NEMURI LAKSHMINARAYANA Vs. NEMURI PRAKASH

JUDGEMENT

(1.) RESPONDENTS 6 to 10 herein - plaintiffs 6 to 10 in O. S. No. 9 of 1993 on the file of the court of Principal District Judge, Ranga Reddy district; obtained preliminary decree dated 8/9/1993 for partition of suit schedule properties. In the meanwhile, plaintiffs filed i. A. No. 2241 of 1993 under Order XXVI rule 13 of Code of Civil Procedure, 1908 (CPC) for appointment of Advocate commissioner to divide suit schedule properties as per preliminary decree, to allot one such share each to plaintiffs and defendants, and to determine mesne profits. The trial Court appointed Advocate commissioner on 27/7/1994. Report was filed on 10/7/1995 dividing suit schedule property and assessing mesne profits payable by defendants to plaintiffs at Rs. ,7,15,067. 75 ps. Both the parties filed objections to the report of the Advocate commissioner. After considering the same, trial Court passed orders on 09. 4. 1998 returning the warrant and directing Advocate commissioner to make division of Acs. 0. 27 guntas of land lying to the east of suit schedule house and to record the statements of tenants and other witnesses produced by the parties. Against the said orders, petitioners herein - defendants 5 and 6; preferred A. S. No. 78 of 1994 before this court. Aggrieved by the judgment of this court in appeal, petitioners preferred Special leave Petition in which Supreme Court observed that final decree proceedings shall continue but final decree shall not be signed without leave of Supreme Court. Complying with the orders of the trial Court, Advocate commissioner filed report on 04. 9. 1998 allotting house plot with appurtenant house to the plaintiffs and making certain adjustment in dividing other properties into two equal shares. Again objections were filed by both the parties.

(2.) AFTER considering the objections, learned trial Judge passed orders on 6/10/1998 declaring that plaintiffs are entitled to an amount of Rs. 4,47,243. 50 ps. , towards mesne profits with interest at 6% per annum from the date of the order till the date of payment. Aggrieved by the same plaintiffs filed c. P. P. No. 5538 of 1998 whereas defendants filed C. R. P. No. 27 of 1999. These two civil revision petitions were allowed on 17/2/2005 and the matter was remitted to the trial Court for fresh disposal. In obedience thereto learned District Judge again heard the matter and passed orders on 18. 10. 2006 approving the report of Advocate commissioner for division of suit schedule property and declaring that plaintiffs are entitled to Rs. 12,81,750. 00 towards mesne profits with interest at 6% per annum from the date of order till the date of realisation. This is subject matter of this revision petition.

(3.) LEARNED Counsel for petitioners-defendants 5 and 6 made lengthy strenuous arguments to drive home the point that the impugned order is vitiated by material irregularities while exercising jurisdiction under Rule 18 of Order XX of CPC. According to learned Counsel there is no evidence to show that house bearing No. 14-21 exclusively belongs to the mother of plaintiffs and that the trial Court erred in holding that the suit house was sold by Sulochana to purushotham prior to filing of suit. Learned counsel does not dispute that final decree as such has not been signed and in such event defendants 5 and 6 have right of appeal.