A separate suit for mesne profits would not lie after the passing of a final decree in a partition suit amongst the co-sharers.

NARASIMHAM, C. J.

( 1 ) THIS is an appeal, by leave, from the judgment of Mohapatra J. in Second Appeal No. 258 of 1954.

( 2 ) THE appellant is the son of one Lakhan-whereas defendants 1 to 3 are the sons of one Nil-moni. Lakhan and Nihmoni are brothers. Lakhan. and his son Udekar (appellant) filed a partition suit (partition suit No. 16 of 1942) in the Court of the-Subordinate Judge of Sambalpur, for partition and separate possession of their eight annas interest in. the joint family property impleading in that suit Nilmoni and his sons (defendants 1 to 3 ). In that suit main defence taken was a previous-partition between the parties by metes and bounds, in respect of the same property. Though this contention was upheld by the two lower courts, on second appeal (S. A. No. 53 of 1944) the Patna High Court decreed the suit for partition holding that there was no previous partition and that the co-sharers were in separate possession of parcels of land by way of convenience. In pursuance of the aforesaid judgment of the Patna High Court, a final decree was drawn up on the 23rd February, 1949, delirery of possession was effected in May 1949, and the parties were given separate possession of their respective shares. In-the final decree, however, there was no direction as regards the adjustment of accounts, as between the parties in respect of profits derived by them from the lands in their exclusive possession till the date of the final decree. The decree (Ext, 2) was silent on the point presumably because neither party raised this question.

( 3 ) AFTER having thus obtained a final decree and a complete partition of the joint family property, the plaintiff filed the present suit under appeal (Money Suit No. 27 of 1951) in which he claimed what he called "mesne profits" from the defendants for the years 1940-48 in respect of the excess lands that were in their possession. The main objection taken by the contesting defendants was that a separate suit for mesne profits would not lie and that the plaintiff ought to have asked for adjustment of accounts at the time of preparation of the final decree in the previous suit. This objection was upheld by the trial Court (Subordinate Judge of Sambalpur), by the appellate Court (District Judge of Sambalpur) and also by the learned single Judge of this High Court (Mohapatra J.) in Udekar Sahu v. Chandrase-khar Sahu, Second Appeal No. 258 of 1954.

( 4 ) THE sole question for decision therefore is whether, after the passing of a final decree in a partition suit amongst the co-sharers, it is open to one of the contesting parties to bring a fresh suit for mesne profits against the other cosharers, in respect of the excess lands found in their possession, up to the date of the final decree. The judicial decisions on the subject are not uniform.

( 5 ) IN Nandkishore v. Parameshwar Prasad, AIR 1935 Pat 80 it was held that a separate suit for mesne profits would not He and that the accounting amongst co-sharers in respect of the excess properly in their possession, should have been claimed in the partition suit itself, and necessary adjustments made at the time of the preparation of the final decree. But in Rama v. Saidappa, AIR 1935 Bora 306 a contrary view was taken and it was held that a separate suit would lie. In the later Full Bench decision of the Bombay High Court reported in Gangadhar v. Sripad, AIR 1938 Bom 231 (FB) the same view was reieterated and it was held that Explanation 5 to Section 11, C. P. C. would not be attracted in litigations of this type.

( 6 ) IT is now well settled that the expression "mesne profits" as defined in Section 2 (12) of the Civil Procedure Code is restricted only to those profits which are derived by a person in wrongful possession of property belonging to another. It has absolutely no application to profits accountable by a person not in wrongful possession of the property such as by a co-sharer, before partition. This distinction was brought out in AIR 19