SHRIKANT PANACHAND SHAH Vs. WALUBAI PANACHAND SHAH

JUDGEMENT

(1.) THE original defendant Shrikant Panachand Shah has preferred this second appeal under section 100 of the Civil Procedure Code, 1908 against the judgment and decree passed by the Assistant Judge, Kolhapur on 31-8-1984 whereby he set-aside the judgment and decree passed by 3rd Jt. Civil Judge, Junior Division, Kolhapur dated 20th February, 1982.

(2.) WALUBAI Panachand Shah (for short, original plaintiff) filed a suit for mesne profits of the property which had come to her share in the decree for partition. A suit for partition earlier was filed by Vijaya, the daughter of original plaintiff registered as S. C. Suit No. 109/1971 against her mother Walubai, brother Shrikant (for short original defendant) and sister Subhadra. In the said suit a decree for partition was passed on 14th March, 1973. The original plaintiff Walubai and the original defendant got half share each in the property in question. It appears that execution was levied by original plaintiff for having her share partitioned by metes and bounds and in that proceeding Court-Receiver was put in possession of the suit house since 1977. The original plaintiff Walubai thereafter filed a suit for account of mesne profits relating to the property which fell in her share but original defendant continued to remain in possession of the same unlawfully. The original defendant resisted the claim of the original plaintiff and one of the pleas set-out in the written statement was that the present suit for accounts of mesne profits was not maintainable. The trial Court after recording the evidence held that original plaintiff was not entitled to claim account of mesne profits and accordingly on 20th February, 82 dismissed original plaintiffs suit. The judgment and decree passed by 3rd Jt. Civil Judge, Junior Division, Kolhapur on 20th February, 82 was challenged in appeal and the Assistant Judge, Kolhapur reversed the judgment and decree passed by the trial Court, allowed the appeal of the original plaintiff on 31-8-1984 and passed a preliminary decree for accounts of mesne profits.

(3.) UPSET by the judgment and decree passed by Assistant Judge, Kolhapur on 31st August, 84, the present second appeal has been preferred by original defendants.