DOMMARAJU KANNEPALLI OBULU RAJU Vs. DOMMARAJU VOBULU RAJA

JUDGEMENT

(1.) This revision is directed against an order of the learned Additional District Judge, Nellore, dismissing I.A. No. 418 of 1978 in I.A. No. 56 of 1976 in O.S. No. 3 of 1967.

(2.) The respondent is the eldest son of the petitioner who has two other sons. He filed O.S.No. 3 of 1967 against them in the Court of the Subordinate Judge, Nellore, for partition and separate possession of his 1/4 th share of the suit properties alleging that they belong to their joint family. The petitioner resisted the suit contending inter alia that some of the suit properties are his self-acquired properties and that the respondent is, therefore, not entitled to any share in those properties. A preliminary decree for a partition and separate possession by the respondent of his 1/4th share but only in respect of some of the suit items was passed on 30th March, 1968. He preferred an apppeal to the High Court in respect of the disallowed items and succeeded. The Letters Patent Appeal which the petitioner preferred from that decision was dismissed. The respondent thereafter filed I. A. No. 75 of 1970 under Order 20, rule 18 of Civil Procedure Code, for the appointment of a Commissioner to divide the properties and to put him in separate possession of his 1/4th share thereof and also for determination of the profits due to him from the date of the institution of the suit till delivery of possession to him. The Commissioner, who was accordingly appointed, submitted his report to the Court on 8th February, 1974 and a final decree was passed on 19th March, 1974. That final decree provided, among other things, that on payment of necessary court-fee, a supplemental final decree for profits be passed in favour of the respondent. The respondent obtained possession of the properties allotted to him under the aforesaid final decree on 30th September, 1974. Since the petitioner made an application to the Court stating that the report of the Commissioner regarding the mesne profits to which the respondent was found entitled by him, is not based on evidence and should not consequently be accepted, another Commissioner was appointed by the Court below for ascertainment of profits. After making the necessary enquiry, the said Commissioner submitted his report relating to the amount payable to the respondent towards profits from 7th November, 1963, the date of the suit till 30th September, 1974 when he (respondent) was actually put in possession of the properties allotted to his share. The petitioner filed objections to this report and when that matter came up for hearing, he filed I.A. No. 418 of 1978, out of which this revision has arisen, under section 151, Civil Procedure Code, requesting that the maintainability or otherwise of the main petition I. A. No. 56 of 1976 filed by the respondent be determined as a preliminary point in the case, as according to him, the enquiry into profits to which the respondent is entitled should have been limited to a period of three years in view of the provisions of Order 20, rule 12 (1) (c) (iii), Civil Procedure Code. This petition was opposed by the respondent. After hearing the parties, the learned District Judge held that the petitioner should be deemed to have waived his objection, if any, for ascertainment of profits for period exceeding three years and that the application is liable to fail for this reason as well as its belated nature and that even otherwise, the contention that the respondent is not entitled to ask for ascertainment of profits for more than three years is untenable and accordingly dismissed I. A. No. 418 of 1978. Hence this petition for revision.

(3.) The specific prayer in I.A. No. 418 of 1978 out of which this revision has arisen, as can be seen from that petition as well as the affidavit filed in support thereof, is that the preliminary objection against the maintainability of I.A. No. 56 of 1976 for ascertainment of future mesne profits for a period exceeding three years from the date of the decree be decided before proceeding to determine the actual quantum of profits. That this was the preliminary question on which a decision was sought from the Court below can also be gathered from the point for consideration formulated by that Court as under:-