Mahapatra, J. - (1.) This appeal is directed against an adverse order passed on an application for determination of mesne profits till the date of delivery of possession of property to the applicant who filed partition Suit No. 89 of 1932 with a prayer for mesne profits, past, pendente lite and future. The facts, in brief, leading to this application were as follows.
(2.) The present appellant filed a partition suit claiming his share in the suit property. In that suit he also prayed that a decree might be passed for past mesne profits as well as pendente lite and future. The defendants also filed title Suit No. 72 of 1933, in which they ask for a declaration of their title and for adjudication that the plaintiff of the partition suit had no title whatsoever to the said property. Those two suits were tried together, and the trial Court dismissed the partition suit and decreed the title suit of the defendants. Those cases were taken to the High Court without any success, whereupon the plaintiff of the partition suit went to the Judicial Committee, and that appeal was disposed of on the 21st November, 1949. It was held by their Lordships that the title of the defendants of the partition suit (who were the plaintiffs in Title Suit No. 72 of 1933) had been completely extinguished by the adverse possession of the plaintiff of the partition suit for a period of more than twelve years. They found that on the 23rd September, 1920, the plaintiff was formally installed in possession by the officer of the Court. The partition suit was instituted in 1932, whereas the title suit was instituted in 1933. By the date the title suit was filed in Court, the plaintiff had been in possession adverse to the defendants (plaintiffs of the title suit) for more than twelve years. In that view, the title suit was dismissed and the partition suit was decreed by the Judicial Committee. The ordering portion in the judgment delivered by Lord Radcliffe was : "If this is so, it follows that when the Title Suit was instituted on ' 7th November, 1933, the appellant had been for over 12 years in adverse possession Consequently the suit must be treated as barred by limitation. If the respondents are thus precluded from disputing the appellant's title to his share, it follows that the Partition Suit must succeed. Their Lordships will therefore, humbly advice. His Majesty that this appeal should be allowed and that the two decrees of the Additional Subordinate Judge of Darbhanga dated 30th June, 1935, and the two Decrees of the High Court at Patna dated 20th March. 1942 should be set aside and that the respondents should pay to the appellant his costs in those Courts. In place of these decrees the Title suit should be dismissed and the partition suit remitted to the Court of the Additional Subordinate Judge at Darbhanga with instructions to proceed with the case in accordance with this judgment. Their Lordships will humbly advice His Majesty accordingly. The respondents must pay the appellant's costs of this appeal."
(3.) Thereafter, the plaintiff took steps in his partition suit for appointment of a pleader commissioner to effect partition of the properties by metes and bounds, and on the 16th June, 1952, the Court, after accepting the commissioner's report, directed final decree to be prepared, and on the 7th August, 1952 the final decree was sealed and signed.;