AMRUTRAO VINAYAKRAO DESHMUKH Vs. TRIMBAKRAO

JUDGEMENT

(1.) THIS appeal relates to a claim for profits for the years 1920-21, 1921-22, and 1922-23 which the respondents Trimbak Rao and Daulat Rao had filed in the Court of Subordinate Judge, First Class, Buldana, on 3rd December 1924, against the appellant Amritrao. It is an admitted fact that the respondents had filed a suit for partition in 1917 in the Court of third Additional District Judge, Buldana, against the appellant, and that the partition suit was continued in the Akola Court, and ended in a compromise between the parties in 1920. The details of the compromise have been stated in para. 3 of the plaint and are contained in Ex. P-133. The parties according to the terms settled between them, referred the question of actual partition to arbitrators, who gave their award in 1923. The respondents in this suit claimed their share of the profits for the period during which the appellant was in possession, after the parties had determined finally the definite shares to which they were entitled. The profits claimed are from the following four sources: (1) Lands other than home-farm. (2) Home-farm lands. (3) Mango trees. (4) Guava trees.

(2.) THE appellant denied the respondents' claim, contested the various items for which the claim was made and expressed his willingness to pay such an amount to the respondents as might be decreed by the Court. Para. 14 of the written statement ran as follows: After taking the accounts as per schedule if anything is found due to plaintiffs, it may be decreed.

(3.) GROUND 1 in the memorandum of appeal ran as follows: The lower Court should have held that the-suit as filed for claiming mesne profits was not maintainable and was liable to be dismissed.