GNANAPRAKASA MUDALIAR Vs. B ANANDATHANADAVAN

JUDGEMENT

(1.) The defendants 1, 5 and 6 in O.S. No. 152/1960 on the file of the District Munsif, Villupuram are the appellants herein. The respondents herein had filed the said suit, claiming partition of 2/3rd share. A preliminary decree was passed by the trial Court on 31-3-1962. Subsequently a final decree was also passed on 15-4-1964 in I.A. 828/1962. The respondents took possession of the properties on 26-12-1974. So far as items 4 to 8, 15, 17, 25 and 26 of the plaint schedule properties are concerned, because of the pendency of the second appeal which was disposed of in the year 1967, the final decree was passed separately on 15-7-76 in I.A. 542/1969. The respondents took possession of their share in the above said items on 22-9-1976.

(2.) After taking delivery, the respondents filed an application I.A. 3183/82 for ascertainment of the mesne profits from 25-11-59 to 22-9-76. The trial Court granted a decree for mesne profits subject to payment of court fees. Aggrieved by the same, the appellants filed an appeal A.S. 70/83 on the file of the Sub-Court, Villupuram. In and by his judgment dated 31-3-84 the learned subordinate Judge confirmed the decision of the trial court. Hence the present second appeal has been filed.

(3.) The following substantial question of law was formulated at the time of admission of the second appeal : "Whether the finding of the lower appellate Court on the question of maintainability is correct in view of the decision of the Supreme Court reported in AIR 1960 SC 941?"