KAINTA MEHERANI Vs. DAMRU MEHER

JUDGEMENT

(1.) PLAINTITF is the petitioner. She was permitted to file the suit as a pauper. She obtained a preliminary decree for partition. In course of the final decree proceedings, she filed a petition for taking accounts of the mesne prows. , By an order dated 13-12-1961, the learned Munsif new

(2.) MR. Sen advanced the following contentions.

(3.) IN his order dated 13-12-1961, Sri C. S. Patnaik, the then learned Munsif, decided that the plaintiff was entitled to receive Rs. 1050/- trom the defendant towards the mesne profits for seven years in respect of her snare and the plaintiff was to pay the court-fee payable on the mesne profits by 18-12-1961. Though the words "mesne profits" have been throughout used, strictly speaking the claim does not come within the definition of mesne pro-tifs" as defined in Section 2 (12), c. P. C. It has not (sic) been finally settled by a Bench decision of this court, reported in Udekar v. Chandra Sekhar, AIR 1961 Orissa 111 that the expression "mesne profits", as defined in Section 2 (12), C. P. C. is restricted only to those profits which are derived by a person in wrongful possession of property belonging to another. It has no application! to profits accountable by a person not in wrongful possession of the property such as by a co-sharer, before partition. Such a claim tor accounts is not strictly speaking a claim for mesne profits and the provisions of Order 20, Rule 12 CJP. c. nave no application to such claim for accounts. a claim for accounts in a partition suit is implicit in the original suit tor parti- tion by metss and bounds and it ought to be settled at the time of the preparation of the final decree, if one of the cosharers is found to be in possession of more than his legitimate share of the joint property, the claim for adjustment of accounts should be made and the equities between the parties is to be adjusted! in. the final decree itself. On this view, the order declaring the plaintiff to receive rs. 1050/- from the defendant towards the mesne profits is strictly speaking an order decreeing the specific amount of Rs. 1050/-on adjustment of accounts and equi ties between the co-sharers.