GULUSAM BIVI Vs. AHMADSA ROWTHER

JUDGEMENT

(1.) This appeal relates to appellant s claim to future mesne profits on the property awarded to her by the decree in a partition suit in which she was 10th defendant. The preliminary decree in the suit is silent on the subject of future mesne profits on appellant s share and the question is whether she is entitled to ask that they should be determined and included in the final decree.

(2.) In my opinion she is not. We are not now concerned with the decision of the Full Bench in Doraisami Aiyar v. Subramania Aiyar 42 Ind. Cas. 929 ; 41 M. 188 ; 22 M.L.T. 484 ; 33 M.L.T. 699 ; (1917) M.W.N. 847 ; 6 L.W. 784 that where the decree in a suit for possession leaves a claim to mesne profits undecided, a fresh suit for the mesne profits will lie. What we have to determine is the extent to which the final decree in a partition suit can provide for matters which are not settled or directed to be enquired into by the preliminary decree. The relevant provisions of law are Rules 12 and 18 of Order XX, which have to be read together, and in my opinion their effect is against appellant. A simple suit for possession of specific immoveable property, uncomplicated by any question of partition, is governed specifically by Rule 12: and it seems clear to me that in such a suit the final decree could only provide for mesne profits, past or future, where an enquiry into the same had been directed by the preliminary decree. If, either intentionally or inadvertently, the Court had omitted to direct such an enquiry, the aggrieved party must get the preliminary decree amended; no application for mesne profits not provided for in the preliminary decree would be entertained in framing the final decree. This was not, in fact, contested by the learned Vakil for appellant.

(3.) I fail to see why the same principle should not be applied to preliminary and final decrees in partition suits. Rule 18 (2) says: The Court may, if the partition or separation cannot be conveniently made without further enquiry, pass a preliminary decree declaring the rights of the several parties interested in the property, and giving such further directions as may be required.