A. S. SARELA, N. M. MIABHOY, J.

( 1 ) THESE two first appeals are directed against the decree dated 23rd March 1959 passed by the learned Civil Judge (Senior Division) Surendranagar in Civil Suit No. 2 of 1. 51 by which the learned Judge ordered partition of suit properties in terms of a Commissioners report and rejected the claim made by defendant for future mesne profits in regard to common properties. First Appeal No. 667 of 1960 is by defendant and First Appeal No. 716 of 1960 is by plaintiffs. It is common ground that plaintiffs and defendant were co-owners of suit properties that defendant had 1/2 share therein and that the other 1/2 share belonged to plaintiffs jointly. One Govindsingh was the original owner of the suit properties. He died leaving behind him surviving two sons Chhatrasingh and Amarsingh; the latter is defendant. Chhatrasingh died leaving behind him three sons Hathubha Dalpatsingh and Ganpatsingh; the latter two are plaintiffs Nos. 5 and 6. Plaintiffs Nos. 1 2 3 and 4 are the sons of Hathubha who died before the institution of the above suit. Plaintiffs were in actual and physical possession of the suit properties. They filet the aforesaid suit for partition on the allegation that defendant though called upon on many occasions to agree to divide the suit properties had either refused or neglected to do so. On 24th July 1951 the learned Judge passed a preliminary decree. Some of the terms thereof material for the purposes of the present appeals were as follows:-THE Giras land shown in the lists Exs. 6 to 10 with constructions being joint of both the parties plaintiffs 1/2 share is to be separated from the 1/2 share of defendant. After partition in equal shares the possession of 1/2 share to plaintiffs and possession of 1/2 share to defendants will be handed over. . . . The costs of this suit of plaintiffs upto this stage is on defendant. The expenses of the partition is to be borne by the parties according to their shares. A Commissioner or a Surveyor will be appointed if an application is presented together with partition expenses. Defendant then made an application which was numbered 133 of 1954 purporting to be an application for execution of the preliminary decree for partition and possession of the suit properties. On 22nd June 1955 defendant made an application for appointment of a Commissioner as directed in the preliminary decree. The Court passed an order below that application appointing a Commissioner. On 21st January 1958 the Commissioner submitted a report making his recommendations for partition of the suit properties. Some of the plaintiffs filed their objections against the recommendations made by the Commissioner. On 16th January 1959 defendant made an application praying that he should be awarded future mesne profits from the date of the suit till the date of delivery of possession of his share in the suit properties. On the contentions of the parties the learned Judge drew up four issues for decision. The learned Judge rejected the contentions of plaintiffs against the recommendations made by the Commissioner for allotment of properties. He also rejected the prayer of defendant for future mesne profits. Both the sides felt aggrieved by the decisions recorded by the learned Civil Judge. Defendant preferred an appeal to the High Court of Judicature of Bombay at Rajkot which was numbered as Appeal No. 62 of 1959. On the reorganization taking place that appeal was transferred to this Court and numbered as First Appeal No. 667 of 1960. Plaintiffs preferred an appeal to this Court and as already stated it bears First Appeal No. 716 of 1960. The appeal of defendant is directed against the order of the learned Judge rejecting defendants claim for future mesne profits. Plaintiffs contest that claim mainly on two grounds:- (1) that there is no prayer for award of future mesne profits in the written statement; and (2) that no direction is given in the preliminary decree for ascertainment of future

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