Mesne profits beyond the date of final decree cannot be claimed.

S. Jagadeesan, J.

1. The defendants 1, 5 and 6 in O.S. No.152 of 1960 on the file of the District Munsif, Villupuram are the appellants herein. The respondents herein had filed the said suit, claiming partition of 2/3rd share. A preliminary decree was passed by the trial court on 31.3.1962. Subsequently a final decree was also passed on 15.4.1964 in I.A. No. 828 of 1962. The respondents took possession of the properties on 26.12.1974. So far as items 4 to 8, 15, 17, 25 and 26 of the plaint schedule properties are concerned, because of the pendency of the second appeal which was disposed of in the year 1967, the final decree was passed separately on 15.7.1976 in I.A. No. 542 of 1969. The respondents took possession of their share in the above said items 22.9.1976.

2. After taking delivery, the respondents filed an application I.A.3183 of 1982 for ascertainment of the mesne profits from 25.11.1959 to 22.9.1976. The trial court granted a decree for mesne profits subject to payment of court fees. Aggrieved by the same, the appellants filed an appeal A.S. No. 70 of 1983 on the file of the Sub-Court, Villupuram. In and by his judgment dated 31.3.1984 the learned Subordinate Judge confirmed the decision of the trial court. Hence the present second appeal has been filed.

3. The following substantial question of law was formulated at the time of admission of the second appeal:

"Whether the finding of the lower appellate court on the question of maintainability is correct in view of the decision of the Supreme Court reported in AIR 1960 SC 941?"

4. The case was heard by K. Sampath, J. during the final disposal... Before the learned single Judge, the counsel for the appellants contended that the trial court did not provide for the mesne profits and therefore the respondents would not entitled to claim mesne profits. Even otherwise, at the time when the final decree was passed, the application for mesne profits had not been made and in as much as there could not be more than one final decree. The claim of the respondents could have been negatived by the courts below. For this proposition, he had relied upon the judgment of this court reported in Mohamed Habibullah v. Rahimath Beevi, 1980 (I) MLJ 436.

5. The learned counsel for the respondents seems to have contended that the respondents had claimed only future mesne profits and as such subsequent to the final decree it is open to them to seek for such relief on the basis of the decision of the Supreme Court reported in R.S. Maddanappa (Deceased) By L.Rs. v. Chandramma and another, AIR 1965 SC 1812.

6. After referring to a number of judgments cited by both the counsel, the learned single Judge has entertained a doubt as to whether subsequent to the passing of the final decree, the mesne profits can be asked for and referred the following question for the Full Bench to answer:

"Whether in a partition action, the lis got terminated for all purposes even with regard to future profits, not provided for in the final decree in the absence of any indication therein that something more remained to be done."

7. Though the learned Judge referred to number of judgments of the learned single Judges of this Court, we are of the opinion that it is unnecessary to refer all the cases, in view of the fact that the question referred had already been discussed by a Full Bench of this court reported in Babburu Basavayya v. Babburu Guravayya, I.L.R. 1952 Mad. 173: AIR 1951 Mad. 938 as well as the Supreme Court in the judgment reported in R.S. Maddanappa (Deceased) By L.Rs v. Chandramma and another, AIR 1965 SC 1812.

8. In the present case, though the preliminary decree provided for enquiry into the mesne profits, no such enquiry was held and the final decree came to be passed. Pursuant to which the respondents also took possession of the properties on 22.9.1976. After nearly six years subsequent to the taking delivery of possession the respondents have filed the application I.A. No. 3183 of 1982 fo