In a partition suit, a claim for mesne profits can be made even though it is not specifically prayed for in the plaint and the preliminary decree does not provide for it, as long as the suit is pending and no final decree has been passed. However, an enquiry into mesne profits must be concluded before the final decree is passed, so that the result of the enquiry may be incorporated in the final decree.

ORDER:- The plaintiffs and the third defendant in O.S. No. 27 of 1957 on the file of the Subordinate Judge, Salem, are the petitioners. The plaintiffs filed the above suit for partition by metes and bounds into six equal shares of items 1 to 17 in Schedule III or alternatively to direct a division by metes and bounds of all the items 1 to 59 in Schedule II in the plaint plus items 10, 11 and 12 of Schedule III as the case may be into six equal shares and for allotment of one such share to each of the plaintiffs and defendants 1 to 3. The above unfortunate litigation had a chequered career and this litigation has come upto this Court more than four times. The above revision arises out of I.A.431 of 1965 dated 31-3-1965 in O.S.27 of 1957 for appointment of a Commissioner for dividing items 1 to 7 of Schedule 2 in the plaint into six equal shares by metes and bounds with reference to good and bad quality and allotment of one such share to the petitioner therein with the necessary appurtenant rights etc. and to ascertain the mesne profits for the one-sixth share in the said items from 29-3-1965 to 1-4-1965 and the first defendant deposited a sum of Rs.10,000 in pursuance of the compromise decree dated 1-4-1964 in App. No.2 of 1960 on the file of the High Court, Madras till the date of delivery of actual possession of the said one-sixth snare to the petitioner.

2. The case of the first defendant-petitioner is that as per the terms of the compromise decree in the High Court the respondents have taken possession of the land in item 1 of Schedule 11 which was in the petitioner's possession, that he had deposited Rs.10,000 in terms of the compromise decree that in accordance with the compromise decree he was entitled to a division by metes and bounds of 1/6th share in items 1 to 7 of schedule II of the plaint that the said 1/6th share has to he ascertained and fixed by the appointment of a Commissioner for that purpose, that till actual delivery is effected of the said 1/6th share the respondents will be liable to pay mesne profits and therefore an enquiry into the quantum has to be made.

3. The respondents filed a counter to the said application stating that they have no objection to a Commissioner being appointed to divide items 1 to 7 as per the compromise decree of the High Court after the sum of Rs.10,000 is paid to them, that the first defendant is not entitled to recover any mesne profits from the respondents, that most of the lands are lying fallow and some are unfit for cultivation and that in view of the cantankerous attitude of the first respondent the respondents have not raised any crops in Item 1 which is lying fallow, that the relief as to the enquiry about the quantum of mesne profits was untenable as the decree does not provide for it, that the petitioner is not entitled to costs and that the first defendant is in no way entitled to claim mense profits.

4. On 19-6-1967 the first defendant filed I.A. 374 of 1967 for determination of the mesne profits and I.A.642 of 1969 for the appointment of a Commissioner; the reliefs in all the petitions being a claim or mesne profits and for ascertainment of the same by the appointment of a Commissioner. The respondents filed a counter in the other application denying the claim as the decree did not provide for it and the remedy, if any, was only by way of a separate suit

5. The trial court heard I.A.74 of 1967 and 642 of 1969 together. The trial Court held that the first defendant (petitioner) will be entitled to mense profits till the date of delivery of actual possession of 1/6th share from the date of the deposit of the amount of Rs.10,000 into court i.e. 29-3-1965. The next question considered by the learned Judge was whether the claim for mesne profits would be sustained even though no claim was put forward in the suit or in the written statement of the sharer (first defendant). The learned Judge held that the suit being one for partition, future mesne profits can be clai