1.This is a revision by the petitioner against the portion of the order dated 9-4-1980 passed by the II Additional Civil Judge, Belgaum, in Miscellaneous Application No. 7 of 1980, continuing the attachment over the remaining 1/10th share belonging to opponent No. 2.
2. One Prabhakarlal filed a suit in O.S. 159 of 1940 for general partition against opponents 1, 2, 10 and others. A preliminary decree was passed in that suit and a final decree was passed in the year 1962. The suit property bearing CTS No. 1755 situate in Kirloskar Road, Belgaum, was allotted to opponents 2 and 10 together. Thepossess in was taken by them on 29-11-1974. Thereafter, it appears that O.S. 34 of 1946 was filed by opponent-10 against opponent-2 in Dharwar Court for partition. In that suit CTS. No. 1755 was allotted to opponent - 2 only.
3. Opponent - 3 is the wife and opponents 4 to 9 are the children of opponent No. 2.
4. CTS. No. 1755 was taken by the present revision petitioner from opponent-2 in the year 1956 as a tenant.
5. It was alleged by opponents 3 to 9 and the present revision petitioner that opponent - 2 was unheard of for more than seven years. Treating him as dead, on account of the said circumstance, opponents 3 to 9 sold the property to the present revision petitioner on 6-8-1975.
6. Thereafter opponent-1, who was allotted some other properties in the partition suit, filed an application under Order 20 Rule 12 of the Code of Civil Procedure forascertainment of mesne profits and he got CTS. No. 1755 attached as belonging to opponents 2 and 10.
7. The Court below ordered attachment of CTS. No. 1755 and it came to be attached on 8-4-1976. Hence, the revision petitioner, who is a purchaser from opponents 3 to 9, filed an application under Order 21 Rule 58 for raising of the attachment.
8. Opponent-1 resisted the Petition.
9. The Trial Court, after considering the material placed on record, raised the attachment to the extent of 9/10th share belonging to opponents 3 to 9 and continued the attachment on 1/l0th share holding that it still continued to belong to opponent-2. The revision petitioner, being aggrieved by the later portion of the order, has come up with the present revision.
10. The Learned Counsel Sri Mandagi for the Respondents urged that in a suit for partition and possession, the proceedings did not come to an end at all until even the the question of mesne profits is determined. According to him, ascertainment of mesne profits is an integral part of the suit for partition and possession and the suit wouldcontinue till even the last question of mesne profits is decided and till the mesne profits, which are awarded, are recovered. This argument of the Learned Counsel Sri Mandagi is well supported by the decision in C.R.P. No. 1450 of 1981,disposed of by me on 2-7-1985, R. R. Sankapal - v. - B. R, Shankapal. But the question still remains whether one of the parties to the suit can still claim a charge over the property allotted to others for the recovery of mesne profits,, even though the suit can be said to be pending.
11. The narration of the above facts would go to show that the revision petitioner purchased the property from opponents 3 to 9 on 6-8-1975, on the basis that opponent 2, who wasunheard of for more then seven years, presumed to be dead. Admittedly the attachment of the property is one year after the sale in favour of the revision petitioner. It cannot be disputed that present opponents 3 to 9 have got a share along with opponent-2 in the property in question. The present revision petitioner, rightly or wrongly, believed that opponent-2, who was unheard of continuously for more than seven years, was presumed to be dead. Therefore, after making enquiries in the matter, he naturally thought that opponents 4 to 9 were the persons entitled to the property in question, purchased the same bona fide and for fullconsideration. Therefore, in my opinion, it cannot be said that the present revision petitioner, who had been inducted by opponent No 2 as tenant into the property in the year 1956, continued to be in possession of the property only as a tenant, that too especially after opponents 3 to 9 sold the entire property in his favour on 6-8-1975. Whether opponent 2 can claim partition of his share in the property now is altogether a different matter. Now the question is whether the revision petitioner, who is a purchaser, can still be considered to be in possession of the property only as a tenant of opponent No. 2. Therefore, in view of the said facts and in view of the prima facie proof that the revision petitioner appears to be abona fide purchaser of the property from opponents 3 to 9, it cannot be said that the continued to be in possession of the property only as a tenant.
12. In Ravella Venkata Subbaiah (died), and Others - v. - Pydipati Venkata Subbaiah (died), and others, : AIR1975AP217 it has been clearly stated :
' A coparcener who has obtained a preliminary decree for partition and a final decree against the manager or the members of the family who were found to be in possession and enjoyment of the properties allotted towards his share, for profits subsequent to the date of the plaint, can only proceed to recover such amount just like any other simple money decree-holder. It cannot be said that a right to claim share in the profits along with a share in the joint family properties would amount to creating a charge over the properties that would be finally allotted to the manager or other coparceners who are in possession subsequent to the date of suit and before delivery of possession of the properties allotted to the coparceners at the final division of the properties. No charge can be claimed by the plaintiff coparcener unless the ingredients of Section 100 of the T. P. Act are proved and the plaintiff cannot proceed against the properties purchased by third parties pending a partition action from the defendant-coparceners, for the recovery of the subsequent profits.'
Therefore, on account of the purchase of the suit property by the revision petitioner from opponents 3 to 9 and on account of the fact that the said purchase is bonafide and for consideration, it will have to be held that the revision; petitioner was in possession of the property in his own right and not for and on behalf of the original judgment-debtor-opponent-2. Merely because now opponent-2 has re-appeared on the surface of the earth, who was said to have beenunheard of for more than seven years, and merely because he appears to be claiming a share in the property, it cannot be said that the revision petitioner was in possession of the property for and on behalf of opponent-2. It is a matter between opponent-2 on one hand the revision petitioner on the other and with that aspect of the matter, we are not at all concerned in this case. This is a matter which can be well fought out by opponent-2 in his own right.
13. Once the Court comes to the conclusion that the revision petitioner is in possession of the property as a purchaser, the question of holding the property for and on behalf of the original judgment-debtor opponent-2 does not arise at this stage. Therefore, the lower Court ought to have raised the attachment totally. It has no doubt raised the attachment to the extent of 9/10th share. But it erred in refusing to raise the attachment in respect of the remaining 1/l0th share on the basis that it belongs to opponent-2.
14. Therefore, the order passed by the Court below raising the attachment in respect of 9/10th share stands good. The order passed by the Court below refusing to raise the attachment in respect of the remaining 1/10th share is set aside. The revision is allowed.
15. In order to make the matter clear, I would like to express that whatever has been said by me regarding the title is only for the purpose of ascertaining possession as required under Order 21 Rule 58 of the Code of Procedure. Any opinion expressed regarding the title need not be taken as final. That can be very well decided on merits in a suit even if filed under Order 21 Rule 63 of the Code of Civil Procedure. Whatever has been said in this proceedings, I am sure, will not affect the final disposal of the suit, if filed under Order 21 Rule 63 of the Code of Civil Procedure.