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Judgment
Since both the miscellaneous petitions arise out of the common proceedings and challenge the same orders, they are being considered and disposed of by this common order.
M.P. No.1438/2026 challenges the orders dated 08.01.2026, 09.01.2026 and 20.01.2026 passed by the 6th District Judge, Gwalior in RCS-A No.800002/2006 whereby, the application preferred by respondent No.2/plaintiff under Order XX Rule 12 read with Section 151 of the Code of Civil Procedure, 1908 [hereinafter referred to as "CPC"] seeking determination of mesne profits has been considered and disposed. The petitioner in M.P. No.1438/2026 is defendant No.1 in the original suit.
M.P. No.1179/2026 has been preferred against the same order dated 20.01.2026 whereby, the application preferred by respondent No.2/plaintiff has been considered and disposed. The petitioner in M.P. No.1179/2026 has been impleaded in the proceedings on account of the death of defendant No.3, Smt. Nalini Awad.
Brief facts leading to filing of these petitions are as under:-
The respondent No.2/plaintiff filed a suit for partition against the petitioner and the other defendants with a pleading that she is the daughter of Smt. Nalini Awad and Late Shri Sambhaji Rao Awad, who died on 05.09.1974. After his death, the plaintiff along with the petitioner and other defendants became co-owners of the suit property and, therefore, it was the case of respondent No.2/plaintiff that she is entitled to 1/4th share in the property and the relief of partition of the suit property by metes and bounds was also prayed for. The learned trial Court vide judgment dated 05.09.2008 passed a preliminary decree holding the plaintiff/respondent No.2 to be entitled to 1/4th share in the suit property and a decree of permanent injunction was also issued against the defendants. It is not in dispute between the parties that the aforesaid judgment and preliminary decree dated 05.09.2008 has been affirmed up to the Apex Court and now, the proceedings for passing of the final decree of partition is pending before the trial Court. It appears that defendant Smt. Nalini Awad has since expired and now the partition is to be made in the proportion of 1/3rd share each.
In the pending proceedings, an application under Order XX Rule 12 read with Section 151 of CPC was filed by respondent No.2/plaintiff contending that though she has 1/3rd share in the property, the petitioner in M.P. No.1438/2026 is running a school in the name of “ Orchid” in the premises jointly owned by the parties, without her permission. It was further stated in the application under Order XX Rule 12 that the petitioner/defendant No. 1 is earning an income of approximately Rs.20,00,000/- per month from the said school and that the petitioner/defendant No. 1 is not handing over possession of the plaintiff's share in the property, on account of which the respondent No.2/plaintiff is being deprived of using the same as per her wishes. Since the petitioner/defendant No. 1 is enjoying the property forming part of the share of the plaintiff, it is the respondent No.2/plaintiff's case that she is entitled to recover mesne profits being derived by the petitioner/defendant No.1 from the suit property. Accordingly, a prayer was made before the learned trial Court to hold an inquiry into the income being derived from the suit property by the petitioner/defendant No. and to award mesne profits to the plaintiff.
The petitioner/defendant No. 1 objected to the application filed by respondent No.2/plaintiff on the ground that there is no prayer made in the plaint as regards grant of mesne profits and, therefore, the trial Court cannot go behind the preliminary decree and consider the prayer for mesne profits made by respondent No.2/plaintiff.
The learned trial Court vide order dated 08.01.2026, while considering the application so preferred by respondent No.2/plaintiff, opined that before finally deciding the said application, it would be appropriate to ascertain the income being derived from the suit property and also to ascertain as to whether the suit property is being misused by any person and, accordingly, directed the petitioner to remain present in Court along with the relevant accounts pertaining to the income being derived from the suit property and fixed the matter for further consideration on 09.01.2026. On 09.01.2026, since the records as directed by the learned trial Court vide order dated 08.01.2026 were not produced by the petitioner and arguments on the pending application were not advanced, the learned trial Court, while reiterating the directions issued on 08.01.2026, fixed the matter for further consideration on 12.01.2026.
Vide order dated 20.01.2026, the learned trial Court disposed the application under Order XX Rule 12 and directed the petitioner/defendant No. 1 to produce the record pertaining to the income being derived by him by running the school in the suit premises and also to furnish other details so as to assess the rental income which could be derived from the suit property. The trial Court further opined that for determining the aforesaid aspects, an inquiry is necessary and both the parties are required to be heard on the said aspect so that the issue could be decided. However, the prayer made by respondent No.2/plaintiff for appointment of Receiver and assessment of the accounts of the business being run by the petitioner/defendant No. 1 through a Chartered Accountant was rejected and the application under Order XX Rule 12 read with Section 151 CPC filed by respondent No.2/plaintiff was disposed of. These are the orders under challenge in the present petitions.
The learned Senior Counsel appearing for petitioner/defendant No. 1 in M.P. No.1438/2026, by taking this Court through the provisions contained under Order XX Rule 18 of CPC and Order XX Rule 12 of CPC, submits that the suit in question was filed by respondent No.2/plaintiff seeking a decree of partition and possession of her share in the suit property. So also, a decree of permanent injunction till the partition takes place between the parties by metes and bounds. However, no relief as regards grant of mesne profits was prayed for in the suit. He submits that after passing of the preliminary decree in the suit, the final decree is to be passed in terms of Order XX Rule 18 of CPC and the provisions of Order XX Rule 12 are, in fact, not attracted and, therefore, the application filed by respondent No.2/plaintiff under the said provision was itself misconceived and not maintainable.
By referring to the preliminary decree dated 05.09.2008 (Annexure P/2) and the issues framed therein, it is argued by the learned Senior Counsel appearing for the petitioner that the subject matter of the suit filed by respondent No.2/plaintiff is only declaration of her share in the property and possession thereof. Since there is no preliminary decree for grant of mesne profits, while passing the final decree, respondent No.2 cannot claim mesne profits.
It is further argued by the learned Senior Counsel appearing for the petitioner that the judgments of the Apex Court in the cases of Mohd. Amin and Others v. Vakil Ahmad and Others , AIR 1952 SC 358 and R.S. Maddanappa and Others v. Chandramma and Another , AIR 1965 SC 1812 have no applicability in the given facts and circumstances of the case and the said judgments do not deal with the aspect of grant of mesne profits in a partition suit after passing of the final preliminary decree. The learned trial Court has, therefore, erred in placing reliance upon the aforesaid judgments while entertaining the questioned application preferred by respondent No.2/plaintiff.
It is further argued by the learned Senior Counsel appearing for the petitioner that in terms of Section 2(12) of the Code of Civil Procedure, 1908, "mesne profits" are those profits which the person in wrongful possession of such property actually received or might, with ordinary diligence, have received therefrom. However, in the instant case, since the petitioner/defendant No. 1 and respondent No.2 are co-owners of the property in question till it is finally partitioned by metes and bounds, there is deemed possession of all the co-owners over the suit property and, therefore, the petitioner cannot be said to be in “wrongful possession” of the suit property. Thus, on this count also, the claim for mesne profits raised by respondent No.2 is misconceived and baseless.
The learned Senior Counsel appearing for the petitioner places reliance upon the Full Bench judgment of this Court in the case of Amar Singh vs. Chandrashekhar Rao, AIR 1984 MP 1 to contend that the Court has power to pass a decree for mesne profits, provided the suit is for recovery of immovable property and for rent or mesne profits. He submits that in the said case, the judgments of the Apex Court in R.S. Maddanappa (supra) and Mohd. Amin (supra), relied upon by the trial Court, have also been considered and, after considering the said judgments, the Full Bench has held as submitted above. Accordingly, he submits that a jurisdictional error has been committed by the trial Court which deserves interference.
Similar arguments have been advanced by Shri Abhishek Singh Bhadauria, learned counsel appearing for the petitioner in M.P. No.1179/2026. It has also been argued by Shri Bhadauria that in terms of the judgment of this Court in the case of Bajranglal (dead) through LRs. & Ors. vs. Gajanand & Another, 2019 (3) MPLJ 614, mesne profits could not be recovered for more than three years from the date of decree. In the instant case, the trial Court is proceeding to consider the prayer of respondent No.2/plaintiff with effect from the date of passing of the preliminary decree i.e. 05.09.2008 and, therefore, the said claim is barred by limitation.
By referring to the definition of mesne profits as contained in Section 2(12) of CPC, it is further argued that mesne profits do not include profits due to improvements made by the person in wrongful possession. He submits that the construction and running of the school in the premises amounts to an improvement made by the petitioner and, in case any income is derived therefrom, it is not open for respondent No.2 to claim mesne profits arising therefrom.
It is further argued by learned counsel Shri Bhadauria that consideration of the prayer for grant of mesne profits amounts to modification of the preliminary decree, which admittedly does not deal with mesne profits. In the absence of pleadings/prayer in the main case, the prayer for mesne profits is not open for consideration. He further places reliance upon the judgment passed by the Apex Court in Mohd. Amin (supra) to contend that in the said case, the Supreme Court has held that the High Court was in error in awarding the plaintiffs mesne profits though the same had not been claimed in the plaint.
It is further argued that, in the worst scenario, respondent No.2 would be entitled to claim value for the use of the building by the petitioner and not a share in the income derived by running the school. The petitioner could have run the school in some rented premises as well by paying rent. Had it been a situation where, instead of a school, a bank was being run in the premises in question, the trial Court could not have called for the accounts of profits being made by the bank and, therefore, he submits that the order passed by the trial Court deserves interference.
On the other hand, learned counsel appearing for respondent No.2 and respondent No.2 appearing in person through VC oppose the petitions. It has been vehemently argued by respondent No.2, by taking this Court through the proceedings drawn by the learned trial Court on 09.01.2026, that the petitioner in M.P. No.1179/2026, before the trial Court through his counsel, submitted that he is not a party to the proceedings and has nothing to say on the questioned application preferred by respondent No.2/plaintiff. Having said so before the trial Court, the petitioner in M.P. No.1179/2026 cannot be permitted to question the order passed by the trial Court on the questioned application preferred by respondent No.2/plaintiff. It is submitted that having given up the challenge before the trial Court, in the present proceedings arising out of the order passed thereon, the petitioner cannot be permitted to be heard and M.P. No.1179/2026 deserves dismissal on this count alone.
Insofar as M.P. No.1438/2026 is concerned, it is submitted by respondent No.2 that there is no bar in filing an application seeking grant of mesne profits after passing of the preliminary decree and, up to the stage the suit is finally disposed of and a final decree is passed, it is always open for respondent No.2 to seek the relief of mesne profits by filing an appropriate application, as the share and entitlement of respondent No.2/plaintiff to possession over her share in the property stood crystallized way back in the year 2008. The petitioner is earning profits by wrongfully remaining in possession over her share of the property and, therefore, he is bound to pay mesne profits to respondent No.2 arising out of the property.
It is further argued that the learned trial Court has passed a just and reasoned order. The petitioner in M.P. No.1438/2026 submitted his objections before the trial Court, which have been duly considered and rejected. The order passed by the trial Court does not suffer from any jurisdictional error. The issue involved in the case stands answered by the Apex Court in R.S. Maddanappa (supra) and the subsequent judgment in Choudhappa and Another vs. Choudhappa (since deceased) through Legal Representatives and Others, (2024) 9 SCC 236 . Accordingly, it is submitted by the respondent that the petitions, being misconceived, deserve dismissal and the interim order passed earlier deserves to be vacated.
Heard the learned counsel for the parties and perused the record. Also considered the written submissions submitted by the petitioner in M.P. No.1179/2026 and by the respondent No. 2.
Record indicates that M.P. No.1179/2026 has been filed with the pleadings that after passing of the decree, in execution proceedings, the Executing Court is considering the prayer made by respondent No.2/plaintiff for grant of mesne profits. Record of M.P. No.1179/2026 further indicates that the petitioner persuaded this Court to pass an ex parte interim order of stay on 16.03.2026 by making the same submissions. However, during the course of arguments, it was admitted by learned counsel appearing for the petitioner in M.P. No.1179/2026 that the questioned application was filed by respondent No.2/plaintiff in the pending civil suit and not in the execution proceedings. It is also admitted by him that even after passing of the preliminary decree of partition, the suit proceedings continue till the final decree is passed. Be that as it may.
Insofar as the objection regarding maintainability of M.P. No.1179/2026 at the behest of petitioner Sambhaji Rao Awad on the ground that since he gave up his challenge before the trial Court, he cannot be permitted to question the correctness of the order passed by the trial Court on merits is concerned, this Court is not inclined to dilate on the said aspect, as the orders impugned are also under challenge in M.P. No.1438/2026 and, therefore, this Court proceeds to examine the contentions advanced by the rival parties on merits.
The perusal of the order dated 20.01.2026 impugned in the present petitions would indicate that the learned trial Court has not allowed the relief claimed by respondent No.2/plaintiff in her questioned I.A. in its entirety, but has directed the petitioner/defendant No. 1 to produce the record pertaining to the income being derived by him by running the school in the suit premises and also to furnish other details so as to assess the rental income which could be derived from the suit property. The learned trial Court has opined that for determining the aforesaid aspects, an inquiry is necessary and both the parties are required to be heard on the said aspect so that the issue can be decided. In sum and substance, the learned trial Court has proceeded to hold an inquiry into the profits received or realised by one or some of the parties during the pendency of the suit so that the other party may be awarded her proper share of such profits under the final decree. In view whereof, the ground of limitation and quantification etc, to be based upon rental value etc. raised by the petitioner in MP No.1179/2026, are not required to be gone into at this stage, as the orders impugned in the petitions only initiates an inquiry and, therefore, the judgments also relied upon by the learned counsel appearing for the petitioner on the said aspect may have no applicability at this stage.
The sole issue, therefore, arising for consideration by this Court in the given facts and circumstances of the case is whether, after passing of a preliminary decree in a suit for partition and possession, is it open for the trial Court to hold an inquiry into the profits received or realised by one or some of the parties during the pendency of the suit and to award the other party her proper share of such profits under the final decree, even though there is no preliminary decree for grant of mesne profits?
The aforesaid issue initially came up for consideration before the Full Bench of the Madras High Court in the case of Babburu Basavayya v. Babburu Guravayya, AIR 1951 Mad 938, wherein it was held as under:-
"We may now summarise our conclusions. A partition suit in which a preliminary decree has been passed is still a pending suit and the rights of the parties have to be adjusted as on the date of the final decree. In such a suit the Court has not only to divide the common properties but has also to adjust the equities arising between the parties out of their relation to the common property the property to be divided. The preliminary decree determines the moieties of the respective parties and thereby furnishes the basis upon which the division of the property has to be made. There are other matters in addition to the moieties of the parties that have to be considered and decided before an equitable final partition can be effected. Among them are the realisation of common outstandings, the discharge of common liabilities, the distribution of the profits of the properties realised pending the suit, either in cash or by allotment of property of the requisite value, the grant of owelty, the provision of maintenance to parties entitled thereto, the allotment of lands on which improvements have been effected to the sharer who has improved them, the allotment of alienated lands to the share of the alienor and other similar matters. Even after the passing of the preliminary decree it is open to the Court to give appropriate directions regarding all or any of these matters either suo motu or on the application of the parties. Order 20, rule 18, Civil Procedure Code, does not prohibit the Court from issuing such directions after the stage of a preliminary decree. It is open to the Court in order to prevent multiplicity of litigation and to do complete justice and effect an equal division of all the common assets and properties among the parties, to direct an enquiry into the profits received or realised by one or some of them during the pendency of the suit and to award the others their proper share of such profits under its final decree. This enquiry can be ordered either as part of the preliminary decree itself or subsequently as a step towards the passing of the final decree, and in either case the result of the enquiry has to be incorporated in the final decree."
[Emphasis Supplied]
The aforesaid Full Bench judgment of the Madras High Court was thereafter followed by this Court in the case of Kashi Bai v. Madholal, 1981 (2) MPWN 81, wherein a similar application, as filed in the instant case, was rejected by the learned trial Court. While considering the civil revision preferred against the said order, this Court held as under:-
"The plaintiff also filed an application in the Court below for holding an enquiry to determine future mesne profits under Order 20, rule 12 C.P.C. and that has been rejected as not maintainable by order dated 18.01.1974. It is against this order that Civil Revision No.342 of 1974 has been filed by the plaintiff.
The Full Bench decision of the Madras High Court in Basavayyas case (AIR 1951 Mad 938 ) fully supports the contention of Shri Ravish Agrawal. This point has been dealt with at length therein and this was the very question which arose for determination in that case. There also, a preliminary decree for partition of joint Hindu family properties was passed and thereafter the plaintiff made an application for an enquiry into future mesne profits and prayed that the same be taken into account while drawing up the final decree. The plaintiffs application for the purpose was opposed by the defendant on the same ground. The trial Court rejected the defendants objection against which a revision was rejected by the Madras High Court. While deciding this point, the nature of a partition suit was indicated and it was pointed out that a suit for partition by a member of a joint- Hindu family is substantially a suit for an account of the joint family properties on the date of the suit as well as all the profits received by the Manager since that date, so that the profits should also be divided and his proper share given to him. It was also pointed out that a direction for an enquiry into the profits of the common property received or realised by one of the parties during the pendency of the suit may be made even after passing of the preliminary decree and there is nothing in Order 20, rule 18, interdicting such procedure. It was held that even after the passing of the preliminary decree it is open to the Court to give appropriate direction regarding all or any of these matters either suo motu or on the application of the parties. O.20 R.18, Civil Procedure Code does not prohibit the Court from issuing such directions after the stage of a preliminary decree. This course, it was pointed out by the Full, Bench, was just and proper to adjust equities arising between the parties out of their relations to the common property. This decision, therefore, clearly support, the plaintiffs contention in the present case. It is not necessary to refer to the other decisions taking the same view and it is sufficient to refer to Sarkars Code of Civil Procedure, 6th Edn. at page 599, where the law has been summarised by saying that Order 20, rule 12 cannot at all apply to a partition suit and the profits to be accounted for are not mesne profits. A partition suit is covered by Order 20, rule 18.
The view taken by the Madras High Court in Basavayyas case was followed by a D. B. of this Court in Shivji v. Deoji, 1973 JLJ 388 . I am accordingly bound by this view unless the view taken in Deepchands case (1969 JLJ 54J) is to the contrary and of greater weight. AIR 151 Mad. 938 and 1973 JLJ 388 relied on. 1969 JLJ distinguished. Appeal and revision allowed."
[Emphasis Supplied]
The aforesaid judgment of the Full Bench of the Madras High Court in Babburu Basavayya (supra) has subsequently also been followed by the High Court of Allahabad in the case of Govind Ram v. Ganesh Ram and Ors., decided on 05.10.1978 in Civil Revision No.1717/1975 and by the High Court of Delhi in the case of Sita Kashyap and Anr. v. Harbans Kashyap and Ors., 2011 (123) DRJ 52.
Insofar as the reliance placed by the learned counsels appearing for the petitioners on the judgment of the Apex Court in the case of Mohd. Amin (supra) is concerned, the judgment of the Full Bench of the Madras High Court in the case of Babburu Basavayya (supra) was not taken into consideration by the Apex Court in Mohd. Amin (supra). The Full Bench judgment of the Madras High Court in Babburu Basavayya (supra) has subsequently been approved by the Apex Court in the case of Gopalakrishna Pillai and Ors. v. Meenakshi Ayal and Others , AIR 1967 SC 155. The relevant paragraph thereof reads as under:-
"8.Order 20 Rule 12 enables the Court to pass a decree for both past and future mesne profits but there are important distinctions in the procedure for the enforcement of the two claims. With regard to past mesne profits, a plaintiff has an existing cause of action on the date of the institution of the suit. In view of Order 7 Rules 1 and 2 and Order 7 Rule 7 of the Code of Civil Procedure and Section 7(1) of the Court Fees Act, the plaintiff must plead this cause of action, specifically claim a decree for the past mesne profits, value the claim approximately and pay court-fees thereon. With regard to future mesne profits, the plaintiff has no cause of action on the date of the institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay court-fees thereon at the time of the institution of the suit. Moreover, he can obtain relief in respect of this future cause of action only in a suit to which the provisions of Order 20 Rule 12 apply. But in a suit to which the provisions of Order 20 Rule 12 apply, the Court has a discretionary power to pass a decree directing an enquiry into the future mesne profits, and the Court may grant this general relief, though it is not specifically asked for in the plaint, see Basavayya v. Guruvayya [ILR 1952 Mad 173 FB at 177] "
[Emphasis Supplied]
In view of the enunciation of law as stated hereinabove, the profits claimed by respondent No.2/plaintiff are not on account of profits received by the petitioner in wrongful possession of the suit property, but are appurtenant to the plaintiff's right in her share. Therefore, even after passing of the preliminary decree and even though there was no prayer for grant of mesne profits in the suit, it is open to the Court to give appropriate directions regarding all or any of these matters either suo motu or on the application of the parties. Order XX Rule 18 of the Code of Civil Procedure does not prohibit the Court from issuing such directions after the stage of a preliminary decree. It is open to the Court, in order to prevent multiplicity of litigation, to do complete justice and to effect an equal division of all the common assets and properties amongst the parties, to direct an inquiry into the profits received or realised by one or some of them during the pendency of the suit and to award the others their proper share of such profits under the final decree. Such inquiry can be ordered either as a part of the preliminary decree itself or subsequently as a step towards passing of the final decree and, in either case, the result of the inquiry has to be incorporated in the final decree.
The learned Senior Counsel appearing for the petitioner in M.P. No.1438/2026 may be right in contending that Order XX Rule 12 of CPC does not apply to a partition suit and that a partition suit is covered by Order XX Rule 18 of CPC. However, the same would not invalidate the orders impugned in the petitions, as mere mentioning of a wrong provision or non-mentioning of a provision does not invalidate an order if the Court and/or statutory authority had the requisite jurisdiction therefor. (See: P.K. Palanisamy v. N. Arumugham & Another, 2009 AIR (SCW) 5385) . The jurisdiction in the case at hand for holding an inquiry is vested in the learned trial Court in terms of Order XX Rule 18 of CPC, as has been held by the Full Bench of the Madras High Court in the case of Babburu Basavayya (supra), this Court in the case of Kashi Bai (supra) and Apex Court in the case of Gopalakrishna Pillai (supra). The Full Bench judgment of this Court in the case of Amar Singh (supra), relied upon by the learned senior counsel appearing for petitioner/defendant No.1 also does not advance his case any forward.
Accordingly, finding no jurisdictional error or perversity in the orders impugned warranting interference by this Court in exercise of supervisory jurisdiction, both the miscellaneous petitions fail and are hereby dismissed.
The interim order passed earlier stands vacated.