Venuthurumalli Gopala Krishna Rao, J
1. Appeal Suit No.2110 of 2002 is filed against the order and decretal order passed in I.A.No.116 of 1977 in O.S.No.89 of 1947 on the file of Senior Civil Judge’s Court, Nellore. The appellants herein are the plaintiffs in the suit in O.S.No.89 of 1947. The suit in O.S.No.89 of 1947 is filed for the relief of partition of item No.1 of plaint-A schedule property. Transfer Appeal Suit No.903 of 2008 is filed against the order and decretal order passed in I.A.No.569 of 1977 in O.S.No.157 of 1946 on the file of Senior Civil Judge’s Court, Nellore. The appellants herein are the plaintiffs in the said suit. The relief claimed in O.S.No.157 of 1946 is for partition of the suit schedule property.
2. Both these interlocutory applications in the aforesaid suits are clubbed and a common order is passed by the trial Court on 16-3-2001 against which, the appeals in A.S.No.2110 of 2002 and Transfer A.S.No.903 of 2008 are filed. Therefore, both these appeals are clubbed and a common judgment is being pronounced in both these appeals.
3. Both parties in the appeals are referred to as they are arrayed in the interlocutory applications.
4. The undisputed facts are that the petitioners are the plaintiffs in both the above suit proceedings. Both the suits O.S.No.89 of 1947 and O.S.No.157 of 1946 are filed by the petitioners/plaintiffs for partition of the suit schedule property, as stated supra. On contest, both the suits were preliminarily decreed by the trial Court and against the preliminary decree in O.S.No.157 of 1946, an appeal was filed vide A.S.No.220 of 1949 on the file of District Court, Nellore, by the 1st defendant and his sons and the said appeal was also dismissed by confirming the judgment and decree passed by the trial Court in O.S.No.157 of 1946. The respondents herein filed S.A.No.933 of 1952 on the file of this Court, which was dismissed and later, the respondents filed L.P.A.No.65 of 1956, which was also dismissed on 19-4-1957. The preliminary decree passed in O.S.No.157 of 1946 has become final.
5. The material on record reveals that one Paturu Kondaiah, who is one of the plaintiffs in O.S.No.157 of 1946, also filed O.S.No.89 of 1947 on the file of Senior Civil Judge’s Court, Nellore, for claiming the relief of partition of 1/8th share in respect of item No.1 of plaint-A schedule property and separate possession of the rest of plaint-A and B schedule properties and the said suit was also decreed in favour of the plaintiffs against which, the 5th defendant and his sons filed A.S.No.542 of 1952 and the appeal was dismissed on 12-5-1957. Therefore, the judgment and decree passed in O.S.No.89 of 1947 becomes final and ended with finality. Subsequently, the plaintiffs have filed final decree petitions in both these suits and an Advocate Commissioner was appointed and he filed an interim report against which, the plaintiffs filed A.S.No.462 of 1975 and A.S.No.464 of 1975 on the file of this Court. During the pendency of both the said appeals, both parties entered into compromise and filed a joint memo by agreeing that – (i) the plaintiffs shall be declared to be entitled to 19/48th share on the basis that the extent of suit land of Ac.25-62 cents as held by the trial Court and the plaintiffs are also entitled to Ac.1-00 of land; and (ii) from out of lands of Ac.22-96 cents found in actual possession of the contesting defendants and the properties be allotted to the plaintiffs according to their share as mentioned in Clause (i), as stated above.
6. The material on record further reveals that in pursuance of the said compromise in between both the parties, the dispute relating to the total extent of land available for partition was settled amongst the parties and it is also relevant to say that both the parties came to an understanding and reduced into writing under Ex.A-1 under which, the 5th defendant delivered an extent of Ac.11-81 cents of land to the petitioners herein on 03-8-1984. The same is not at all in dispute by the respondents. The material on record also further reveals that in enquiry proceedings before the Advocate Commissioner, on behalf of the petitioners, P.Ws.1 to 8 are examined and Exs.A-1 to A-16 are marked and on behalf of the respondents, R.Ws.1 to 3 are examined and Ex.B-1 was marked and after conducting a detailed enquiry, the learned Advocate Commissioner determined the mesne profits and came to the conclusion that the petitioners are entitled to the mesne profits till the date of delivery of possession. After filing of the report before the trial Court, on behalf of the respondents, an objection was raised by the Advocate for respondents with regard to the mesne profits arrived by the Advocate Commissioner. They pleaded that the mesne profits have to be confined up to three years from the date of decree last passed and not beyond the same. The trial Court accepted the said findings and applied Order XX, Rule 12 of C.P.C.
7. Heard Sri M. Lakshmi Narayana, learned counsel for the appellants/ petitioners and Sri S. Appadhara Reddy, learned counsel for the respondents/ respondents.
8. Now, the points for determination in the present appeals are:
(1) Whether the trial Court is justified in ordering mesne profits up to three years from the date of last decree ? and whether the orders and decretal orders of the trial Court need any interference ? and
(2) To what extent ?
9. Point No.1: Whether the trial Court is justified in ordering mesne profits up to three years from the date of last decree ? and whether the orders and decretal orders of the trial Court need any interference ?
The subject matter of both the appeals is very limited. The appellants are seriously agitating that they are entitled to mesne profits as determined by the learned Advocate Commissioner from fasli 1355 onwards till the date of delivery of possession i.e. on 03-8-1984. As stated supra, it is not in dispute that the property was delivered to the petitioners herein on 03-8-1984. It is also not in dispute that as per the terms of compromise decree, the petitioners herein are not entitled to mesne profits till the date of delivery of possession. The undisputed facts are that in pursuance of the compromise decree, which was reduced into writing under Ex.A-1, the property was delivered to the appellants herein on 03-8-1984. It is the specific case of the petitioners that they are entitled to mesne profits till the date of delivery of possession. Admittedly, the share of petitioners in the schedule property is in possession of the respondents till the date of delivery of possession to the appellants herein and the respondents are enjoying the produce in the said property.
10. The learned counsel for appellants would contend that the learned trial Judge committed a grave error in restricting mesne profits up to three years from the date of last decree. As seen from the material on record, it is not in dispute that both the suits are filed for the relief of partition of plaint schedule property. The trial Court by relying on Order XX, Rule 12(1)(c)(iii) of C.P.C., came to the conclusion that the appellants herein are entitled to mesne profits up to three years from the date of last decree. But, the said provision is applicable in a suit for possession of immovable properties and mesne profits and the said provision is not at all applicable in a final decree of partition of the properties.
11. No doubt, Order XX, Rule 18 of C.P.C deals with final decree in a suit for partition of the properties and separate possession of share therein. At the same time, the proviso under Order XX, Rule 18(2) of C.P.C cannot be ignored.
12. Order XX, Rule 18(2) of C.P.C defines that:
“18. Decree in suit for partition of property or separate possession of a share therein. - Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,-
(1) …………………………………..
(2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the right of the several parties interested in the property and giving such further directions as may be required.”
13. As seen from the material available on record, both the suits are filed for seeking the relief of partition of the properties and separate possession. The said decrees were ended with finality and an Advocate Commissioner was also appointed and he filed an interim report and against the said interim report, the petitioners herein filed A.S.No.462 of 1975 and A.S.No.464 of 1975 on the file of this Court and in the said appeals, both the parties entered into compromise by filing a joint memo. It is an undisputed fact that finally both these matters were ended with compromise and the same is reduced into writing under Ex.A-1. In pursuance of the compromise decree, an enquiry was conducted before the Advocate Commissioner and after conducting a detailed elaborate enquiry, the learned Advocate Commissioner came to the conclusion that the petitioners are entitled to mesne profits up to the date of delivery of possession i.e. on 03-8-1984, which is an undisputed fact.
14. As stated supra, both the suits are filed for seeking the relief of partition of the plaint schedule properties. The trial Court granted a preliminary decree of partition, though the appeals have been filed by the respondents, the said appeals are dismissed and both the preliminary decrees were ended with finality. The suits in the case on hand are not for recovery of possession or eviction of the properties. It is also well settled that in a suit for partition, title cannot be decided and determination of shares of the parties have to be decided in the partition suit. In the present case on hand, the respondents have become sharers in respect of 19/48th share as on the date of filing of the suit. The relief sought in both the suits for preliminary decree of partition, therefore, I am accepting the contention of learned counsel for appellants that Order XX, Rule 18(2) of C.P.C is applicable to the present case on hand.
15. The learned counsel for appellants placed reliance on Velicheti Audinarayana v. Union of India 2001 (5) ALD 604. In the aforesaid case, a Division Bench of the composite High Court of Andhra Pradesh held as follows:
“7. … … … Law is settled that, in terms of Order 20, Rule 12(1)(c)(iii) CPC mesne profits cannot be claimed by a decree holder beyond three years even if he was not able to get the possession of the property. This is on the face of it unreasonable. In the present case, admittedly the property is being enjoyed by somebody, the original judgment debtor claims that property is not in his possession and it is in the hands of a third party, that enquiry is also going on, but at the same time, because of the restriction imposed by Order 20, Rule 12(1)(c)(iii) the petitioners are losing mesne profits of the property with respect to which decree in their favour has become final. We do not understand what other reason could have been there in making two different classes one for those who are able to get decree within three years and the other for those who are not able to get decree within three years. This classification in itself is bad and cannot be sustained. In the terminology of the Supreme Court we believe that this is a overdo classification as the Supreme Court had held in Roop Chand v. Delhi Development Authority, (MANU/SC/0413/1988 : AIR 1989 SC 307), that "To overdo classification is to undo equality."
The Division Bench of the composite High Court of Andhra Pradesh further held that:
“9. … … … Rule 12(1)(c)(iii) of Order 20 of CPC is unconstitutional and ultra vires to Article 14 of the Constitution of India.”
16. The learned counsel for appellants placed reliance on Babburu Basavayya v. Babburu Guravayya AIR 1951 Mad 938. In that decision, it was held by a Full Bench of the High Court of Madras as follows:
“13. … … … A partition suit in which a preliminary decree has been passed is still a pending suit & the rights of the parties have to be adjusted as on the date of the final decree. Jadunath v. Parameswar, I.L.R. (1940) Cal. 255. In such a suit the Court has not only to divide the common properties but has also to adjust the equities arising between the parties oat of their relation to the common property the property to be divided. The preliminary decree determines the moieties of the respective parties & thereby furnishes the basis upon which the division of the property has to be made. There are other matters in addition to the moieties of the parties that have to be considered & decided before an equitable final partition can be effected. Among them are the realisation of common outstandings, the discharge of common liabilities, the distribution of the profits of the properties realised pending the suit, either in cash or by allotment of property of the requisite value, the grant of owelty, the provision of maintenance to parties entitled thereto, the allotment of lands on which improvements have been effected to the sharer who has improved them, the allotment of alienated lands to the share of the alienor & other similar matters. Even after the passing of the preliminary decree it is open to the Court to give appropriate directions regarding all or any of these matters either suo motu or on the application of the parties. Order 20, Rule 18, Civ. P. C. does not prohibit the Court from issuing such directions after the stage of a preliminary decree. It is open to the Court in order to prevent multiplicity of litigation & to do complete justice & effect an equal division of all the common assets & properties among the parties, to direct an enquiry into the profits received or realised by one or some of them during the pendency of the suit & to award the others their proper share of, such profits under its final decree. This enquiry can be ordered either as part of the preliminary decree itself or subsequently as a step towards the passing of the final decree, & in either case the result of the enquiry has to be incorporated in the final decree.”
In the case on hand, a preliminary decree of partition is passed by the trial Court, which was confirmed by the appellate Court and the same is ended with finality. It is well settled that a preliminary decree of partition only identifies the properties to be subject to partition, defines and declares the shares of the parties. That part of the prayer relating to actual division by metes and bounds and allotment is left for being completed under the final decree proceedings. Thus, the application for final decree as and when made, is considered to be an application in a pending suit for granting the relief of division by metes and bounds.
17. In the case of Kolluri Suseelamma v. Yerramilli Nageswara Rao MANU/AP/0889/1999, a learned single Judge of the composite High Court of Andhra Pradesh held as follows:
“6. … … … The legal proposition laid down was that in a suit for partition, the right to account of profits is implicit in the right to a share in the common properties and need not be separately asked for and both the rights have to be worked-out and provided for in the final decree for partition. It was further held that a direction for enquiry into profits of the common property received or realised by one of the parties during the pendency of the suit may be made even after the passing of the preliminary decree and there is nothing in Order 20 Rule 18 CPC interdicting such procedure. It was also held that the right to account of such profits is implicit in the right to a share in the common properties and need not be separately asked for and even after the passing of the preliminary decree, it is open to the Court to give appropriate directions either suo motu or on the application of the parties. … … …”
The learned single Judge of composite High Court of Andhra Pradesh further held that:
“7. In view of the above discussion, what emerges is that there is no distinction between a coparcener and a co-sharer insofar as the application of Order XX Rule 18 CPC is concerned, as the criteria is that person laving pre-existing right as a sharer in the common properties is liable to be proceeded against for claim of both past and future profits and the legal provision applicable is only Order XX Rule 18 CPC regardless of the fact as to whether the said common properties are the co-parcenary properties or joint family properties or the properties devolved by will or gift. Jointness of the properties is the criterion for application of Order XX Rule 18 CPC in which one person is in possession and enjoyment not only on his behalf, but on behalf of others, but did not distribute the profits to other sharers and is made liable to distribute after ascertainment of the said profits by applying Order XX Rule 18 CPC. The said profits are not the mesne profits within the meaning of Section 2(12) of CPC but in contradistinction, the profits, which are to be ascertained under Order XX Rule 12 CPC are the mesne profits coming within the definition of Section 2(12) of CPC., as the said profits are derived by a person in wrongful possession of a property belonging to another. Thus, the distinction is clearly made-out that while a person who is in wrongful possession is accountable for profits under Order XX Rule 12 CPC as compared to a person, who is in possession lawfully as a co-sharer, but did not account for the profits and is made accountable under Order XX Rule 18 CPC.”
18. The learned counsel for respondents placed reliance on Union of India v. Banwari Lal & Sons (P) Ltd.(2004) 5 SCC 304. Suit proceedings in the aforesaid case law relating to an acquisition of immovable properties by Delhi Administration Authority. Therefore, the facts and circumstances in the cited decision are different to the instant case.
19. The learned counsel for respondents also placed another reliance on Chittoori Subbanna v. Kudappa Subbanna AIR 1965 SC 1325. The subject matter in the aforesaid case law is that an appeal is presented on a certificate granted by the High Court of Andhra Pradesh arises out of execution proceedings in execution of a decree. In the aforesaid case law, the Apex Court held as follows:
“26. It is urged for the decree-holder respondent that the trial Court, when passing the final decree, could not have ignored what had been decreed under the preliminary decree as no appeal against the preliminary decree had been preferred and section 97, C.P.C., provided that where any party aggrieved by a preliminary decree passed after the commencement of the Code did not appeal from such decree, it would be precluded from disputing its correctness in any appeal which might be preferred from the final decree. The object of section 97 is that questions which had been urged by the parties and decided by the Court at the stage of the preliminary decree will not be open for re-agitation at the stage of the preparation of the final decree and would be taken as finally decided if no appeal had been preferred against the preliminary decree. The provisions of this section appear to be inapplicable to the present case.”
The facts in the aforesaid case are different to the instant case.
20. In the case on hand, both the parties arrived at a compromise and both the matters are ended with compromise before this Court in A.S.No.462 of 1975 and A.S.No.464 of 1975 on a joint memo filed by both the parties and basing on the said joint memo, a compromise decree is passed by this Court and the parties also reduced the terms of compromise into writing under Ex.A-1, therefore, the terms of compromise are binding on both the parties. The parties cannot deviate from the terms of compromise. In the case on hand, the Advocate Commissioner conducted a detailed enquiry and after conducting the detailed enquiry, the learned Advocate Commissioner gave a finding that the petitioners are entitled to mesne profits till the date of delivery of possession. Admittedly in the case on hand, as stated supra, during the course of enquiry before the Advocate Commissioner, so many witnesses were examined on behalf of the petitioners and Exs.A-1 toA-16 are marked and on behalf of the respondents also, R.Ws.1 to 3 are examined and Ex.B-1 is marked. The learned Advocate Commissioner came to the conclusion that the petitioners have placed irrevocable evidence about the yield since 1945 to 1984 and the same is corroborated by the other witnesses of the petitioners. Furthermore, Exs.A-10 and A-11 are certified copies of judgment and decree in O.S.No.157 of 1946. In para-16 of Ex.A-10, it was held that the enquiry into mesne profits from fasli 1355 till the date of delivery of possession has to be held regarding which, the plaintiffs are held entitled to. It is also relevant to say that the respondents herein have endorsed on the plaint agreeing to the enquiry into the mesne profits from fasli 1355 till the date of delivery of possession. Exs.A-12 and A-35 are compromise decrees in A.S.No.462 of 1975 and A.S.No.464 of 1975, respectively, on the file of this Court. The learned Advocate Commissioner further held in his report that in A.S.No.462 of 1975 i.e. Ex.A-12 modifies Clause No.(1) of decree of the trial Court with regard to the extent as sought. That out of an extent of Ac.25-62 cents, the plaintiffs are declared as entitled to 19/48th share and in addition to it, they are also entitled to Ac.1-00 of land and the entire share of the land has to be delivered out of Ac.22-96 cents of land found in actual possession of the contesting defendants. Ex.A-13 also reveals the same. On analyzing the price lists under Exs.A-14 and A-15 and after thorough analyzation of the entire material during the course of enquiry, the learned Advocate Commissioner came to the conclusion that the petitioners are entitled to mesne profits till the date of delivery of possession.
21. In the case of Muthangi Ayyanna v. Muthangi Jaggarao AIR 1977 SC 292, the Apex Court held that the contentions are based on well recognized proposition that final decree cannot amend or go behind the preliminary decree on a matter determined by the preliminary decree. Both the matters are ended with compromise. The respondents cannot deviate from the terms of compromise, which was agreed by way of filing a joint memo and the terms of compromise are also binding on both the parties. Therefore, the law is very clear that the questions which had been urged by the parties and decided by the Court at the stage of preliminary decree would not be opened to reagitation at the stage of preparation of final decree and would be taken as finally decided, if no appeal has been preferred against the preliminary decree. As stated supra, the preliminary decrees ended with finality and the same have been confirmed by this Court.
22. The law is well settled that in a suit for partition, the Court determines and declares the right of the parties while passing a preliminary decree, shares of the parties to the suit will be worked out in final decree proceedings. It is also made it clear that a final decree cannot amend or go behind the preliminary decree on a matter determined by the preliminary decree.
23. For the aforesaid reasons, the trial Court committed a grave error in granting mesne profits from fasli 1355 to 03-8-1984 instead of granting mesne profits as determined by the learned Advocate Commissioner. Therefore, the said finding arrived by the trial Court is modified as the petitioners are entitled to mesne profits till the date of delivery of possession i.e. till 03-8-1984. The rest of the orders and decrees passed by the trial Court against which, these appeals are filed are holds good.
24. Point No.3:- To what extent ?
In the result, both the appeals are allowed by modifying the orders and decretal orders passed by the trial Court as the appellants/petitioners are entitled to mesne profits from fasli 1355 to 03-8-1984 i.e. till the date of delivery of possession. Rest of the orders and decrees passed by the trial Court against which, these appeals are filed are holds good. Pending applications, if any, shall stand closed. Each party do bear their own costs in these appeals.
