A.R. VEERAPPA GOUNDER Vs. SENGODA GOUNDER

JUDGEMENT

(1.) This revision petition is against the dismissal of an application which is really one under Order 20, Rule 18, Civil Procedure Code, though incorrectly stated as one under Order 20, Rule 12 Civil Procedure Code. The revision petitioner is the plaintiff in O. S. No. 98 of 1967 on the file of the lower Court, in a suit for partition and separate possession. There was a preliminary decree for partition on 16th August, 1969. Later there were final decree proceedings during which the revision petitioner filed an application purporting to be under Order 20, Rule 12, and Section 151, Civil Procedure Code for ascertainment of profits from the suit properties and for allotment of a share therein to him. It appears that according to the case of the revision petitioner the suit properties were in the possession of the respondent (defendant in the suit ) and that therefore the defendant was bound to render an account in respect of the profits from the date of suit up to the date of the final decree. The Court below has passed a final decree on 17th September, 1970 but the profits claimed by the revision petitioner had not been ascertained and the same had not been incorporated in the final decree. Though the application (I. A. No. 1826 of 1969) for ascertainments of profits and division of the same, had been filed even before the passing of the final decree, the Court below had taken up that application for enquiry only subsequent to the passing of the final decree, and dismissed the same. Broadly speaking, the Court below has given two reasons for so dismissing the application and they are : (1) The preliminary decree does not give any direction for determining the profits in separate proceedings (2) After the passing of the final decree, no application for ascertainment of profits can be entertained.

(2.) On the face of it, the order of the Court below is wholly unsustainable. The learned Subordinate Judge had not kept in mind the distinction between a suit for possession and a suit for partition and separate possession. Only in the case of a suit for possession, if mesne profits are not determined at the time when the decree is passed there should be a direction in the decree that the mesne profits are to be determined in separate proceedings and in such a case there can be an application under Order 20, Rule 12, Civil Procedure Code. Only in a suit for possession, the defendant who is in possession of the property is bound to pay mesne profits, but in a case for partition and separate possession, the profits derived from the properties subsequent to the filing of the suit is really not mesne profits as such, for the simple reason, the party who is in possession of the property or properties is not in wrongful possession. As a co-owner, the possession of a particular party in a suit for partition is not similar to possession held by a defendant in a suit for declaration of title and possession. In a suit for partition, the future profits from the property ought to be ascertained as property that is to be divided among the sharers. When a preliminary decree directs partition of the suit properties according to the shares declared therein, it is the duty of the Court not only to divide the several items of properties described in the plaint schedule but also the future profits derived therefrom from the date of suit till date of final decree, for, profits so derived are also '' property " liable to be divided between the sharers. If one of the sharers happens to be in possession of all the suit properties and he had been deriving the profits therefrom during the pendency of the suit, he is bound to account for the same and the other sharers are entitled to their respective shares in the net profits on such accounts. The Court below has proceeded on the footing as if the application made by the revision petitioner is one for ascertainment of mesne profits as in a suit for possession. To a certain extent, the revision petitioner himself is to be blamed, for, the application is purported to be under Order 20, Rule 12, Civil Procedure Code. As I said that provision applies only to a suit for possession, where the defendant who has been directed to deliver possession of the property to the plaintiff decree-holder should be deemed to be in wrongful possession of the property till he so delivered possession. The above position has been made clear by a Full Bench of this Court in Basavayya v. Guravayya, 1952 AIR(Mad) 61 . The headnote brings out the point and it is as follows 4

(3.) Therefore the Court below is incorrect in its conclusion that the prayer of the revision petitioner cannot be granted inasmuch as the preliminary decree does not direct that the profits may be determined in separate proceedings.