LAKSHMI Vs. MEENAKSHI AMMAL

JUDGEMENT

(1.) The plaintiff in O.S. No. 26 of 1976, Sub-Court, Devakottai, is the petitioner in this civil revision petition, which is directed against the order of the District Court, Ramanathapuram at Madurai in I.A. 148 of 1980 in A. S. No. 154 of 1977, declining to review the judgment dated 13-12-1979 in so far as the refusal of the relief of future mesne profits is concerned. The petitioner herein instituted O. S. 26 of 1975 against the respondent herein praying for partition and separate possession and future mesne profits in respect of a house bearing door No. 37 in T. S. No. 161 in Ward No. 18 of Karaikudi Municipal Town. Admittedly, this house was owned by Rajammal and on her death leaving behind her three sons, they became, entitled to the house in question and the petitioner purchased an undivided one-third share from the eldest of the sons. The other two sons purported to convey a half share each in the property in favour of the respondent herein ignoring the rights of the vendor of the petitioner. Stating that she is entitled by reason of the purchase to a one third share in the property and claiming that as co-owners the petitioner as well as the respondent were in joint possession of the properties, the petitioner prayed for the relief's aforesaid in the suit instituted by her. That suit was resisted by the respondent who set up a prior partition between two of the sons of the original owner to the exclusion of the vendor of the petitioner herein and it was therefore contended that the petitioner did not acquire any title to the property by reason of her purchase from the son of the original owner who was so excluded.

(2.) The learned Subordinate Judge, Devakottai, on a consideration of the oral as well as the documentary evidence, found that the vendor of the petitioner had title to one third share in the property and that the respondent was entitled to the remaining two third. It was also further found that a dispute was going on between the petitioner and the respondent regarding the possession of the property and that the respondent cannot claim to have totally excluded the petitioner from the joint possession of the property. In this view, the payment of court-fee under Sec. 37 (2) of the Court-fees Act was held to be correct. While granting a preliminary decree for partition in favour of the petitioner directing the division of the suit property into three equal shares and the allotment of one such share to her, the learned Subordinate Judge left open the question of mesne profits to be decided in a separate enquiry under O. 20, R. 12, C. P. C. An appeal against this judgment and decree in A. S. 154 of 1977 was preferred by the respondent to the District Court, Ramanathapuram at Madurai. In that appeal, no specific objection was raised by the respondent herein to the decree of the trial Court in so far as it proceeded to direct an enquiry into mesne profits under O. 20, R. 12, C. P. C. The learned District Judge held that the respondent had not established the partition of the properties of Rajammal in the manner set out by her and therefore, the petitioner's vendor, who was one of the sons of Rajammal, was also entitled to one-third share in the properties and as such, the decree granted by the trial Court in favour of the petitioner has to be accepted as correct; but in relation to the claim of the petitioner for mesne profits, the learned District Judge dealt with and disposed of the matter in para 11 of his judgment in the following manner:-

(3.) The learned counsel for the petitioner would strenuously urge that the lower appellate Court had proceeded on an erroneous impression that the petitioner was in joint possession of the properties and therefore was not entitled to claim mesne profits. He would point out that the joint possession was that of a cosharer for purposes of valuing the suit and for payment of court-fee and that in the absence of any finding to the effect that the petitioner was in physical possession of one-third share purchased by her, the petitioner cannot be deprived of her right to secure mesne profits under O. 20, R. 18,C.P.C. The learned counsel would further submit that to the extent to which the lower appellant Court was under a mistaken impression that the petitioner was in physical possession and proceed to deprive the relief of mesne profits, though under. O.20, R. 12, C.P.C., that would constitute an error apparent on the face of the record justifying the review of the judgment and decree and the restoration of the relief of mesne profits under, O. 20, R. 18, C.P.C.Per contra, the learned counsel for the respondent would, with equal,vigour, contend, that the petitioner, if at all she was aggrieved by the judgment and decree of the lower appellate Court in, A. S.154 of 1977, should have preferred a second appeal and not having done so, cannot be heard to complain, that the, deletion of the relief of mesne profit is not correct or that it should be reviewed. In addition, it was also contended that there was no error apparent on the face of the record on the facts, and circumstances of the case, which would justify the exercise of the review jurisdiction and therefore, the Court below was quite justified in declining to countenance the petition, filed, by the petitioner herein in that regard.