KANDASWAMY KOUNDAR Vs. THIRUMURTHY GOUNDAR AND ANR.

JUDGEMENT

(1.) The second defendant in O.S. No. 409 of 1948 on the file of the Court of the Subordinate Judge of Udamalpet is the appellant herein. The plaintiffs filed the suit for partition in the year 1948 and for possession of their 2/3rd share in one half of the suit property and for mesne profits. A preliminary decree was passed on 25th January, 1950. As against that, there was an appeal in A.S. No. 426 of 1950 to this Court, and by judgment dated 27th October, 1954, the plaintiffs were given mesne profits from 14th December, 1948, till date of delivery of possession of the property. On 11th February, 1957, the plaintiffs applied for passing of the final decree. A commissioner was appointed who made three reports on 27th October, 1958, 12th November, 1958 and 17th December, 1958. After the receipt of these reports, there was an interim final decree on 14th February, 1959. As against that interim final decree, there was an appeal which was dismissed. On 28th February, 1973, there was a final decree directing mesne profits being paid at the rate of Rs. 500 per annum from 14th December, 1958, till date of delivery of possession. It is this direction that is now objected to.

(2.) The learned Counsel for the appellant contended that though there may be more than one preliminary decree in a suit for partition, there could be only one final decree and that the Code of Civil Procedure does not envisage passing of piecemeal final decrees. In support of this submission he relied on a decision of this Court in Thyagarajan v. Sundaravelu, 1972 AIR(Mad) 216. In that case, a final decree had already been passed on 31st July, 1967, before the enquiry into the mesne profits was completed. There was no interim final decree as here. The order completing the enquiry into mesne profits was passed on 30th April, 1970. It was contended that more than one final decree could be passed in a partition suit. It was argued that if a partition suit comprised various items, more than one final decree could be passed; but in respect of each item, there could be only one final decree and not more than one, and that final decree should be final and complete with regard to that item. It was also pointed out that the mesne profits accruing from the said property formed part and parcel of the corpus and that there could not be a piecemeal final decree in respect of the same item or property, one relating to the corpus and the other relating to mesne profits. I am unable to agree that this decision has any application to the facts of this case. That was a case where a final decree had already been passed on 31st July, 1967. When once the suit was completely decided by the Court, the Court had no jurisdiction to pass any further order regarding the mesne profits. Therefore this decision had to be understood only in the light of the peculiar facts, namely, that the suit itself had been finally decided by the Court and that it therefore erroneously assumed jurisdiction to go into the mense profits. It could not do so.

(3.) Another decision to which my attention was drawn is that of the Patna High Court in Sudarsman Dass v. Ramkripal Das, 1972 AIR(Mad) 216. In that case for partition, in the plaint the plaintiff claimed a decree for mesne profits past pendente lite and future profits. By the judgment of the trial Court, the suit was dismissed. The trial Court held that the plaintiff was not entitled to any share and in that view, there was no question of any mesne profits. That judgment was set aside ultimately by the Judicial Committee of the Privy Council in November, 1949. The preliminary decree had therefore to be in accordance with the judgment of the Judicial Committee. However, there was no mention in that decree about the plaintiff's claim to mesne profits. On these facts, it was pointed out that during the proceedings for passing the final decree, mesne profits should have been enquired into at least with regard to past pendente lite and that neither the plaintiff took any step in that direction nor did the Court do anything in that respect. When the final decree was passed without any reference to mesne profits or even any direction to mesne profits to be determined later on, the plaintiff could have appealed against that final decree, but he did not do so. It is in the light of these facts that the Patna High Court held that there could not be any enquiry into mesne profits. Here also it could be seen that the Court had rightly or wrongly disposed of the matter without any reference to mesne profits and it is thereafter that the question regarding mesne profits was agitated. It was held that the Court did not have any jurisdiction to do so This case also has to be understood in the light of the fact that the matter has already been disposed of by the Court and it wanted to consider the question of mesne profits after finally passing a final decree. In the present, case the decree dated 14th February, 1959 was itself in the nature of an interim final decree. Ex facie it stated that it was not a final decree disposing of the suit in toto. Against that decree, there was an appeal and that appeal was dismissed. Therefore what was subsequently passed is only a continuation of the said final decree proceedings and it is now that the suit must get terminated. In these circumstances, I do not find any infirmity in the order of the Court below in giving the direction regarding the sum of Rs. 500 as mesne profits.