TULSI RAM Vs. KESHRI PRASAD

JUDGEMENT

(1.) This application in revision is directed against an order of the Subordinate Judge II, Arrah dated the 19th November, 1959, whereby he has, after the preliminary decree in a suit for partition, disallowed the claim of the plaintiff-petitioner for past profits for three years preceding the date of the suit on the ground that the petitioner had not paid the ad valorem court-fee thereon. The relevant portion of the order is to the following effect:

(2.) It would appear that the plaintiff who is a minor, through his sister, had filed a partition suit, No. 35 of 1956, for partition of his one-third share in the property of the family. The allegations in the plaint were that the different branches of the family were possessing land separately, but the defendants first party had usurped also the land and the income thereof, which were in the plaintiff's share. The plaintiff, accordingly, sued for partition. Apart from the prayer for partition, there was a further prayer for rendition of accounts of the income for three years preceding the date of the suit in respect of the income of the property alleged to have been usurped by the defendants first party. The suit was decreed ex parte declaring that the plaintiff was entitled to get one-third share in the properties and accordingly, a preliminary decree was passed, but there was no mention either in the order or in the preliminary decree regarding the plaintiff's claim for rendition of accounts.

(3.) After the preliminary decree, there was a pleader commissioner appointed for effecting partition. The plaintiff filed a petition on the 5th June 1958, for directing the defendants 1st party, to file an inventory" of the properties with accounts before the pleader commissioner. But this petition was rejected, as this was not within the scope of the work of the pleader commissioner. On the 9th June 1938, again the plaintiff filed another petition before the court for giving a direction to the defendants to file an inventory and render accounts before the pleader commissioner. The plaintiff was directed to file a separate petition as the one filed on the 9th June 1958, contained more than one prayer. The plaintiff, thereafter, filed another petition on the 12th June 1958 making the same prayer that the defendants should file an inventory and render accounts before the pleader commissioner. The court passed an order directing the defendants to do so. Again, on the 10th December 1958, there was a similar direction given by the court to the defendants to file an inventory and render accounts before the pleader commissioner. The defendants' lawyer, thereafter assured the court that the defendants would file an inventory with accounts before the pleader commissioner by the 3rd January 1959; but it seems, the defendants never filed any inventory or accounts of any property before the pleader commissioner. The commissioner submitted his report on the 3rd February 1959, stating that the defendants did not file any inventory and accounts in spite of the court's order dated the 12th June, 1958, and the 10th December 1958, and the commissioner's own requests. Some objections were filed by the parties to the commissioner's report & after hearing the objections, the report of the commissioner regarding allotment of properties to the different parties was confirmed on the 7th July 1959 and an order was made for preparing the final decree on the plaintiffs filing necessary stamps for the purpose.