In a partition suit, the lis terminates at the time of passing of the final decree, and no relief for future mesne profits can be granted unless provided in the final decree.

Headnote:
PARTITION - MESNE PROFITS - CLAIM AFTER FINAL DECREE - MAINTAINABILITY - LIS TERMINATES AT FINAL DECREE - NO RELIEF FOR FUTURE MESNE PROFITS UNLESS PROVIDED IN FINAL DECREE.
Fact of the Case:

In a partition suit, a preliminary decree was passed in 1962 and a final decree in 1964. The respondents took possession of their share of the property in 1974 and 1976. In 1982, they filed an application for ascertainment of mesne profits from 1959 to 1976. The trial court granted a decree for mesne profits, which was upheld by the lower appellate court. The appellants, defendants in the partition suit, filed a second appeal.
Finding of the Court:

The Full Bench held that in a partition action, the lis gets terminated for all purposes at the time of passing of the final decree even with regard to the future mesne profits and as such it is not open to the parties to claim to the relief of mesne profits beyond the date of passing of the final decree, unless the final decree provides for such relief.
Issues: Whether a decree for mesne profits can be granted after the passing of the final decree in a partition suit.
Ratio Decidendi: The Court relied on the Full Bench judgment in Babburu Basavayya v. Babburu Guravayya, 1951 AIR(Madras) 938, which held that the Court has the power to grant mesne profits for a cause of action arising subsequent to the suit, but this power can be exercised only at the stage when a preliminary decree for possession is passed or at a later stage of the suit, but not after the passing of the final decree.
Final Decision: The second appeal was allowed, and the application for mesne profits was held to be not maintainable.

Judgment :-

S. JAGADEESAN, J. :- The defendants 1, 5 and 6 in O.S. No. 152/1960 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. 828/1962. 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 15-7-76 in I.A. 542/1969. The respondents took possession of their share in the above said items on 22-9-1976.

2. After taking delivery, the respondents filed an application I.A. 3183/82 for ascertainment of the mesne profits from 25-11-59 to 22-9-76. 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. 70/83 on the file of the Sub-Court, Villupuram. In and by his judgment dated 31-3-84 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."

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 be 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 has relied upon the judgment of this Court reported in Mohamed Habibullah v. Rahimath Beevi, (1980) 1 Mad LJ 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.

6. After referring to a number of judgments cited by both the counsel, the learned single Judge has entertained a doubt as a 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, 1952 ILR(Madras) 173 : 1951 AIR(Madras) 938 as well as the Supreme Court in the judgment reported in R. S. Maddanappa (Deceased) By L.Rs. v. Chan-dramma.

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 22-9-75. After nearly six years subsequent to the taking delivery of possession the respondents have filed the application in I.A. No. 3183/82 for ascertainment of mesne profits.

9. Hence the question is whether a decree for mesne profits can be granted?

Click Here to Read the rest of this document