GOVIND RAM Vs. GANESH RAM AND OTHERS

JUDGEMENT

(1.) THIS is a defendants revision directed against an appellate order passed by the 2nd Additional District Judge, Ghazipur affirming an order of the Civil Judge dated 14-9-1971 directing an enquiry into the question of mesne profits at the stage of the preparation of the final decree in a partition suit.

(2.) THE plaintiff filed a suit for partition. A preliminary decree was passed In his favour. Under that decree, he was granted a half share in the properties in dispute. In the proceedings for preparation of the final decree, the plaintiff claimed that he was entitled to his share of the profits accruing on the properties in respect of which he had been granted a decree. The plaintiff alleged that he had been ousted from possession of those properties, and the defendant had been realising the profits thereof, hence he was liable to render accounts in respect of them, and the plaintiff was entitled to a decree for his share of profits in the same. An objection was raised by the defendant that a claim for mesne profits could not be made at the stage of the preparation of the final decree. The trial court rejected that objection and held that it was open to the court to consider the question of the plaintiffs interest in the profits realised by the defendant. Having held that the defendant was an accounting party in respect of the realisation, the learned Judge framed several issues on the question as to what was the defendants liability in them, if any. Aggrieved by that order, the defendant preferred an appeal and contended before the appellate court that at the stage of the preparation of the final decree, it was not open to the court. below to consider the question of mesne profits. The appellate court dismissed the appeal and affirmed the order of the trial Court holding that in a partition suit it was open to the court at the stage of the preparation of the final decree to adjust the equities between the parties and consider the question of awarding mesne profits to the plaintiff on the basis of his share in the properties in dispute. Aggrieved by the orders, the defendant has filed this revision.

(3.) THE courts below held that the plaintiff was ousted from possession of the properties in which he had a half share, and he had not been paid his share of profits derived from them. His claim in respect of them could, accordingly, be considered in the proceedings. This view appears to be sound. In Babburu Basavayya v. Babburu Guravayya (AIR 1951 Mad 938) (FB) it was held (at p. 943) :