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 fromthe 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 co-sharers, 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 1935 Pat 80 and was also exhaustively dealt with in a Full Bench decision of the Madras High Court reported in Basavayya v. Guravayya, AIR 1951 Mad 938 which is the leading decision on the subject. That decision has been followed in Satyanarayana Murthi v. Bhavana, (S) AIR 1957 Andh Pra 766; Krishnamma v. Lachuma Naidu, AIR 1958 Andh Pra 520 and Ram Narain Prasad v. Ramji Prasad, AIR 1956 Pat 244.
As pointed out in AIR 1951 Mad .938 where there is severance in the status of a joint Hindu family and the co-parceners thereupon become merely tenants in common, in a suit for partition filed by one of them against the others the only right he hasis the right to claim accounts of past and future mesne profits until the date of actual partition by metes and bounds after making all just allowance in favour of the collecting tenant in common.
The tenant in common who is in possession cannot be said to be in wrongful possession though he may be liable to render accounts relating to his share. Such a claim for accounts is not strictly speaking a claim for mesne profits as defined in the Civil Procedure Code, The provisions of Order 20 Rule 12 Civil Procedure Code or of Order 2, Rule 4, Civil Procedure Code, have absolutely no application to such claim for accounts,
It is true that in a partition suit by a co-sharer the Court generally passes, first a preliminary decree and then a final decree, but this is based on the provisions of Sub-rule (2) of. Rule 18 of Order 20, Civil Procedure Code which allows the Court, after passing a preliminary decree, to give such further directions as may be required'.
7. Where there is a claim for mesne profits against a person in wrongful possession of property, it has been uniformly held by all courts that a separate suit for mesne profits may lie after the disposal of the main suit for recovery of possession from the trespasser. It has been held that though by virtue of Order 2 Rule 4 of the Civil Procedure Code and Order 20, Rule 12 a claim for mesne profits up to the date of actual delivery of possession of the original owner may be made prior to the preparation, of the final decree, nevertheless a separate suit for mesne profits would lie inasmuch as the claim for mesne profits based on a distinct cause of action and had nothing to do with the original suit for recovery of possession from a trespasser. T need only refer to Doraiswami Aiyar v. Subramania Aiyar, ILR 41 Mad 188 : (AIR 1918 Mad 484) (FB); Monmohun Sirkar v. Secy, of State, ILR 17 Cal 968 and Ponnam-mal v. Ramamirda Aiyar, ILR 38 Mad 829 : (AIR 1915 Mad 912) (FB).
8. But different considerations arise where it is a mere claim for accounts by a tenant-in-common against his co-sharers. The principles of Order 2, Rule 4 and of Order 20 Rule 12 Civil Procedure Code; cannot be applied by way of analogy. The true nature of a partition suit amongst co-sharers should not be overlooked. As pointed out in AIR 1951 Mad 938 at p. 941 :
'It may be necessary in a partition suit, not merely to divide the properties but also to realise out-standings, discharge common liabilities, sell properties not capable of easy division, direct different sharers to account for different periods of time in respect of profits of different properties, adjust equities between the parties, and give directions from time to time, to the Commissioners appointed to divide the properties, or take accounts'.
Again at p. 942 it was observed :
'The profits accruing from the common proper ties pending a suit for partition, like the properties themselves, are liable to be partitioned under the final decree even without a separate prayer in the plaint for an account of such profits and division thereof. The right to an account of such profits is implicit in the right to a share in the common properties, and both rights have to be worked out and provided for in the final decree for partition. A suitfor partition by a member of a Hindu joint family is substantially a suit for an account of the joint family properties on the date of the suit, as well as all the profits received by the manager since that date, so that the profits should also be divided and his proper share given to him'.
Hence, it is obvious that a claim for accounts in a partition suit is implicit in the original suit for partition by metes and bounds and it ought to be settled at the time of the preparation of the final decree. If one of the sharers is found to be in possession of more than his legitimate share of the joint property the claim for adjustment of accounts should be made and the equities between the parties adjusted in the final decree itself.
It will not be a separate cause of action so as to confer on a party the right to bring a separate suit subsequently. Nor can it be said to be a merely discretionary matter with a party to claim such accounts in the original partition suit, reserving to himself the right to bring a separate suit if such a discretion was not exercised earlier.
9. If the right of separate suit is conceded to a co-sharer under the circumstances mentioned above, there will not only be multiplicity of litigation, but it may also be difficult to do complete justice between the parties. Here the appellant plaintiff has claimed a certain amount as due to him from the respondents in respect of lands in their possession up to the date of the final decree. Admittedly, the appellant was also in possession of some of the lands of the joint family property by way of convenience.
He has not rendered any account of the profits derived by him from those lands. There may also be other equities to be adjusted between the parties which could be possibly be done in the present suit, which is limited to the taking of accounts from one of the co-sharers in respect of properties in his possession up to the date of the final decree. These are matters to be worked out at the final decree stage itself.
If a right of bringing a separate suit is recognised as in the present case, the defence also must be permitted to bring another suit calling upon the plaintiff to render accounts in respect of the portion of the joint family property that was in his possession; and both parties should also have no further right to bring a third suit for settlement of other outstand-ings between them. Thus the final decree in the previous suit will practically be reopened.
The analogy of a suit for recovery of possession of immovable property from a trespasser and a subsequent suit for recovery of mesne profits, will not apply. There, the two causes of action are distinct. But once it is recognised that a claim of this type does not relate to a distinct cause of action but is implicit in the original cause of action, on the basis of which the partition suit was brought, the principle of Order 2, Rule 2, Civil Procedure Code would directly apply and, as rightly pointed out by the learned single Judge, Explanation 4 to Section 11 of the Civil Procedure Code has also application.
10. It is true that in AIR 1951 Mad 938 (FB) the limited question for consideration was whether in the absence of a specific direction in the prelminary decree, it was open to the Court while passing a final decree, to direct accounts to be taken in respectof properties in possession of the co-sharers so that each party may be allowed its proper share of such profits in the final decree.
In that case, the further question as to whether in the absence of any such direction in the final decree a subsequent separate suit by one of the co-sharers for accounts from .the other co-sharers would lie, was not considered. Hence, though, the aforesaid Madras decision is no direct authority for the point in controversy here, nevertheless the observations of the learned Judges of the Madras High Court about the true scope of a partition suit (quoted above) are definitely against the view that a subsequent suit may lie.
The Bombay decisions reported in AIR 1935 Bom 306 and AIR 1938 Bom 231 (FB) on which Mr. Ray relied, do not appear to have noticed the essential distinction between a suit for mesne profits against a trespasser and a suit for accounting of profits by one co-sharer against other co-sharers, on the other. Moreover, in AIR 1938 Bom 231 (FB) the learned Chief Justice while referring to opposite view observed :
'If the matter were entirely res Integra there would be, in my opinion, a good deal to be said in favour of the plaintiff's contention but the matter is by no means res integra'.
With great respect, therefore, I would prefer the Patna view given in AIR 1935 Pat 80, where the distinction between the aforesaid two classes of suits was clearly brought out at p. 81.
11. There are also some observations in AIR 1958 Andh Pra 520 which are helpful in this connection. There, it was pointed that in a proper case a Court may pass more than one preliminary decree and more than one final decree, and that in such a supplemental final decree a Court may ascertain the profits and include the same. But where no such final decree is passed, an independent application to the Court for ascertainment of future profits up to the date of actual delivery of possession to the parties was held to be not maintainable.
This decision is therefore an authority for the view that all such claims for profits should be made in the final decree proceeding and if they are omitted therein a supplemental final decree may be asked for. But a separate application would not lie once the litigation has ended in the passing of a final decree. The same principle would apply as regards the right of suit for such profits.
12. In agreement with Mohapatra J., therefore, I hold that the suit under appeal is barred by Order 2, Rule 2 and Explanation 4 to Section 11 of the Civil Pro-cedure Code.
13. The appeal is dismissed with costs.
R.K. Das, J.
14. I agree.