N PALANISWAMY Vs. N GOVINDARAJ

JUDGEMENT

(1.) THE first defendant in O.S. No. 970 of 1977 on the file of the Sub-Court, Coimbatore is the appellant in this appeal. THE plaintiff in that suit is the first respondent and defendants 2 and 3 are respondents 2 & 3 respectively in this appeal. THE 4th defendant is not added as a party to this appeal. THE decree holder/first respondent died pending appeal and his legal representatives have come on record by an order of this court. For the sake of convenience in this judgment the parties to the proceedings would hereinafter be refereed to as the plaintiff and the defendants. Heard Mr. R. Sasidharan learned counsel appearing for the appellant as well as Mr. N. Varadarajan learned counsel appearing for the legal representatives of the first respondent/decree holder. THE above suit for partition filed by the plaintiff was decreed on merits. Hence the present appeal before this court.

(2.) THE allegations in the plaint are as follows: "THE plaintiff is the younger brother of the first defendant. THEir father is Narayanaswamy Naidu. He purchased vacant sites, on which superstructures have been put up in the years 1948 & 1949. THEreafter he constructed on the vacant sites, a row of houses bearing Nos. 51 to59. Narayanaswamy Naidu died on 28.04.64 intestate. His wife also died later on intestate. THE plaintiff and the first defendant are the only legal heirs of the deceased Narayanaswamy Naidu. THE plaintiff is in possession of Door No. 56. Door Nos. 53, 54 & 55 are in the occupation of the first defendant. Door Nos. 51 & 52 have been demolished for the purpose of reconstruction and defendants 2 to 4 are tenants of Door Nos. 57 to 59 respectively each on a monthly rent of Rs. 35/-. THE first defendant alone is collecting the entire rent. THE first defendant therefore is liable to pay the mesne profits to the plaintiff at the rate of 52.50 per month from November 1975 till the date of delivery of possession. Hence the suit for partition as well as for past and future mesne profits."

(3.) THE judgment brought to my notice by the learned counsel for the appellant is clear on Issue Nos. 1 & 2 framed by this court. It is needless to state that in all suits for partition. It is always obligatory on the part of the learned trial Judge to relegate to the second stage in the same proceedings to conduct an enquiry into the claim for past and future mesne profits. But however in this case the learned trial Judge had done it even at the preliminary decree stage itself. THErefore the finding rendered by the learned trial Judge on the quantum of past and future mesne profits at the preliminary stage itself is set aside. Likewise the finding rendered by the learned trial Judge that the first defendant is not entitled, on the principles of equity, for allotment of certain portions claimed by him, is also set aside. THE issue namely, the quantum of past and future mesne profits is relegated to the second stage of the same proceedings and the learned trial Judge, on an application made to him, is directed to appoint an advocate commissioner to go into that question after taking into account the relevant materials available on record and the evidence that may be let in by either of the parties concerned. As far as the principles of equity to be followed, the learned trial Judge shall take up that issue while making the actual allotment in the final decree proceedings. As far as the extent of repairs stated to have been effected by the first defendant and the quantum stated to have been incurred, it appears that the first defendant had filed voluminous documents. How far they are relevant to the issue in question, the learned trial Judge had lost sight of. THErefore the finding by the learned trial Judge that the first defendant had not established that he had effected any repairs, improvements or renovations to the buildings in question as well as the amount spent by him in regard thereto, is again vacated. It is open to the parties to let in evidence as they may choose to do so before the advocate commissioner on this aspect namely, the extent of repairs stated to have been done by the first defendant; to what properties it relate to and the quantum of the expenditure incurred by him in regard thereto. THE learned trial Judge is directed to take the commissioner's report on this aspect while working out the ultimate liability of the first defendant towards the plaintiff in the area of past and future mesne profits. Inasmuch as there is no dispute about the actual division of the properties between the two brothers namely, the plaintiff and the defendant, I am of the opinion that this question no longer survives for consideration. Accordingly the appeal is allowed on the lines indicated above. No costs. THE preliminary decree so far as it relates to the declaration of the share of the plaintiff and the first defendant is concerned, will stand confirmed.