PONNUSWAMI UDAYAR Vs. SANTHAPPA UDAYAR

JUDGEMENT

(1.) O. S. No. 459 of 1944 on the file of the Court of the District Munsif of sankaridrug at Salem, was a suit for partition and separate possession of a share in the plaint mentioned properties. The second plaintiff died during the pendency of the suit. The trial court granted a decree in favour of plaintiffs 1 and 3 for 3/16ths share in item I of the suit properties, but dismissed the suit in regard to the other items. On appeal from the said decree in A. S. No. 33 of 1947, on the file of the Court of the Subordinate Judge, Salem, plaintiffs 1 and 3 were granted a preliminary decree for partition of one-tenth share in all the suit items of properties. In S. A. No. 1985 of 1958 this Court affirmed that decree. There were several defendants in the suit, some of whom were alienees of portions of the suit properties.

(2.) PLAINTIFFS 1 and 3 filed an application I. A. No. 783 of 1954 in the District Munsif court, Sankaridrug under Order 20 Rules 12 and 18 Civil Procedure. Code, for an enquiry and determination of the mesne profits payable to them by the defendants from the date of the institution of the suit till the delivery of possession, and to give a final decree after such assessment of mesne profits. This was opposed by defendants 1, 4, 6 and 7 in the suit. The fourth defendant was an alienee from defendants 1 to 3. Defendants 6 and 7 claim to have purchased 3/4th share of the suit properties from the first and the fourth defendants in survey No. 107/3 and 108 of Koneripatti village. These defendants contested the application for ascertainment of mesne profits and for the passing of a final decree for recovery of such profits on the ground that the application was not maintainable. The learned district Munsif upheld the defendants' plea and dismissed the application. The aggrieved plaintiff challenged the correctness of that decision before the Sub court, Salem in A. S. No. 59 of 1959. The learned Subordinate Judge held that the application was maintainable and remanded the proceedings to the trial Court for ascertainment of the proper quantum of mesne profits due to the plaintiffs. This order of remand is called in question in this appeal by defendants 1 and 4.

(3.) IT must be stated that in the plaint there is no claim for recovery of future mesne profits accruing due after the institution of the suit till the date of delivery of possession of the properties allotted to the share of the plaintiffs under the final decree. The claim is made for the first time in the application, out of which this appeal arises which is essentially an application for the passing of a final decree in a partition suit. In this application, the plaintiff estimates that their share of the net income of the properties would be not less than Rs. 100/- per annum. It is also common ground that no direction for an enquiry under Order 20 Rules 12 and 18 civil Procedure Code regarding future mesne profits is contained in the preliminary decree in the suit. On these facts the question that arises for consideration is whether the application filed by the plaintiffs in the trial Court is maintainable in law.