition action. O. S. No. 138 of 1949 in which the appellant-fifth defendant has been held liable for mesne profits in respect of a portion of a non-residential building which is situate in a centrally located, busy non-residential area in Karur town a reputed wholesale and retail business centre. Mesne profits have been awarded from January 1946 till delivery of possession which took place on 31-1-1964. As regards the quantum, a Commissioner who was appointed investigated into the matter and determined the mesne profits with reference to four distinct periods. The commissioner also took note of the fact that the other portion of the building had been let out by the fifth defendant to one K. C. Venkataraman Chettiar at the rate of Rs. 55 per mensem and this rate has been taken into account by the commissioner in fixing the quantum. After a careful scrutiny of the commissioner's report and the evidence the trial Court fixed the mesne profits at the rate of Rs. 20 per month from 21-1-1946 to 20-1-1949 and at the rate of Rs. 25 per month from 21-1-1949 till delivery of possession in January 1954. The appellant admits his liability for Rs. 2,000 and in this present appeal his complaint is with regard to the excess of Rs. 3,000 odd. Mr. Padmanabhan, learned counsel for the appellant raised two points : (i) that in awarding mesne profits under Order xx, Rule 12, C. P. Code, the maximum period for which the plaintiff could be awarded mesne profits is three years from the date of the decree and that in this case the court should have awarded mesne profits for three years only from 2712-1950, the date of the preliminary decree and the award of mesne profits till january 1964 is illegal and contrary to Order XX, Rule 12, Civil P. C (ii) The quantum fixed by the trial Court is excessive.

(2.) AS regard the quantum, we are satisfied that the liability as determined by the trial Court is correct and fully justified by the evidence on record. It is not in dispute that the property is situate in a centrally located non-residential area in karur town, which is a reputed wholesale and retail business centre. The property had a road frontage and the rates fixed. viz. , Rs. 20 per mensem and Rs. 25 per mensem in such a business centre in Karur town cannot be said to be excessive. As observed already, the appellant has been collecting Rs. 55 pre month from one venkatarama Chettiar in respect of the other portion of the non-residential building, though of a larger area. The appellant has not made out any case for interference with the quantum of mesne profits determined by the trial Court.

(3.) ON the question of the precise scope of Order XX, Rule 12, C. P. Code and the want of jurisdiction of the court in awarding mesne profits for a period exceeding three years, learned counsel relied upon the decision of the Supreme Court reported in Subbanna v. Subbanna, On a careful examination of the decision of the Supreme Court in the light of the particular facts therein, we are not inclined to hold that the aforesaid decision supports the contention of the appellant. All the High Courts, in a uniform course of decision, have taken the view that Order XX, Rule 12, C. P. Code will not apply to a suit for partition and that it is Order XX, Rule 18, Civil P. C. which governs such an action. We are unable to hold that the decision of the Supreme Court referred to above has impliedly overruled uniform course of decisions of all the High Courts. Indeed as will be presently shown a later decision of the Supreme Court reported in Gopalakrishna pillai v. Meenakshi Ayal, shows that far from taking a different view the Supreme Court has expressly referred, with approval, to the Full Bench decision of this court reported in Basavayya v. Guruvayya, 1951-2 Mad LJ 176 = (AIR 1951 Mad 939) (FB), in which it was held that Order XX, Rule 12, Civil P. C. would not apply to a suit for partition and that the claim for mesne profits for the entire period till delivery of possession is awarded by way of appropriate directions at the time of the passing of the final decree under Order XX, Rule 18, Civil P. C. Order XX, Rule 12, sub-rules (1) and (2), Civil P. C. are in these terms :-