P POONAMMAL Vs. KANAKAVALLI SRINIVASAN

JUDGEMENT

(1.) THE controversy in this second appeal relates to the allotment of a half share in premises No. 56, Cathedral Road , Madras comprising 3 grounds and 1538 sq. ft. of land and a building thereon with a plinth area of 3876 sq. ft.

(2.) ONE Rajaram Pillai filed the suit, out of which these proceedings arise, for partition and separate possession of one half share and for recovery of a sum of Rs. 500 for his share of collections of rent and for an account of the income from the property against his son V. Ramamoorthy alias r. M. Kumar. A few months after the filing of the suit, the plaintiff sold his undivided half share in the property to one Puram Prakasa Rao under a registered sale deed dated 16. 9. 64 for a sum of Rs. 20,000. A preliminary decree was passed on 31. 3. 1966 granting one half share to the plaintiff and a sum of rs. 500 for his share in rental collections. The defendant filed an appeal a. S. No. 399 of 1966 in this Court and during the pendency of the appeal, the plaintiff died on 10. 11. 1972. The purchaser of his undivided half share viz. , puram Prakasa Rao was brought on record as the legal representative of the deceased plaintiff on 22. 3. 1973. On the same day, the appellant withdrew the appeal as a result to which the preliminary decree passed by the trial Court stood confirmed. Puram Prakasa Rao filed applications in March, 1973 for passing of final decree, appointment of receiver and for ascertainment of mesne profits. The defendant, Ramamoorthy alias R. M. Kumar, died on 10. 8. 1973 and his legal representatives, who are the appellants in this second appeal, came on record. Puram Prakasa Rao also died and his legal representatives v/ere brought on record as plaintiffs 3 to 6. They assigned their rights under the decree in favour of the respondents herein by registered deed of assignment dated 27. 9. 1978. On the strength of the assignment deed, the respondents filed LA. No. 22753 of 1978 for recognising them as assignee-decree-holders and the application was allowed on 13. 11. 1979.

(3.) IT is the said allotment which is challenged by the appellants herein. Learned counsel for the appellants argued faintly that there was no application bearing Number 2452 of 1979 pending on the file of the trial court for ascertainment of mesne profits and that the lower appellate Court was wrong in directing the trial Court to dispose of the same. Learned counsel for the respondents strongly refuted this contention and brought to my notice that the lower appellate Court sent for the papers in I. A. No. 2452 of 1979 and satisfied itself with the pendency of the same before giving the said direction to the trial Court and the counsel on both sides were present in Court when the papers in I. A. No. 2452 of 1979 were perused by the learned appellate Judge. I do not think that there is any force in the contention of learned counsel for the appellant in this regard. If I. A. No. 2452 of 1979 is pending in the trial Court, it will have to dispose of the same as directed by the lower appellate Court after holding an enquiry into mesne profits. Inasmuch as the lower appellate court has given a specific direction to the trial Court to dispose of i. A. No. 2452 of 1979 after due enquiry, the said direction has to be obeyed by the Trial Court.