1. The plaintiff in O.S. No. 26 of 1976, Sub-Court, Devakottai, is the petitioner in this civil revision petition, which is directed against the order of the District Court, Ramanathapuram at Madurai in I.A. 148 of 1980 in A. S. No. 154 of 1977, declining to review the judgment dated 13-12-1979 in so far as the refusal of the relief of future mesne profits is concerned. The petitioner herein instituted O. S. 26 of 1975 against the respondent herein praying for partition and separate possession and future mesne profits in respect of a house bearing door No. 37 in T. S. No. 161 in Ward No. 18 of Karaikudi Municipal Town. Admittedly, this house was owned by Rajammal and on her death leaving behind her three sons, they became, entitled to the house in question and the petitioner purchased an undivided one-third share from the eldest of the sons. The other two sons purported to convey a half share each in the property in favour of the respondent herein ignoring the rights of the vendor of the petitioner. Stating that she is entitled by reason of the purchase to a one third share in the property and claiming that as co-owners the petitioner as well as the respondent were in joint possession of the properties, the petitioner prayed for the relief's aforesaid in the suit instituted by her. That suit was resisted by the respondent who set up a prior partition between two of the sons of the original owner to the exclusion of the vendor of the petitioner herein and it was therefore contended that the petitioner did not acquire any title to the property by reason of her purchase from the son of the original owner who was so excluded.
2. The learned Subordinate Judge, Devakottai, on a consideration of the oral as well as the documentary evidence, found that the vendor of the petitioner had title to one third share in the property and that the respondent was entitled to the remaining two third. It was also further found that a dispute was going on between the petitioner and the respondent regarding the possession of the property and that the respondent cannot claim to have totally excluded the petitioner from the joint possession of the property. In this view, the payment of court-fee under Sec. 37 (2) of the Court-fees Act was held to be correct. While granting a preliminary decree for partition in favour of the petitioner directing the division of the suit property into three equal shares and the allotment of one such share to her, the learned Subordinate Judge left open the question of mesne profits to be decided in a separate enquiry under O. 20, R. 12, C. P. C. An appeal against this judgment and decree in A. S. 154 of 1977 was preferred by the respondent to the District Court, Ramanathapuram at Madurai. In that appeal, no specific objection was raised by the respondent herein to the decree of the trial Court in so far as it proceeded to direct an enquiry into mesne profits under O. 20, R. 12, C. P. C. The learned District Judge held that the respondent had not established the partition of the properties of Rajammal in the manner set out by her and therefore, the petitioner's vendor, who was one of the sons of Rajammal, was also entitled to one-third share in the properties and as such, the decree granted by the trial Court in favour of the petitioner has to be accepted as correct; but in relation to the claim of the petitioner for mesne profits, the learned District Judge dealt with and disposed of the matter in para 11 of his judgment in the following manner:-
'But as already stated above, no question of payment of mesne profits arises since, ever according to the plaintiff himself, she is in joint possession of the property and the suit is one for partition. Therefore, the order of the lower Court that the determination of future mesne profits is left open to be decided in a separate enquiry under O.XX,R. 14, C. P. C. is not correct'
Again in para 13, the learned District judge observed thus:-
'In the result, the order of the lower Court that future mesne profits will be decided in a separate enquiry under- O. XX, R. 12, Civil P. C, is set aside. In other respect the appeal is dismissed with costs. '
Again this, the respondent here in preferred S. A. No. l438 of 1980 and even at the stage of admission, the second appeal was dismissed confirming the decree granted in favour of the petitioner herein. Thereafter the petitioner herein field I.A. 148 of 1980 in A. S. 154 of 1977, purporting to be under 0. 47, Rr. 1 and 3, C. P. C. praying for a review of the judgment in A. S. 154 of 1977 ,dated 13-12-1979,on the ground that the respondent had Admitted having rented out portions of the suit house to strangers and the collection of rents there from and as such, the claim for those profits from the date of suit will fall under O. 20, R. 18, C .P.C and owing to an erroneous assumption and error apparent on the face of the record the relief of mesne profits had been deleted and therefore, that should again be provided for by reviewing the judgment in A.S. No-154 of 1977. That application was resisted by the respondent herein on the ground that there was no mistake or any error and that as the petitioner was in joint possession, no question of awarding mesne profits would arise at all and no case for review has been made out. The learned District judge Ramanathapuram at Madurai, found that the petitioner had taken up the stand that she was in a joint possession of property and therefore ,it is not open to her to turn round and contend that she is entitled to mesne profits and that there are no grounds to review the judgment .In this view, the review application filed by petitioner was dismissed, the correctness of which is challenging in this civil revision petition.
3. The learned counsel for the petitioner would strenuously urge that the lower appellate Court had proceeded on an erroneous impression that the petitioner was in joint possession of the properties and therefore was not entitled to claim mesne profits. He would point out that the joint possession was that of a co-sharer for purposes of valuing the suit and for payment of court-fee and that in the absence of any finding to the effect that the petitioner was in physical possession of one-third share purchased by her, the petitioner cannot be deprived of her right to secure mesne profits under O. 20, R. 18,C.P.C. The learned counsel would further submit that to the extent to which the lower appellant Court was under a mistaken impression that the petitioner was in physical possession and proceed to deprive the relief of mesne profits, though under. O.20, R. 12, C.P.C., that would constitute an error apparent on the face of the record justifying the review of the judgment and decree and the restoration of the relief of mesne profits under, O. 20, R. 18, C.P.C.Per contra, the learned counsel for the respondent would, with equal,vigour, contend, that the petitioner, if at all she was aggrieved by the judgment and decree of the lower appellate Court in, A. S.154 of 1977, should have preferred a second appeal and not having done so, cannot be heard to complain, that the, deletion of the relief of mesne profit is not correct or that it should be reviewed. In addition, it was also contended that there was no error apparent on the face of the record on the facts, and circumstances of the case, which would justify the exercise of the review jurisdiction and therefore, the Court below was quite justified in declining to countenance the petition, filed, by the petitioner herein in that regard.
4. In the course of the suit, no doubt the Petitioner has stated that she is in joint possession as a co-owner with the respondent in respect of the undivided one-third share purchased by her from Muthupandian one of the sons of Rajammal, the original owner of the property. On the other hand, the respondent put forth the claim that she was in undisturbed possession, and enjoyment, of the suit property. On issue Nos., 5and 6 touching upon the question of joint, possession and the payment, of court-fee, the learned Subordinate Judge found, that ever since the date of the purchase of the property by the petitioner, a dispute has been going on between the petitioner and the respondent and that while the petitioner had asserted that she is in joint possession, the husband of the respondent bad claimed that his wife has been in exclusive possession and enjoyment and the respondent cannot c1aim to have totally excluded the petitioner. From joint possession and as such the payment of court-fee under Sec. 37(2) of the Court-fees. Act is correct. Dealing with the issue relating to the mesne profits, the trial Court held that the determination of the future mesne profits is left open to be decided in. a separate enquiry under 0. 20, R.12, C. P.C. It has earlier been seen how the decree is so far as it related to mesne profits alone had been deleted by the lower appellate Court while disposing of A.S.154 of 1977. In doing so, the lower appellate court had proceeded on the footing that the respondent is in physical joint possession of the property and therefore, no question of payment of mesne profits would arise. It was in this view only that the lower appellate Court justified the deletion of the decree for mesne profits. A perusal of the, judgment of the trial Court as well as the lower appellate Court does not disclose that the question of physical possession of the property by the petitioner - was ever put in issue or decided or even considered. In that state of - affairs, the lower appellant Court when it proceeded to delete the decree granting the relief of mesne profits in favour of the petitioner had proceeded on the assumption that the petitioner is in joint possession of the property by which it understood that such possession was also physical possession of the property and therefore, no question of payment of mesne profits would arise under 0. 20, R. 12, C.P. C. Apart from the circumstance that the lower appellate Court had proceeded on an erroneous assumption that the mesne profits payable under O.20, R. 12, C. P.C even in suit for partition which would be governed by O.20, R.18,C.P.C. the respondent had not whispered anything at all even in her grounds of appeal with reference to the relief of mesne profits granted in favour of the petitioner and had also not stated that the petitioner was in physical' possession of the property. Obviously the joint possession was only for purposes of the payment of court-fee Act under S. 37(2) of the Court-fees Act and not for purpose of considering the question of mesne profits, where the possession, which is relevant, would be : actual physical possession of the property and not constructive joint possession of be co-sharer .It is the latter that has been pleaded by the petitioner in the course of the suit, for purposes of payment of court-fee which has been misunderstood by the lower appellate Court as one relating to the physical possession of the property by the petitioner. It is thus obvious that the lower appellate Court was labouring under a misapprehension as well as a misconception with reference to the factum of physical possession of the property by the petitioner when it proceeded to delete the decree for mesne profits granted by the trial Court in her favour though under O. 20, R. 12, C. P. C., Undoubtedly, therefore, in the absence of any finding by. the Court below to the effect that the petitioner was in physical possession of the property or at least her share there of the petitioner could not have been deprived of the relief of mesne profit . In so far as the lower appellate Court proceeded to construe joint possession of the properly by the petitioner for purposes of payment of court-fee under S. 37 (2) of the Court-fees Act as physical possession, which would disentitle the petitioner from claiming the relief of mesne profits, it was obviously labouring under an error apparent on the face of the record. In addition, being a suit for partition, the provision that would be applicable is 0. 20, R. . 18, C. P. C. In Basavayya v. Guruvayya, : AIR1951Mad938 , a Full Bench of this Court had occasion to consider the relative scope of O. 20, R. 12 and. O. 20, R. .18, C. P. C. while doing so, the Full Bench , had pointed out that O. 20,R. 18, C. P. C. would take in cases of suits for petition by, one or more tenants in common against others with a claim for, account of past or future profits and also for suits partition by a member of a joint' Hindu family with a claim for account from the manager. The present case is one which would fall within the first category referred to above . It was also further pointed out that the claim of a plaintiff for partition and share of profits accrued from the lands or property pending the suit is not properly., speaking a claim, for mesne profits and 0. 20,. R. 12, C: P. C. has no application to such a case. Again in Subba Reddiar v. Hazara Bibi, : AIR1973Mad237 , it was held that when an account of the income from the property belonging to the share of the plaintiff is, order up to the date of final decree, what actually happens is the division of an integral portion of the hotchpot for division is not merely the property as such, but also the income and accretions thereto up to the date of the final decree and in such a case, O. XX, R. 12, C. P. C. will be inapplicable, it is thus obvious that what the, petitioner in effect claims is only the correction by review of an erroneous decree resulting from wrong assumption on the part of the lower appellate Court which had absolutely no basis whatever either on evidence or even on the basis of The findings recorded in the course of the proceedings. In other words, plainly the present case is one where the lower appellate Court proceeded to delete the decree for mesne profits on a totally erroneous assumption of a fact, which as stated earlier had absolutely no existence. Consequently, the decree deleting the mesne profits earlier granted as a result of an erroneous assumption on the part of the lower appellate Court is one vitiated by an error apparent on the face of the record so as to justify the exercise of the review jurisdiction under O. 47, Rr. 1 and 3, C. P. C. In this view, the order of the Court below declining to review the judgment is set aside and the petitioner will be entitled to a decree for mesne profits from the date of suit till the date of delivery of possession under O. 20, R. 18, C. P, C. which is directed to be relegated to a separate enquiry. The civil revision petition is therefore allowed with costs.
5. Revision allowed.