Back
2012 Supreme(Mad) 2157
High Court of Judicature at Madras
T. RAJA
A.K. Syed Ali & Another
Versus
A.K. Yarab Jan & Another
Second Appeal No.270 of 2007
Decided on : 04-06-2012
Advocate Appeared:
For the Appellants:Mrs. Hema Sampath, SC for R. Subramanian, Advocate.
For the Respondents:R. Tholgappian, Advocate.
Ratio
In a suit for partition, the person who is not in possession could not claim share of mesne profit from the person in possession, but he could ask rendition of accounts.
Headnote:(A)Code of Civil Procedure, 1908(5 of 1908)-O.XX R.12-Partition-Mesne profit-Rendition of accounts-Plaintiff had sought for partition of properties in which preliminary decree was passed-Thereafter, the defendants had filed an application for directing the plaintiff to pay their share of mesne profit in which the trial Court fixed an amount as share of the defendants and directed the plaintiff to pay to the defendants and in appeal by the plaintiff, that order was set aside against which the defendants preferred appeal-While the appellants/defendants contended that the plaintiff was enjoying the property and liable to pay their share in the benefits of the property, respondent/plaintiff contended when the properties were under the enjoyment of coowners, the question of paying mesne profit would not arise and the person in possession could only be directed to render accounts-Held, in a suit for partition, the parties in possession were being in lawful possession and the question of paying mesne profit would not arise and he could only be directed to render accounts-Order under appeal was confirmed and the second appeal was dismissed.
(B)Code of Civil Procedure, 1908(5 of 1908)-O.XX R.12-Partition-Mesne profit-Rendition of accounts-In a suit for partition, the person who is not in possession could not claim share of mesne profit from the person in possession, but he could ask rendition of accounts.
The present case falls in the second situation. Therefore, I am of the view that even if the plaintiff has not pleaded in the plaint that he has been excluded from the share of profits, he is entitled as a member of the Hindu joint family to apply for an enquiry in respect of the profits reaslised by the defendants at the stage of the preparation of final decree because every suit for partition is a suit for account on the date of the institution of the suit. Such an application is required to be filed after the ascertainment of share is the preliminary decree. The only difference between a suit for recovery of possession of the land along with mesne profits and a suit for partition is that in the former, the plaintiff has to pray for past mesne profits and, in the latter, the plaintiff is not required to pray for past profits. Order 20, Rule 12 applies to a case where the defendant is in wrongful possession of a suit property. In a suit for partition of the Joint family properties, nobody is in wrongful possession of the properties. Para 10
1. The present second appeal has been filed by the defendants as against the judgment and decree passed by the I Additional District Judge, Salem, in A.S.No.128 of 2004, dated 31.01.2006, reversing the judgment and decree passed by the Principal Subordinate Judge, Salem, in I.A.No.572 of 1996 in O.S.No.653 of 1992, dated 30.12.2002.
2. Brief facts leading to the filing of the second appeal are given as under:-
The plaintiffs/respondents herein filed a suit in O.S.No.653 of 1992 seeking to divide the suit properties into 104 shares with all equities and to allot 76 separate shares in favour of the plaintiffs 1 and 2, with a consequential relief of permanent injunction restraining the defendants from in any way interfering with the physical possession and enjoyment of the suit properties by the plaintiffs till the suit properties are partitioned and the parties are put to separate possession according to the law.
3. Opposing the said prayer, the defendants filed a written statement complaining that there was no cause of action, for the reason that the second plaintiff is running a fuel depot in Item 1 and the plaintiffs 1 to 3 are living in Item 2 of the suit properties, by paying the municipal taxes. Further, there was no demand for partition by the plaintiffs at any time, hence, the allegations made contra thereto in the plaint are all false. The defendants, at no point of time, threatened the plaintiffs 1 and 2 for residing in the suit properties and the second plaintiff is also running a fire wood depot. Now, all the plaintiffs, by joining together, wanted to dictate terms with the defendants in the matter of division of the suit properties. Further, when the plaintiffs are staying in the suit properties and in contra, the defendants are kept out of the portion of the suit properties, it was pleaded, the plaintiffs 1 to 3 must pay their shares of the probable income.
4. Under these circumstances, the trail Court, after full trial, partly decreed the suit granting the relief for partition of the suit property and the preliminary decree was passed for partition directing the defendants to take separate proceedings for rendition of accounts. Thereafter, the defendants filed I.A.No.572 of 1996, for appointment of commissioner to hold enquiry into the income from the suit properties and also to direct the respondents to render accounts and provide for payment of the defendants' 28/104 share of income. The said IA was allowed with a direction that the defendants are entitled to mesne profits from Item No.1 of the suit property, which is fixed at Rs.800/-per month and from Item No.2, it was fixed at Rs.950/-per month, till the date of delivery of possession of their shares in the suit properties allotted to the defendants. Aggrieved by the same, the plaintiffs filed A.S.No.128 of 2004, before the I Additional District Judge, Salem. The main contention was that the preliminary decree in this case being one for rendition of account, final decree for payment of mesne profits is passed against the preliminary decree. Further, it was argued that rendition of accounts, as directed by the preliminary decree means that the plaintiffs, who are in possession of the suit properties, have to render accounts, namely, the actual income and the expenditure for the maintenance of the suit properties, and then only the share of the parties in the balance amount have to be worked out. But, so far as mesne profit is concerned, it does not mean the actual money received by the plaintiffs, but the value which ought to have been enjoyed by them. Hence, rendition of accounts differ from ascertainment of mesne profits and as already pointed out, when the preliminary decree directs for rendition of accounts, the lower Court has passed a final decree for mesne profits, and hence the appeal has to be allowed for getting the rendition of accounts and thereafter, the parties have to work out the money according to their shares. Accepting the cont
