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2011 Supreme(Del) 243

V.K.JAIN
Sita Kashyap – Appellant
Versus
Harbans Kashyap – Respondent


Advocates appeared:
For Appellant/Petitioner/Plaintiff: S.K. Puri, Sr. Adv. and Praveen Kumar, Adv.
For Respondents/Defendant: H.L. Kapoor, Adv. for D-1 and Maldeep Sidhu, Adv. for D-2 and 3

Judgement Key Points

It is not strictly mandatory to seek mesne profits in a partition suit. The legal position allows for the possibility of claiming mesne profits even if they are not specifically included in the original suit or decree, provided the suit is still pending and the court's proceedings are ongoing. The court has the authority to direct an enquiry into profits and to grant a decree for the share of profits, even if such relief was not explicitly claimed or incorporated in the preliminary or final decree.

Furthermore, the court's duty includes making appropriate adjustments and divisions of profits earned or realizable from the properties during the pendency of the suit, to ensure equitable distribution among the parties. However, once a final decree becomes functus officio (i.e., the proceedings are concluded), the court generally cannot entertain claims for mesne profits unless a supplementary or additional decree is sought during the pendency of the suit.

In summary, while it is not mandatory to specifically seek mesne profits, the law provides mechanisms for the court to award or adjust for mesne profits during the ongoing proceedings of a suit for partition, as part of the court's duty to ensure just and equitable distribution of the properties and profits derived therefrom.


JUDGMENT

V.K. Jain, J.

1. The following reliefs have been claimed in this suit:

(a) (i) a decree of partition in respect of all that property comprised of land and building and bearing No. 5A, Guru Govind Singh Marg, (New Rohtak Road), Karol Bagh, New Delhi, as per plan enclosed with the plaint;

(ii) a preliminary decree for partition of the suit CS(OS) No. 1943/1998 Page 2 of 26 property No. 5A, Guru Govind Singh Marg, (New Rohtak Road), Karol Bagh, New Delhi 110 005 for dividing the said property by metes and bounds and if it is ascertained that this property is not capable of being divided by metes and bounds then to order sale of property No. 5A, Guru Govind Singh Marg, (New Rohtak Road), Karol Bagh, New Delhi 110 005 and to divide the proceeds in the ratio of 1/4 share for each of the two Plaintiffs and Defendant No. 1 and the remaining 1/4 to Defendants No. 2 and 3 together;

(b) a decree of declaration that the Plaintiffs have inherited the contractual tenancy rights in respect of all that commercial premises being Shop No. 2738, Municipal No. XVI, Ajmal Khan Road, to the exclusion of the Defendants;

(c) a decree of mandatory injunction requiring the Defendants to allow the Plainti















































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