SANJAY KISHAN KAUL, J.

( 1 ) THIS application has been filed by the defendant seeking framing of an additional issue as under: "to what amount the plaintiff is liable to pay to the defendant for use and occupation of the suit premises from the date of filing of the suit. "

( 2 ) THE plaintiff has filed a suit for partition in respect of property No. 180, jor Bagh, New Delhi. The stand which has been taken by the defendant is that the defendant is the sole owner of the property though it was purchased in the name of a partnership firm as the funds flowed from the defendant. Issues were framed on 17. 2. 2005.

( 3 ) LEARNED counsel for the applicant/defendant contends that the provisions of order 20 Rule 12 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) would apply to the present case if read together with Order 20 rule 18 of the said Code. Rule 12 refers to a decree of possession and mesne profits and is made applicable where a suit is filed for the recovery of possession of immovable property and for rent and mesne profits. It is in such a case that a Court may pass a decree for the rents which have accrued on the property during the period prior to the institution of the suit and directing an inquiry as to such rent or for future rent and mesne profits. Rule 18 deals with the decree in the suit for partition of property or separate possession of a share therein.

( 4 ) IN support of his plea learned counsel for the defendant referred to the judgement of the Apex Court in Gopalakrishna Pillai and Ors. Vs. Meenakshi Aval and Ors. AIR 1967 Supreme Court 155 where in para 7 it is observed as under:"7. 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 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 O. 20 r. 12 apply. But in a suit to which the provisions of O. 20 R. 12 apply, the Court has 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. "

( 5 ) IN my considered view the aforesaid judgement in fact makes is clear that the provisions of Order 20 Rule 12 apply only in a suit of the said category for possession and mesne profits. The present suit is only for partition.

( 6 ) IT is not disputed that the defendant has not filed any counter claim nor that the parties are in joint possession of the property in question. Learned counsel for the defendant contends that the plaintiff has sued for 50 per cent share in the property while it is the property of the defendant and the defendant is in possession of ground floor only. Thus to the extent the occupation of the plaintiff in the property is there or to the extent more than the share of the plaintiff the defendant is entitled to mesne profits for the same. This plea is advanced on the basis that the plaintiff had permissive user and on claiming partition the defendant terminated such permission. I am unable to accept the plea of the learned counsel for the defendant.

( 7 ) LEARNED counsel for the defendant also sought to refer to the judgement in K. Venkata Subbaiya Vs. K. Veeraiya and Anr. AIR 1955 Andhra 172 where the full bench judgement of the Madras High Court in Basavayya Vs. Guravayya AIR 1951 Mad 938 had been referred to. The full bench judgement observed that a tenant-in- common seeks a partition not only of his share of the properties forming the subject matter of the suit but also of his share of the profits accruing from those properties during the pendency of the suit or till he is put in possession of his share. In the present case two parties are in joint possession and suit is filed for partition simplicitor. Defendant has not file

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