1. This a first appeal by the plaintiffs whose suit for partition has been decreed, but certain reliefs have been refused by the Court of first instance. The facts are that the plaintiffs brought a Suit No. 17 of 1923 against the present defendant Mangal Ram claiming possession of half of certain property to which the plaintiffs claimed to be entitled as revarsioners on the death of a widow, and the plaintiffs obtained a decree on 17th July 1923. The defendant made an appeal to this Court which was dismissed on 11th November 1926. The plaintiffs got actual possession on 21st May, 6th June and 9th June 1927. The first matter which forms a ground of appeal is that the lower Court was wrong in dismissing the claim of the plaintiffs for mesne profits. Before the lower Court and also in this Court it has been argued that the plaintiffs are not entitled to mesne profits on two grounds. One ground is that the plaintiffs' present suit for mesne profits is barred by Order 2, Rule 2, and that is the ground on which the lower Court has dismissed the suit for mesne profits. Reliance was placed by the respondent on Oohardhan Lalji Maharaj v. Bishambar Nath : AIR1927All716 in which it was held that a subsequent suit asking for mesne profits was barred by Order 2, Rule 2, but in that case in the first suit the plaintiff had not asked for mesue profits, and accordingly it was held that ha should have asked for mesne profits as a relief. Now the plaint in the former Suit No. 17 of 1923 is printed on p. 36 of the paper book and in it in relief (b) the plaintiff asked for mesne profits and for future profits against the defendant. The case therefore stands on a different footing from Gobardhan Lalji Maharaj v. Bishambar Nath : AIR1927All716 and in the present case it cannot be said that the plaintiffs are barred by Order 2, Rule 2, because in the former Suit No. 17 of 1923 the plaintiffs did include future mesne profits as one of the reliefs which they asked.
2. The other ground on which it is urged that the plaintiffs are barred from their claim for mesne profits in the present suit is that in the former suit mesne profits were not granted, and in that former Suit No. 17 of 1923 there was an issue 6:
Whether the plaintiffs are entitled to damages and if yes, to how much?
3. On this issue there was a very brief finding:
The plaintiffs being out of possession and the defendant's possession over the half-share of Chandra Sekhar being wrongful, the plaintiffs are entitled to damages for the half-share. But no amount of damages has been proved and therefore I find this issue against the plaintiffs.
4. In the order there was no relief granted in regard to mesne profits. Now what the Court might have done in Suit No. 17 of 1923 was to direct an inquiry into the amount of mesne profits under Order 20, Rule 12. But it did not do so. The question therefore is : Does the omission of the Court to direct such an inquiry act as res judicata against the plaintiffs in the present suit? This question is answered by authority as there is a Full Bench ruling of this Court reported in Ramdayal v. Madan Mohan Lal  21 All. 425 in which it was held in a similar case that there is no bar by res judicata against a plaintiff bringing a subsequent suit for mesne profits where the Court in the former suit has failed to adjudicate on that relief. Accordingly we consider that the plaintiffs are entitled to mesne profits so far as not barred by limitation. Limitation is the next ground of appeal. The plaintiffs claimed mesne profits from 17th July 1923, the date of the decree in Suit No. 17 of 1923 and the present suit was filed on 17th February 1928 the question is whether the plaintiffs can in any way avoid the rule in Article 109, Limitation Act, that the period for such a suit is three years from the time when the profits were received. No satisfactory reason has been shown to us as to why this period of three years does not apply. The mere fact that execution was stayed during the pendency of appeal in Suit No. 17 of 1923 to this Court does not furnish any ground under any section of the Limitation Act to extend the period of a suit for mesne profits. Accordingly we hold that the plaintiffs are entitled to mesne profits for a period of three years prior to the date of the present suit and to this extent we set aside the order of the lower Court.
5. The next ground of appeal was that the appellants had proved that certain shops on the plot in suit bad been constructed by money provided by the widow Mt. Mahalakshmi Bahu. Whatever the merits of this contention it should have been taken in Suit No. 17 of 1923, and as the plaintiffs did not ask for a relief in regard to these shops in that suit we consider that the are barred from raising this question under the provisions of Order 2, Rule 2. The claim in regard to the shops was that they were constructed by the defendants with money obtained from the widow after her death in 1910, and that the construction was in the year 1914. The Suit No. 17 of 1923 was brought long after the shops had been constructed, and accordingly the shops should have been the subject of a claim for relief in that suit. We therefore refuse this ground of appeal.
6. The fourth ground of appeal is that certain buildings were appurtenant to the land on which they stood, and that the lower Court should, have granted a share of the buildings to the plaintiffs without payment of any compensation. These buildings stand on No. 94/1 which is one of the numbers of a fixed rate tenancy holding, and the holding altogether is about 20 bighas. Actually this particular number is of small extent, being only under two bighas. What the; lower Court has directed is:
The plaintiffs shall get compensation for their-half share of the land occupied by the shops and foundations or they can take half the land with buildings thereon on payment of half the cost of buildings and this amount of compensation shall be determined at the time of the passing of a final decree.
7. We do not consider that the plaintiffs are entitled to receive a share of these buildings without compensation. For on& thing we do not consider that there are any materials for such a claim put forward in the present suit, and for another thing we think that such a claim should have been put forward in Suit No. 17 of 1923, For both these reasons we refuse this request.
8. The last ground of appeal deals with the question of interest on mesne profits In regard to interest the lower Court has stated under issue 8:
The question of interest shall be decided in the proceedings for final decree.
9. That being so, we do not consider that we should pass any order on this point.
10. The result is that we allow the appeal to this extent that the plaintiffs will receive mesne profits for three years previous to the present suit, and the plaintiffs will be allowed proportionate costs of appeal and also in the Court below on this relief, There were two cross-objections in this case. One cross-objection was filed on 9th January 1931 by Hargobind, who was impleaded on his own application as a transferee from the defendant Mangal Ram by order of the Court dated 5th January 1931. Now it is claimed on behalf of Hargobind that although the appeal was filed on 25th July 1928, still as a subsequent transferee he is entitled within some period of his coming on the record to file a cross-objection. We know of no authority for such a proposition and we do not consider that a transfer by a respondent pending the hearing of an appeal can in anyway extend the period of 30 days from the services of notice on the respondent which is allowed for the filing of a cross-objection. Accordingly we hold that the cross-objection of Hargobind is barred by time. It was urged that we might extend this period. But in the present case we see no reason to do so.
11. There is a cross-objection filed by Mangal Ram, and the learned Counsel for Mangal Ram has argued that cross-objection on the merits as regards grounds 2 and 3. Ground 2 was that the claim for partition in the lower Court as well as for the mesne profits was not cognizable by a civil Court in regard to any portion of a fixed rate tenancy which formed one of the items of property in suit. Now the lower Court has dealt with this fixed rate tenancy only so far as a certain portion of it has been built upon by shops. In regard to that portion the learned Counsel argued that it would still come under the Tenancy Act, and that Section 37, Act 3 of 1926 would bar a suit in the civil Court. But the Tenancy Act deals with land which is let or held for agricultural purposes, and Section 37 refers to holdings which are composed of land let or held for agricultural purposes. Accordingly we consider that the lower Court was correct in directing partition of this portion of the holding which is occupied by shops.
12. The last ground of cross-objection was that a portion of the fixed rate holding had been taken by the railway during the lifetime of the widow and a portion had been gifted away by her, and accordingly the lower Court should not have decreed partition to the plaintiffs of half the entire fixed rate holding. The lower Court held that these questions in regard to the railway having taken portion of the land and to the alleged gift should have been raised in Suit No. 17 of 1923. We consider that the lower Court was correct in that finding and also we may point out that there is no evidence in the I present case on which we could hold that I there should be any deduction from the I area given in the decree of Suit No. 17 I of 1923 for this fixed rate holding, -that I Is 20 bighas 19 biswas snd 15 dhurs. The pleading in the additional written B statement of the defendant was that part of plot 94/3 and plot 2 and eJplot 5 had been taken by the railway and had been given away. The plea'ding did not clearly state which plots had been taken and which plots had been given away, and moreover plot 94/3 is not one of the plots which appears in the decree of Suit No. 17 of 1923 on p. 37. In support of this contention of defence there was no evidence produced of khataunis which would show what was the actual area of this fixed rate holding at the present-time. All the evidence that was tendered was the mere oral statement of the defendant himself. We do not consider that a mere oral statement is of any value as evidence on a matter of this kind, and the mere fact that no evidence: was called on the other side on the point is not a reason why we should accept such evidence when the defence could' have produced very much better documentary evidence which should have been conclusive on the point. Accordingly we refuse this ground of the cross-objection. In the result we dismiss the. cross-objections with costs.