BASU BEHERA Vs. DOMBARU BEHERA

JUDGEMENT

(1.) This is a petition under Section 115, Civil P. C., calling in question the correctness of an, order passed by the Munsif, Berhampur, in Title Suit No. 224 of 1945. That suit was filed by opposite parties 1 to 4 for partition and separate possession of certain properties belonging to the plaintiff and the defendants. A preliminary decree was passed for partition of the suit properties. A claim put in by the plaintiff to have an account taken of the collections made by the defendant- petitioner out of the fishery is still pending. A commissioner has been appointed to go into the account and his report is awaited. The plaintiff made an application to the court for ascertaining the mesne profits in respect of the share allotted to him from the date of institution of the suit, and the learned Munsif, by his order dated 20-9-1952, which is now under challenge, directed the commissioner to ascertain the mesne profits from the date of institution upto the date of the order. The plaintiff's application was filed under Order 20, Rule 12 and Rule 151, Civil P. C. The defendants objected to the jurisdiction of the court to entertain such an application after the passing of the preliminary decree, specially when the plaintiff did not make any prayer for such a relief in his plaint. This objection was overruled by the Munsif and hence this revision.

(2.) The Civil Procedure Code prescribes what a court may do in passing a decree for partition of property and separate possession of a share therein, in Order 20, Rule 18 which is as follows :

(3.) Learned counsel for the petitioner contends that the court's power to deal with the claim of the plaintiff is exhausted after the passing of the preliminary decree, unless an inquiry as to rents and mesne profits is ordered in the preliminary decree itself. This contention is founded upon the language of Rule 12 of Order 20, C. P. C. But it will be noticed that that rule contemplates suits for possession of land, while the relevant rule dealing with suits for partition and separate possession of shares is Rule 18. There is therefore a well recognised distinction between the two classes of suits and I am unable to find justification for applying Rule 12 when a specific provision is made else-where with regard to suits for partition. Learned counsel for the petitioner relied on the case of --'Kiran Chandra Roy v. Erfan Karikar', AIR 1934 Cal 503 (A), but that case is easily distinguishable. There the suit was one for possession of lands and for mesne profits. It may also be noticed that Rule 12, Order 20, Civil P. C. contemplates ascertainment of mesne profits as defined in Section 2 (12) of the Code. But in the case of a suit for partition it can hardly be said that the coparcener or the cosharer, as the case may be, is in wrongful possession of such property unless it is shown that the plaintiff has been excluded from enjoyment and there is a complete ouster. The Judicial Committee while interpreting the provisions of Section 196, Civil P. C., of 1859 which corresponds to Rule 12 of Order 20 of the present Code, held that a claim to future profits may be entertained by the Court and relief may be given to the plaintiff whether the plaint contained a prayer for such relief or not. See -- 'Fakharuddin Mohammed v. Official Trustee of Bengal', 8 Cal 178 (PC) (B). The language of Rule 18 is much wider in amplitude and it would follow therefore that the absence of a prayer in the plaint would not debar the court from entertaining such an application at a later stage before the final decree is passed. There is nothing in the rule, to indicate that the power of the court to give such directions in respect of any of the matters in dispute between the parties should be exercised only at the time of passing the preliminary decree or that the power is exhausted if it is not. so exercised at that stage. This is the view that has found favour with a Full Bench of the Madras High Court in --'Basavayya v. Guravayya', AIR 1951 Mad 938 (C).