No direction given regarding future profits.

The plaintiff, here respondent, obtained a preliminary decree for partition of joint family properties and, later on, during the pendency of the partition suit, applied in I.A.No.83 of 1947 for an enquiry into the profits of the properties realised by the defendants subsequent to the institution of the suit and a final decree for his share of such profits. The defendants opposed the application on the grounds there was no prayer in the plaint for the recovery of such profits and that the preliminary decree passed in the suit did not direct an enquiry into the same. The Court below held that these objections though well founded in fact were untenable in law and by its order dated 9th July, 1948, posted the case for an enquiry into the merits. This Civil Revision Petition is filed against the order of the Court overruling the objections of the defendants.

In Ghulusam Bibi v. Ahamadsa Rowther1 Ayling and Krishnan, JJ. held that if a preliminary decree in a partition suit either “intentionally or inadvertently” omitted to direct an enquiry into future profits a subsequent application for directing such an enquiry was incompetent and the Court had no power to pass a final decree awarding such profits. This decision goes the whole length of the petitioner’s contention but its correctness has been questioned in later decisions of this Court and in the arguments before us.

It is necessary at the outset to distinguish between three different types of cases in which a question of profits or mesne profits might arise. (1) Suits for ejectment or recovery of possession of immoveable property from a person in possession without title, together with a claim for past or past and future mesne profits. (2) Suits for partition by one or more tenants-in-common against others with a claim for account of past or past and future profits. (3) Suits for partition by a member of a joint Hindu family with a claim for an account from the manager. In the first case, the possession of the defendants not being lawful, the plaintiff is entitled to recover “mesne profits” as defined in section 2, clause (12) of the Civil Procedure Code, such profits being really in the nature of damages. In the second case the possession and receipt of profits by the defendant not being wrongful the plaintiff’s remedy is to have an account of such profits making all just allowances in favour of the collecting tenant-in-common. In the third case, the plaintiff must take the joint family property as it exists at the date of the demand for partition and is not entitled to open up past accounts or claim relief on the ground of past inequality of enjoyment of the profit, except where the manager has been guilty of fraudulent conduct or misappropriation. The plaintiff would, however be in the position of a tenant-in-common from the date of severance in status and his rights would have to be worked out on that basis.

Order 20, rule 12, Civil Procedure Code deals with the first class of suits above referred to, while Order 20, rule 18 deals with the second and the third categories. In view, however, of the considerable reliance placed on Order 20, rule 12, Civil Procedure Code in Ghulusum Bibi v. Ahamadsa Rowther1, in dealing with the right of a plaintiff to profits accruing during the pendency of a partition suit, it is desirable to consider the scope of this provision. A claim for possession and a claim for past mesne profits have been held to be based on different causes of action, at any rate, in the decisions of this Court. Order 2, rule 4, Civil Procedure Code however permits their joinder in one suit. There is a material difference between a claim for past and a claim for future mesne profits. Order 7, rule 2, Civil Procedure Code and section 7, sub-section (1) of the Court-Fees Act require that the amount of past mesne profits claimed should be approximately stated in the plaint and ad valorem Court-fee should be paid on such amount. These provisions can have no appli