Rattan Lal vs Madan Lal Malhotra and others

Surinder Singh, J.—This Revision Petition is directed against an interlocutory order passed by the Subordinate Judge First class, Ludhiana dated October 11, 1977, In the circumstances which are briefly as follows A suit for partition of a certain property was filed by the petitioner against the other co-sharees and it is not disputed that a preliminary decree to the extent of one-sixth share was passed in favour of the petitioner in that suit. After the passing of the preliminary decree and before the final decree was passed, an application under Order XX, rules 12 and 18, Code of Civil Procedure, was filed by the petitioner before the trial Court. The stating that while passing the preliminary decree no directions regarding mesne profits had been given by the trial Court petitioner claimed that respondent No. 1 was utilising the common property by the running a hosiery factory and using it as his residence. The petitioner, thus, made a grievance that being an owner of the property in dispute to the extent of one-sixth share, he was entitled to the mesne profits from the date of the institution of the suit till the time when the property was actually partitioned. The application was resisted by the contesting respondent and after hearing the learned counsel for the parties and without going la to the merits of the application, the trial Court dismissed the same as per the impugned order, observing that at the time of the passing of the preliminary decree issue, No. 1 had been decided in favour of the petitioner as per which It was held that the petitioner is in joint possession of the property in dispute. The trial Court concluded from this circumstance that the petitioner being in joint possession of the property, the question of assessment of mesne profits did not arise.

I have heard the learned counsel for the parties in this matter. Mr. Y.P. Gandhi, learned counsel for the petitioner has placed relience upon Ponnuswami Udayar and Another Vs. Santhappa Udayar and Others, wherein it was held that in a partition suit, an application for ascertainment of future mesne profits can be filed so long as the suit is pending and so long as no final decree has been passed even though the plaint does not specifically pray for the granting of such relief and the preliminary decree does not provide for it. It was further observed in this case that the mesne profits accuring for from the properties forming the subject matter of the division and referable to the properties which are eventually allotted to the share of the successful plaintiff, form part and parcel of the corpus itself and are as much in the hotchpot as the lands themselves Another observation pertinent in the same context is that it would be most inequitable and unjust to compel the plaintiff to sue separately for future mesne profits and it is certainly not the policy of the law to encourage multiplicity of proceedings While holding such, the learned Single Judge relied upon an earlier Full Bench decision of the Madras High Court in Babburu Basavayya and Others Vs. Babburu Guravayya and Another, . The facts of both these authorities are absolutely at per with those in the present case and the dictum of law laid down in these authorities is directly attracted.

Mr. V.K. Jhanji, learned counsel for the contesting respondents has however, sought reliance from the observations in Ajodhaya Missir and others v. Nageshwar Prasad alias Munaji 1963 BLJR 297 wherein a Division Bench of that Court held that in the absence of the allegation made in the plaint that there was any dispute on the part of the defendants or that the plaintiffs had been excluded from there share of the profits, there is no legal foundation for the claim of mesne profits made by the plaintiffs. It was also held that the order of the Court directing an enquiry for ascertainment of mesne profits from the date of the institution of the suit till the date of the passing of final decree is defective because of an error of jurisdiction. The learned counsel has also referred to some observations in the concluding portion of the judgment in Mohd. Amin and Others Vs. Vakil Ahmed and Others,

Dealing first with the matter in Ajodhaya Missir''s case (supra) it would be observed that the said authority is easily distinguishable on facts. In that case the, Bench gave dus importance to the circumstance that there was no allegation by the Plaintiffs of having been excluded from their share of the profits In the case in hand, such an allegation has been specifically made in the application which has been decided by means of The impugned order. It was stated in the application that respondent No. 1 had been utilising the common property by running a hosiery factory and by residing in the same. These allegations tantamount to saying that the petitioner had been ousted from his rightful share of one-sixth in the property forming the hotchpot. In view of this claim, it cannot be said that there was no claim of ouster made by the petitioner. Ajodhaya Missir''s case (supra) is, therefore, of no avail to the respondents.

So far as the Supreme Court authority is concerned, it is pertinent to note that it deals with a ease in which the suit was for declaration regarding validity of a deed of settlement and it was net a suit for partition of property. The Supreme Court authority was also noticed in the Madras authority, referred to above and reliance was placed in regard to the interpretation of the same as made in Kasibhatla Satyanarayana Sastrulu and Others Vs. Kasibhatla Mallikarjuna Sastrulu, to the effect that the decision of the Full Bench in Babburu Basavayya''s case (supra) was unaffected by anything contained in the decision of the Supreme Court in Mohd. Amtn''s case (supra) I am in respectful agreement with this view.

The order of the trial Court summarily rejecting the application of the petitioner cannot, therefore, be sustained.

The Revision Petition is accepted and the trial Court is directed to decide the application on its merits after giving the parties opportunity to prove their respective contentions. It may be stated without reserve that nothing said in this order would be deemed to be an expression of opinion in regard to the merits of the case or any point which may be the subject-matter of controversy during the hearing of the case before the trial Court.

The parties, through their counsel have been directed So appear before the trial Court on the date already fixed.