- (1.) HEARD the learned counsels for the parties.
(2.) THE Civil Misc. Stay No. 2995/08 has been filed by the appellant Smt. Hazzan Shakuran in the CFA No. 537/08 seeking stay of the operation of the impugned judgment and decree dated 8.8.08 passed by the trial court. The Misc. Application No. 34128/09 has been filed by the appellant Ismail Khan and Islamudeen in the CFA No. 178/09 (respondents in CFA No. 537/08 hereinafter referred to as the respondents for the sake of convenience) seeking mesne profits @ Rs. 7500/-. The Civil Misc. Application No. 3/10 has been filed by the respondents in the S.B.Civil First Appeal No. 178/09 seeking stay of the impugned judgment and decree passed by the trial court. It has been submitted by the learned counsel Mr. R.K. Daga for the appellants that the trial court has passed the preliminary decree partitioning the property in question which is under challenge and, therefore, the operation of the said decree is required to be stayed. He further submitted that the appellants being in lawful possession of the suit property, no mesne profits should be awarded to the respondents. He has relied upon the judgments of the various High Courts in support of his submissions. As against that the learned counsel Mr. Suresh Goyal for the respondents has submitted that the trial court having defined the share of the appellants in the suit property only to the extent of 1/3rd, and since the appellants are in possession of the entire property, the respondents would be entitled to the mesne profits in respect of the 2/3rd part of the property which has fallen into their share and which is in the possession of the appellants. Having regard to the submissions made by the learned counsel for the parties and the impugned judgment and decree passed by the trial court, it appears that the respondents-original plaintiffs and the appellants-original defendants are the legal representatives of Late Shri Haji Idu Khan. The respondents had filed the suit seeking partition of the property in question belonging to the said Shri Haji Idu Khan, in which the trial court vide the impugned judgment has held interalia that the respondents-plaintiffs had 2/3rd share in the property in question. Being aggrieved by the said judgment and decree, the plaintiffs and the defendants have filed their respective appeals before this court. Since both the respective appeals have already been admitted, the validity of the impugned judgment and decree, shall be examined at the time of final hearing of the appeals. However, without entering into the merits of the appeals, it would be in the fitness of the things if the parties are directed to maintain status-quo as regards the suit property and the drawing up of the final decree is stayed during the pendency of the appeals. So far as the mesne profits claimed by the respondents against the appellants with regard to 2/3rd share in the property in question is concerned, as rightly submitted by the learned counsel for the appellants Mr. Daga, the appellants being co-sharers of the property, and who are in peaceful possession of the suit property could not be said to be in wrongful possession as contemplated under Section 2(12) of CPC and, therefore, the respondents could not claim mesne profits against them. Mr. Daga has rightly relied upon the judgments of the High Court of Kerala reported in AIR 1991 Kerala, 94 (Muhammed Haneefa Rowther Vs. Sara Umma and Ors.) and of the Patna High Court reported in AIR 1980 Patna, 106, (Shambhu Dayal Khetan and Ors. Vs. Motilal Murarka and Ors.), in which it has been observed interalia that as per the settled legal position, the possession of the co-sharer can never be said to be wrongful as he has right and interest in every inch of the undivided property. In that view of the matter, the application of the respondents seeking mesne profits deserves to be dismissed.
(3.) IN view of the above, the parties are directed to maintain status-quo as regards the alienation, transfer and creation of third party interest in the suit property, and further drawing up of final decree is also stayed. Accordingly the application being No. 2995/08 and Civil Misc. Application No. 3/10 are allowed, whereas the Civil Misc. Application No. 34128/09 is dismissed.;