AVUDAITHANGAMMAL Vs. PECHIMUTHUPANDIA THEVAR DIED

JUDGEMENT

(1.) THESE two second appeals are by the plaintiff in O. S. No. 4 of 1969 on the file of the District Munsif, Tenkasi. In the said suit, the plaintiff got the decree for partition and separate possession of her half share and for'mesne profits'thereof. The said decree was confirmed in the first appeal A. S. No. 177 of 1970 on the file of the Sub Court, Tirunelveli and also by this court in S. A. No. 14 of 1973. Subsequently, the plaintiff filed the present interlocutory applications out of which these second appeals have arisen. In i. A. No. 1443 of 1973 the plaintiff claimed mesne profits of Rs. 7 ,037. 50 with reference to nine crops, i. e. from Pishanam 1969 to Pishanam 1973. The next I. A. No. 264 of 1979 was filed claiming mesne profits of Rs. 40 ,517. 30 for 10 crops during the subsequent period, i. e. from Kar 1973 to Kar 1978. The trial court in the former interlocutory application granted a decree only for Rs. 4 ,00 0. In the latter interlocutory application, the decree by the trial court was only for Rs. 2 ,80 0. Aggrieved by the said two decrees the plaintiff preferred two appeals A. S. No. 78 of 1980 against I. A. No. 264 of 1979 and A. S. No. 79 of 1980 against I. A. No. 1443 of 1973.

(2.) THE lower appellate court heard both the appeals together and held that'mesne profits'as such cannot be claimed in a suit for partition and on that ground it held that the appeals were not maintainable. However, on the ground that there was no cross-objection by the defendants, the lower appellate court simply dismissed the appeals. Hence, the present two second appeals. S. ANo. 685 of 1982 is against A. S. No. 78 of 1980 and S. ANo. 686 of 1982 is against As. No. 79 of 1980.