KAPPINI GOUNDAR Vs. K. KUPPUSWAMY

JUDGEMENT

(1.) Second Defendant is the Petitioner herein.

(2.) The Respondent herein filed Original Suit No. 113 of 1969. on the file of the Sub -Court, Coimbatore, for partition of the suit properties into two equal shares and for delivery of possession of one such share to him and recovery of past mesne profits of Rs. 4,769 till date of plaint and future mesne profits at Rs. 2,140 and Rs. 517 for the A and B schedule properties; and for costs. A preliminary decree for partition was passed as early as 15th September 1973. The alternative portion of the preliminary decree is as follows:

(3.) Interlocutory Application No. 32 of 1977 was filed by the second Defendant, who is the Petitioner herein, praying for issue of directions to the Commissioners to record evidence for ascertainment of future mesne profits, and also to record evidence not only on the questions of future mesne profits but also on the question of improvements and any other amount due to each party as reserved in Clause (2). The Respondent herein opposed the application stating that the Petitioner could as well file on independent suit to recover his dues for improvements and that he could not seek to issue fresh direction to the Commissioner to enquire into the improvements and costs of the alleged improvements and prayed for the dismissal of the application. The learned Subordinate Judge, Coimbatore, in his order referring to the final decree proceedings in Interlocutory Application No. 146 of 1974, observed that in the final decree there is a provision to the effect that if the Plaintiff files a petition for mesne profits under Order XX Rule 12, Code of Civil Procedure against Defendants 2 to 4, the Defendants could put forward is that petition the claim for improvements if any as set -off against the claim of mesne profits claimed by the Plaintiff, that as per the final decree, in Interlocutory Application No. 146 of 1974 Defendants 2 to 4 were entitled to put forward a claim for improvements in the same application wherein the Plaintiff has claimed mesne profits, and that the Commissioner was to be directed to ascertain the improvements said to have been effected on the properties by the second Defendant. After so observing, the learned Subordinate Judge directed the second Defendant to submit a list of the improvements in respect of which the claim has been made by him and also directed him to pay a remuneration of Rs. 75 to the Commissioner for ascertaining the same. He observed that in respect of the improvements, the second Defendant was willing to pay the Court -fee on the determination of the value of the improvements and directed him to pay the same. Finally, in the concluding portion of his order, the learned Subordinate Judge has ordered that the second Defendant will submit a list of his claim for improvements before the Court with copy to the Plaintiff within two weeks from the date of the order, that the second Defendant will also deposit the Commissioner fee of Rs. 75 in Court within two weeks from the date of the order, that the Commissioner will hold the enquiry as directed earlier in the Commission warrant and that the second Defendant will also deposit the court -fee for the improvements which he has valued at Rs. 12,500 within two weeks from the date of the order.