In a partition suit, the court has jurisdiction to adjudicate on the claim for future profits put forward by a sharer during the final decree stage even though there is no provision or direction contained in that behalf in the preliminary decree.

V. Balakrishna Eradi, J.

1. Defendants 4 to 6 in O.S. 207 of 1950 have preferred this Civil Miscellaneous Appeal. The aforesaid suit was instituted by one Kunhiraman Nambiyar and another for a partition of the plaint schedule properties and for recovery of the plaintiff's 1/3 share with future profits at the rate of Rs. 30/-per year. The suit had been originally dismissed by the trial court and though the said decree of the trial court was confirmed by the lower appellate court, the High court in S. A. No. 932 of 1956 set aside the decrees of the courts below and passed a preliminary decree for partition holding that Kunhiraman Nambiyar was entitled to a 1/3 share. This preliminary decree was, however, silent about the plaintiffs' claim for future profits and did not contain any provision relating thereto.

2. The respondents herein who are the legal representatives of Kunhiraman Nambiyar filed R.I.A. 878 of 1962 in the trial court for passing a final decree. The trial court by order dated 29.9.1964 passed a final decree implementing the valuation and allotment suggested in the Commissioner's report which was accepted by it. Although in their application for final decree the respondents herein had specifically made a prayer that they should be awarded their share of the properties with effect from the date of suit, the trial court did not advert to this matter at all in its final judgment and consequently, the final decree passed by it did not also contain any provision relating to the aforesaid claim. Defendants 4 to 6 filed A. S.134 of 1964 in the Sub Court, Kasaragod, challenging the aforesaid final decree on the ground that the valuation of the properties and the division effected by the trial court were incorrect and unfair. Respondents herein who were respondents before the Sub Court in the aforesaid appeal filed a memorandum of objections contending that the trial court should have awarded them their share of the profits from the date of the plaint. The lower appellate court allowed the appeal as well as the memorandum of objections and remanded the final decree application to the trial court for fresh disposal in the light of the directions given by it. The Subordinate Judge overruled the contention taken before him by defendants 4 to 6 that the respondents are precluded from putting forward their claim for profits in the final decree proceedings on account of the absence of a provision in that regard in the preliminary decree. He held that the plaintiffs-respondents are entitled to profits from the date of suit and directed the trial court to ascertain and fix the quantum thereof and incorporate it in the fresh final decree to be passed by it. Defendants 4 to 6 have come up to this court with this Civil Miscellaneous Appeal, challenging the aforesaid decision of the appellate court in so far as it has directed the award of profits to the plaintiffs.

3. The only point raised before us by the learned counsel for the appellant is that the lower appellate court had no jurisdiction to adjudicate on the claim for future profits put forward by the plaintiff in the final decree proceedings when the preliminary decree did not contain any provision entitling the plaintiffs to such future profits. It is contended that even though a claim for future profits had been put forward by the plaintiff in the plaint such claim must be deemed to have been impliedly negatived when a preliminary decree was passed in the suit by the High Court which did not contain any declaration of the plaintiffs' right to future profits. It is further urged that under O.20 R.12 CPC in suits for recovery of possession of immovable property and for mesne profits, whenever the claim for mesne profits from the date of institution of the suit is upheld by the court the preliminary decree should contain a specific provision recognising such right and directing an inquiry as to the quantum of such profits and it is only in such event that a final decree can