A DURAISWAMY FILIAL Vs. A ARUMUGHAM

JUDGEMENT

(1.) DEFENDANT is the appellant. This is an appeal against the order passed by the District Judge, Tiruchirappalli in A. S. N0. 349/80. The said appeal was preferred by the plaintiff who had filed a petition under Or. 20, r. 12, C. P. C, before the Principal Subordinate Judge, Tiruchirappalli, praying for the appointment of a Commissioner to make an enquiry with regard to the mesne profits in respect of the property concerned in the suit. The suit was for partition filed by the plaintiff. The learned Principal Subordinate Judge had dismissed the petition. Aggrieved with the said order of dismissal, the plaintiff filed the appeal before the District Judge, Tiruchirappalli and the learned Principal District Judge allowed the appeal and set aside the order dismissing the petition filed by the plaintiff, and directed the lower Court to dispose of the application at an early date. Aggrieved with the said order passed by the learned Principal District Judge, Tiruchirappalli, the present appeal has been filed.

(2.) THE respondent herein as plaintiff filed the suit for partition and separate possession of'share in A and B schedule properties and recovery of past profits of Rs. 900 and also for a direction, for ascertainment of future profits under Or. 20, R. 12, C. P. C from the date of plaint till delivery of possession, in respect of the house property that belonged to himself and his brother. A preliminary decree was passed on 28. 7. 1976 for partition of plaintiff's shares 3/8th share in the plaint A schedule property for separate possession and the preliminary decree provided that the quantum of past and future profits is to be relegated to separate proceedings under Or. 20, R. 12, C. P. C. THEreafter, the plaintiff filed the petition for appointment of a Surveyor to effect division of the property in accordance with the preliminary decree, and a final decree was passed on 19. 2. 1977 allotting 3/8th portion in the suit house. THE final decree then passed did not provide for payment of mesne profits either past or future. THEreafter, I. A. No. 282/79 was filed by the plaintiff under Or. 20, R. 12, C. P. C and the learned Principal Subordinate Judge, Tiruchirappalli, who enquired the petition dismissed the same. As stated earlier against the said order dismissing the petition, A. S. N0. 349/80 was filed before the. learned Principal district Judge, Tiruchirappalli, who allowed the appeal. Against the said order of the learned Principal District Judge, Tiruchirappalli, the present appeal has been filed by the defendant contending that the learned Principal District judge erred in allowing the appeal and as per the decision reported in MOHD. HABIBULLAH v. RAHIMATHI BEEVI, (1980) 1 M. L. J. 436, such an application for final decree is not maintainable and the application is barred by principles of res judicata and further the learned Principal District Judge failed to note that the respondent was in joint possession and so the claim for mesne profits is not maintainable.

(3.) AS regards the said observation by the learned Judge, it is respectfully to be pointed out, that in the decision reported in ramaswami IYER v. SUBBIAR AND ANOTHER, A. I. R. 1957 Mad. 184, Basheer Ahmed sayed, J. has held that though an application is taken out under Or. 20, R. 12, still it does not necessarily mean that the application should be dealt with by the Court only under that order and rule. If a mistake has been committed in mentioning a provision of law under which an application is made, it does not preclude the Court from deciding the matter under the correct provision of law or. 20, R. 18. By applying what has been laid down by the said learned Judge, it is now to be seen whether the application filed by the plaintiff is maintainable. In the decision reported in M. RAJANGAM AYYER v. NATESA CHETTIAR, (1968)2 M. L. J. 282: A. I. R. 1968 Mad. 176, rendered by A. Alagiriswami, J. it has been pointed out that in a suit for partition, separate possession and mesne profits, when a preliminary decree providing for ascertainment of mesne profits and final decree not providing for mesne profits, it is open to the Court to ascertain mesne profits and pass another decree. It is also pointed out by the learned Judge, that it cannot be said that because the final decree already passed does not provide for mesne profits, it should be deemed to have been refused. The decision reported in MANICKA MUDALIAR AND OTHERS v. MUNILAKSHMAMMAL, (1972)2 M. L. J. 568 is rendered by N. Krishnaswamy Reddy, J. The facts in that case reveal that the preliminary decree in a suit for partition declaring the share of the plaintiff, provided that the plaintiff's share in future mesne profits would be determined in final decree proceedings. But in the final decree proceedings the determination of mesne profits was again left to be decided in separate proceedings, while the other matters provided under the preliminary decree were settled under the final decree. The plaintiff subsequently filed an application under Or. 20, R. 12, for the determination of the future mesne profits. The learned Judge held that such an application is maintainable. The learned Judge has also referred to the decision rendered by A. AIagiriswami, J. reported in M. RAJANGAM AYYER v. NATESA chettiar, (1968)2 M. L. J. 282: A. I. R. 1968 Mad. 131. The decision reported in k. M. MADHAVA KRISHNAN v. K. V. THANCAPERUMAL AND OTHERS, (1973)1 M. L. J. 277: a. I. R. 1973 Mad. 311, is also a decision rendered by Krishnaswamy Reddy,j. It has been pointed out by the learned judge that there can be several final decree proceedings depending upon the circumstances of each case. In the decision reported in K. P. NALLA GOUNDAR v. P. RAMASWAMY AND OTHERS, (1979)1 m. L. J. 309, rendered by Ismail, J. (as he then was), the learned Judge has pointed out among other things that: "with regard to a suit for partition what is really the consequential relief will be a claim for accounting and not a claim for mesne profits. In a suit for partition the profits accruing from the different items of properties which are the subject matter of the claim for partition will also be property to be divided among the different shares. So long as that item of the property is not divided, the suit cannot be said to have been finally disposed of. Any decree that is passed prior to that can only be interim final decree or one of several final decrees which came to be passed in the suit". The said decision rendered by Ismail,j. was also one of the decisions'referred to above by Mohan, J. in the decision reported in mohammed HABIBULLAH v. BAHIMATH BEEVI, (1980)1 M. L. J. 436.