1. This original side appeal has been filed by defendants 1 and 2 in C.S. No. 61 of 1975 which is a suit for partition on the file of this Court against the final decree passed by Shanmukham, J. on 30th November, 1979.
2. The suit for partition happened to be filed by the respondents-plaintiffs in the following circumstances. The suit property is an extent of 9 grounds and 33 sq. ft in Mount Road with a building thereon known as Motimahal. The property originally belonged to the Kumararaja of Venkatagiri. On 23rd June, 1972, plaintiffs I to 3, defendants 1 and 2 and one Auto and Hardware Store purchased the property from the Kumararaja of Venkatagiri under the sale deed dated 23rd June, 1972. The total sale consideration was Rs. 3,50,000, Towards the sale consideration, the first plaintiff paid Rs. 70,037, the second plaintiff paid Rs. 45,515, the third plaintiff paid Rs. 46,816, the first defendant paid Rs. 55,918, the second defendant paid Rs. 57,776 and the Auto and Hardware Stores paid Rs. 73,938. On 6th January, 1973 the Auto and Hardware Stores sold their right, title and interest in the suit property to the fourth plaintiff. Immediately, after their purchase plaintiffs 1 to 3, defendants 1 and 2 and the Auto and Hardware Stores entered into an agreement dated 17th June, 1972 marked as Exhibit P-3 with regard to the enjoyment of the property among themselves. We shall have occasion to deal with the details of this agreement later on. The parties were in possession of respective portions in terms of the said agreement till 1975 when the plaintiffs 1 to 3 and the fourth plaintiff, being the successor-in-interest of the Auto and Hardware Stores, filed the suit for division by metes and bounds and for separate possession of shares of each of the parties in the suit property. Each one of the plaintiffs claimed a share in proportion to the share contributed by him in the total sale consideration for the purchase of the property. On 14th June, 1976 a preliminary decree for partition was passed by N.S. Ramaswami, J. According to the preliminary decree the first plaintiff is entitled to 70,037/3, 50,000 shares, the second plaintiff 45,515/3,50, 000 shares, the third plaintiff 46,816/3, 50, 000 shares, the fourth plaintiff 73,938/3,50,000 shares the first defendant 55,918/3, 50,000 shares and the second defendant 57,776/3, 50,000 shares.
3. Subsequently, the plaintiffs filed application No. 2054 of 1976 for the appointment of a commissioner to divide the property by metes and bounds in terms of the preliminary decree and to determine the proper compensation payable by each of the parties in respect of the portions in their occupation in premises No. 187, Mount road, Madras 2, and No. 22, Narasingapuram Street, Madras 2, and for directions regarding costs. On 19th July, 1976 N.S. Ramaswami, J , appointed Mr. S. Arasappan, Advocate, as Commissioner for the purpose of dividing the suit property by metes and bounds and to determine the proper compensation payable by each of the parties in respect of the portions in their occupation in the suit property. The Commissioner took the assistance of a reputed Architect Engineer of Madras in dividing the property. Accordingly, the Commissioner filed a report on 18th April, 1977 along with a plan suggesting the mode of division of the property. Defendants 1 and 2 filed their objections to the Commissioner's report. On 30th November, 1979, Shanmukham, J., accepted the report of the Commissioner and passed a final decree for division in terms of the Commissioner's report and plan. As regards the compensation the learned Judge directed the parties to file a memo, of calculation on the basis of the rental fixed by him at the rate of Rs, 1,50 per sq. ft., for the ground floor and Rs. 1.25 for the first floor and Re. 1.00 for the second floor. Thereafter, the parties field memorandum of calculation. Accordingly, on 30th November, 1979 the learned Judge passed an order to the effect that the first plaintiff should pay the second plaintiff a sum of Rs, 10,569.46, that the first defendant should pay the second plaintiff a sum of Rs. 52,618.76; that the first defendant should pay the third plaintiff a sum of Rs. 68,115.77 and the second defendant should pay the third plaintiff a sum of Rs. 1,826.22 and also to the 4th plaintiff a sum of Rs, 1,16,287.63. It is against this final decree, the defendants 1 and 2 have filed this appeal.
4. Before we catalogue the contentions raised by Mr. Rangarajan, on behalf of defendants 1 and 2, the appellants, herein, it is necessary to set out the nature of the suit property and also the details of the agreement entered into among plaintiffs 1 to 3, defendants 1 and 2 and the Auto and Hardware Stores on 17th June, 1972. As already stated, the suit property is an extent of 9 grounds and 33 sq.ft. There is a building called Motimahal. The building faces Mount Road on the east. The property extends upto Narasingapuram Street on the west, which runs parallel to the Mount Road. There is a common passage way leading from the Mount Road to the rear portion as shown in the Commissioner's plan. The frontage for the suit property facing the Mount Road is 78.5 ft; This is inclusive of 10-9 ft. the width of the common passage facing the Mount Road. There are some tenants occupyiag portions of the suit property. The portions in the occupation of the tenants are also separately shown in the Commissioner's plan.
5. After the purchase of the property by plaintiffs 1 to 3,. defendants 1 and 2 and the Auto and Hardware Stores, as already stated, they entered into an agreement dated 17th June, 1972 under Exhibit P-3. That agreement specified the amount of consideration paid by each one of the parties under the sale deed and also the extent of frontage occupied by them. The agreement stated that the parties were in possession of different portions of the building and the same has been marked in a plan annexed to the agreement. The agreement took note of the fact that tenants were in occupation of portions on the ground, first and second floor The agreement provided that there should be an account maintained, called the common pool account, into which should be credited the rents from the tenants in the premises. Two persons P. Hashumal and K. S. Narayanan were authorised to make the collections, put the money into the bank, pay taxes and other public charges and look after the common interest of the purchasers. The agreement further stated that the parties shall enjoy the portions in their occupation free of rent excepting for the fact that the second defendant shall pay Rs. 25 per month to the common pool for the portion occupied by them. The first defendant should pay a sum of Rs. 50 per month for the shed occupied by him in the rear and Rs. 700 per month for the portion occupied by him in the first floor to the common pool. Similarly, the Auto and Hardware Stores shall pay Rs. 50 for the shed occupied by them in the back portion. The agreement further stated such of those parties who are in possession of more than the area to which they are entitled, would be bound to surrender the same only when the tenants in the occupation of the premises upto 125ft., measured from Mount Road towards the west were evicted from the portion in their occupation. The agreement further made it clear that the parties who were in possession of excess portion should not claim to be tenants and that their possession must be traced to only the provisions of the agreement. The agreement also provided that an application should be made for demolition and reconstruction of the building and all parties should co-operate with each other in bringing the proceedings to a successful completion. It was further stated that only when tenants upto 125 ft. from Mount Road were evicted would defendants 1 and 2 and Auto Hardware Stores, be bound to give up the excess portions in their possession to the respective owners. At this stage, it may be necessary to mention that the plaint referred to the agreement dated 17th June, 1972 The plaint stated that the agreement was intended to provide for enjoyment of the property subsequent to the sale deed till the actual partition was effected. The plaint also referred to the fact that originally the joint owners were interested in demolishing and rebuilding the property and it was therefore decided that the entire building should be demolished and that each party should be allotted a definite portion upto a length of 125 ft. from Mount Road and the balance should be kept in common. However, it is also stated that subsequently if became clear that an agreed method or procedure for the demolition of the building and allotment of portions to each of the joint owners, so that they could erect their own building in the respective portions allotted to them, could not be reached Further, it was made clear in the plaint itself that the first defendant was in occupation of almost the entire first floor and he was paying a compensation of Rs 750 per month. Similarly, the second defendant was in possession of an excess area in the ground floor and he was paying a compensation of Rs. 25 per month. In the written statement filed it was admitted that no plan was annexed to the agreement dated 16th June, 1972. It was further stated that the parties felt that it would be impossible to partition the property and therefore they would enjoy the property in terms of the agreement without partitioning the same. It was admitted that the first defendant was occupying certain portions in the first floor and the ground floor and that he was paying a rent of Rs. 750. As a matter of fact, the first defendant claimed in the written statement that he was entitled to the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act. The suit for partition was said to be not maintainable since there was no agreement that there should be a division by metes and bounds. The second defendant also filed a separate written statement. He also stated that the was paying a rent of Rs. 25. for the portion occupied by him in excess to which he is entitled and that he would be entitled to the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act. In other respects, he adopted the written statement of the first defendant.
6. On the basis of the above pleadings, the following issues were raised by the learned single Judge:
1. Is not the suit for partition maintainable?
2. Is not the suit property capable of partition by metes and bounds?
3 To what reliefs are the parties entitled?
7. At the time of hearing of the suit, the learned Counsel for the defendants submitted that they were not pressing Issue No. 1 regarding the maintainability of the suit. Further, there was no dispute regarding the shares to which plaintiffs 1 to 4 and defendants 1 and 2 were each entitled to. In the circumstances, N. S. Ramaswami, J. passed a preliminary decree to the effect that the plaintiffs and defendants 1 and 2 would be each entitled to the shares specified therein and they would be entitled to have the said shares partitioned by metes and bounds and obtain separate possession thereof. It is also necessary in this context to mention that the plaintiffs filed Application No. 662 of 1975 for the appointment of a receiver to take charge of the suit property, to collect rents and other sums due from other joint owners of the property, for taking steps to evict the tenants and paying taxes and public charges etc. In the affidavit filed in support of the application it was stated that the first defendant was in occupation of the entire first floor paying only Rs. 750 as compensation which was a very meagre amount compared to the area occupied by him and consequently the receiver should take steps to collect proper amount of compensation from him and the second defendant and also other owners who were in occupation of portions in excess of their share in the property. In the counter-affidavit filed by the first defendant it was stated that the suit itself was not maintainable, that physical partition was neither feasible nor possible, that there was no need for the appointment of a receiver since parties were paying rent for the excess portion in their occupation and in the circumstances the application for the appointment of receiver could not be allowed. It was specifically admitted in paragraph 8 of the counter-affidavit that the first defendant was paying Rs. 750 towards rent for the portion occupied by him and that it was reasonable. The second defendant adopted the counter-affidavit of the first defendant. An order was passed by N. S. Ramaswami, J., on 18th June, 1976 four days after the date of the preliminary decree. The learned Judge held that since a preliminary decree has already been passed on 14th June, 1976, the application for the appointment of a receiver should not be kept pending and that it would be open to the parties to move the Court for final decree proceedings. The learned Judge further held that the reasonable compensation claimed in the application would be worked out in the final decree proceedings.
8. We shall now refer to the contentions advanced before us by Mr. Rangarajan, the learned Counsel for the appellants, against the final decree passed by the learned Judge. Mr. Rangarajan contended that the learned Judge was wrong in accepting the report of the Commissioner directing partition and division of the properties in terms thereof. Mr. Rangarajan submitted that Exhibit P-3 agreement dated 17th June, 1972 was entered into for the primary purpose of determining the interest of each individual buyer in the property till partition was effected. He laid particular emphasis on clauses 8, 9, 10 and 20 of the agreement. The learned Counsel did not dispute the fact that defendants 1 and 2 were allowed to be in possession of an area in excess of the area to which they would be entitled to under the sale deed and that for the said portion occupied by them they were bound to pay Rs. 750 and Rs. 25 per month respectively. But the learned Counsel argued that it was specifically agreed under Exhibit P-3 that possession of defendants 1 and 2 and others who were in possession of excess area would not be disturbed till the tenants upto an extent of 125 ft., from the Mount Road were evicted from the property and each purchaser was put in possession of his respective portion. Particular emphasis was laid on clause 20 which stated that only when tenants upto 125 ft., from Mount Road were evicted and every one of the purchasers got their share as per the plan annexed to the agreement, only then would defendants 1 and 2 and the Auto and Hardware Stores, be bound to give up the portions belonging to the other purchasers which were in their occupation In the circumstances, according to Mr. Rangarajan, notwithstanding the preliminary decree, no final decree for partition and separate possession could have been granted. In this connection, the learned Counsel by a reference to the preliminary judgment of N.S. Ramaswami, J., argued that the learned Judge had left the question whether the property was physically feasible for division by metes and bounds could be considered only at the time of passing of the final decree and then the rights of parties could be worked out in accordance with law. According to Mr. Rangarajan, this observation of N.S. Ramaswami, J., in the preliminary judgment would clearly show that the learned Judge had left open the question whether there could be a division by metes and bounds in the light of the provisions of the agreement Exhibit P-3. The learned Counsel also cited a passage from Mitra's Co-ownership and Partition, 1972, Edition page 80. In the said passage the learned author has stated : 'that every co-owner has equal right to the possession of every bit of the joint property and none of them can exclude the others from the enjoyment thereof'. The learned author has also observed : 'that it would be open to the co-owners to arrive at an amicable arrangement among themselves whereby each of them possessed and enjoyed exclusively different portions of the common property and such an arrangement would be valid and binding on all of them'. The learned author also observed that without a common agreement, such an arrangement could not be altered. We are of the view that this contention of the learned Counsel cannot be sustained. Admittedly, all the parties including the predecessor-in-interest of the fourth plaintiff became co-owners under the purchase of the suit property under the sale deed executed by the Kumara Raja of Venkatagiri. It is true that under Exhibit P-3 agreement the parties arrived at an amicable arrangement for enjoyment of the property till partition is effected. That would not mean that a co-owner would be debarred for ever from filing a suit for partition. The enunciation of law by Mitra in the passage brought to our notice by Mr. Rangarajan only states that as long as persons remain as co-owners, other co-owners would be entitled to a right over every bit of the joint property, that it will be open to the co-owners to arrive at an amicable arrangement with regard to the mode of enjoyment of the property and such an arrangement would be binding on them so long as co-ownership lasts. In fact, Mitra has stated at page 81 thus:
In short, the arrangements as to exclusive enjoyment of different parcels of the common property by different co-owners, being only for the purpose of beneficial enjoyment, the same cannot be disturbed by any co-owner or by the Court at the instance of one co-owner during the subsistance of the co-ownership between the parties. As the co-ownership is destroyed on partition, the previous arrangement as to enjoyment as between co-owners cannot possibly subsist. So, the remedy of a co-owner who is dissatisfied with such arrangement is partition.
Thus, the learned author himself has stated that the remedy of a co-owner who is dissatisfied with an arrangement is to file a suit for partition In all cases of joint ownership, each party has a right in demand and enforce partition ; in other words, a right to be placed in a position to enjoy his own right separately and without interruption or interference by others. In fact, Section 44 of the Transfer of Property Act contemplates the right of a transferee from a co-owner to enforce partition. It is unnecessary to cite decisions on the point.
9. There is also another aspect to be referred to. The very contention of Mr. Rangarajan that the property cannot be divided by metes and bounds by reason of the provision of the agreement. Exhibit P-3 was raised in the written statement and also in the counter-affidavit filed by the defendants in the application for the appointment of a receiver. The suit was said to be not maintainable by reason of the provisions contained in Exhibit P-3, agreement. It is in the light of such a contention, that issue No, 1 regarding the maintainability of the suit was raised. As already stated, at the time of the hearing defendants 1 and 2 did not press issue No. 1 regarding the maintainability of the suit, if really, the property could not be partitioned and defendants 1 and 2 were entitled to remain in possession until all the tenants upto 125 ft, from Mount Road were evicted as provided for in the agreement, that should have been the real defence to the passing of a preliminary decree. Having raised such a contention in the written statement, for reasons best known to them, they gave up the issue. In the circumstances, it is no longer open to defendants 1 and 2 to fall back upon Exhibit P 3 agreement and state that notwithstanding the preliminary decree for partition no final decree by metes and bounds could be passed, that the parties are still bound by the terms of the agreement Exhibit P-3 and are entitled to remain in possession in accordance therewith and their possession cannot be disturbed until all the eventualities contemplated under the said agreement happened. As rightly argued by Mr. Govind Swaminathan by giving up issue No. 1 regarding the maintainability of the suit, defendants 1 and 2 gave a go-by to the agreement. Further, the passing of a preliminary decree has the effect of destroying the previous arrangement entered into between the parties under Exhibit P-3.
10. We are not in agreement with the interpretation sought to be put by Mr. Rangarajan on the preliminary judgment passed by N.S. Ratnaswami, J. The learned Judge has observed as follows:
The only other issue (Issue No. 3) is as to whether the property is capable of partition by metes and bounds. It is stated that the property being one building , it is incapable of division by metes and bounds into several shares, as claimed by the parties. But the question whether the property is physically divisible by metes and bound., according to the shares owned by the parties need not be gone into at this stage. That is matter to be considered at the stage of the final decree. If it is found at the stage of final decree that the property is incapable of physical division according to the shares., then the rights of parties could be worked out in accordance with law. at the present stage, there can be no dispute in passing a preliminary decree as prayed for.
The learned Judge cannot be understood to have meant that he was leaving open the question whether the terms of Exhibit P-3 agreement would bar a division of the property by metes and bounds. A contention seems to have been relied before the learned Judge that since the property was one composite building and there were as many as five sharers, a convenient physical division would not be possible. The learned Judge said that the question to be tried by reason of the physical nature of the property whether it could be divided by metes and bounds or not could be decided at the stage of the final decree and if the nature of the property was such that no division by metes and bounds could be made, division could be done in accordance with law.
11. The second contention of Mr. Rangarajan was that in any event no decree could have been passed against defendants 1 and 2 to pay compensation to the plaintiffs as has been done by the learned Judge. Mr, Rangarajan did not dispute the fact that defendants 1 and 2 were in possession of contain areas in excess of the portions to which they were entitled and for the said portion they were paying a compensation of Rs. 750 per month and Rs. 25 per month respectively, as stated in the agreement. As a matter of fact, Mr. Rangarajan could not have disputed this position because both in the written statement as well as in the counter-affidavit filed by defendants 1 and 2 in the application filed by the plaintiffs for the appointment of receiver, they have clearly stated that they were in possession of certain areas in excess of the areas due to them and they were paying a rent of Rs. 750 and Rs. 25 respectively. As a matter of fact, both the defendants have even claimed the benefit of the Tamil Nadu Buildings (Lease and Rent Control) Act. The Commissioner has in his report quantified the areas which are in the occupation of defendants 1 and 2, in excess of the area to which they are entitled under the joint purchase. No convincing material was placed before us to show that the calculation by the Commissioner regarding the excess area in the occupation of defendants 1 and 2 was wrong. In his judgment dated 30th November, 1979 the learned Judge has fixed the rate of rent for the ground floor at Rs. 1.50 per sq.ft., for the first floor at Rs. 1.25 per sq. ft. and for the second floor at Re. 1,00 per sq.ft Mr. Rangarajan has not been able to satisfy us that the rate of rent adopted by the learned Judge is either high or unreasonable. We are therefore of the view that no objection can be taken either to the rate of rent fixed by the learned Judge for the calculation of the compensation amount payable by the defendants or the excess area which is found to be in the occupation of defendants 1 and 2 by the Commissioner and which has been accepted by the learned Judge,
12. Another contention of Mr. Rangarajan was that the plaintiffs would not be entitled to any compensation from the date of the plaint since there is no provision for the payment of compensation in the preliminary decree. He argued that under & final decree, the Court has no jurisdiction to grant a relief that was not granted by the preliminary decree. Order 20, Rule 12, Civil Procedure Code, provides that where a snit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree for the possession of the property, for the rents or mesne profits which have accrued on the property during the period prior to the institution of the suit or directing an enquiry as to such rent or mesne profits. It also provides for an enquiry as to the rent or mesne profits from the institution of the suit until the delivery of possession to the decree-holder or the relinquishment of possession by the judgment-debtor with notice to the decree-holder through Court or the expiration of three years from the date of the decree and it empowers the Court to pass a final decree in accordance with the result of such an enquiry. Order 20, Rule 12 Civil Procedure Code, deals with a decree in a suit for partition of property or separate possession of a share therein. It empowers the Court to give- such further directions while passing a preliminary decree for partition declaring the rights of the several parties interested in the property giving such further directions as may be required. It is one of the principles of law that a Court cannot grant a relief which has not been asked for by the plaintiff and In respect of which a cause of action has not accrued to him on the date of the plaint. However, the provisions in Order 20, Rule 12 and Order 20, Rule 18, Civil Procedure Code, are exceptions, to such a general rule. In the circumstances, notwithstanding the fact the plaint does not contain a prayer for future mesne profits, the Courts will have jurisdiction to pass a decree for future mesne profits. Similarly, it is equally well settled that in a suit for partition where there is no prayer for mesne profits and a preliminary decree also does not provide for mesne profits, an application can however be filed after the preliminary decree and before the final decree is passed. The reason is that profits arising from the properties which are eventually to be allowed to the plaintiff form part and parcel of the corpus itself and are as much in the hotchpot as the lands themselves It may also be noted that a partition suit does not come to an end with the passing of the preliminary decree. On the other hand, it is still a pending suit. In Jadunath v. Parameswar , the Privy Council observed as follows:
That a partition suit in which a preliminary decree has been passed is still a pending suit and the rights of parties who are added after the preliminary decree have to be adjusted at the time of a final decree.
It is for this reason it has been held by Courts that more than one preliminary decree can be passed in a suit for partition. In Basavayya v. Guruvayya : AIR1951Mad938 , the scope of the power of Court under Order 20, Rule 18, Civil Procedure Code, arose for consideration. The plaintiff obtained a preliminary decree for partition of joint family properties and later on during the pendency of the partition suit applied in Interlocutory Application No. 82 of 1947 for an enquiry into the profits of the properties realised by the defendants subsequent to the institution of the suit and a final decree for his share of such profits. The defendants opposed the application on the grounds there was no prayer in the plaint for the recovery of such profits and that the preliminary decree passed in the suit did not direct an enquiry into the same. The objections of the defendants were overruled by the trial Court and hence the defendants filed a civil revision petition. In view of the decision in Ghulusam Bivi v. Ahamedsa Rowther ILR (1918) Mad. 296 : 9 L.W. 541, that if a preliminary decree in a partition suit either intentionally or inadvertently omitted to direct an enquiry into future profits, a subsequent application for directing such an enquiry was incompetent and the Court has no power to pass a final decree awarding such profits, the matter was posted before a Full Bench of this Court. Viswanatha Sastri, J., speaking for the Full Bench has observed as follows:
A partition suit in which a preliminary decree has been passed is still a pending suit and the rights of the parties have to be adjusted as on the date of the final decree. In such a suit the Court has not only to divide the common properties but has also to adjust to equities arising between the parties out of their relation to the common property, the property to be divided The preliminary decree determines the moieties of the respective parties and 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 and decided, before an equitable final partition can be effected. Among them are the reailsation 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 and 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, Civil Procedure Code, does not prohibit the Court from issuing such directions after the stage of a preliminary decree. It is open to the Court in order i to prevent multiplicity of litigation I and to do complete justice and effect an equal division of all the common assets I and properties among the parties, to I direct an enquiry, into the profits, received or realised by one or some of them during the pedency of the suit and to award the others sir 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, and in either case the result of the enquiry has to be incorporated in the final decree.
13. The scope of the ratio laid down by the Full Bench in the above case arose for consideration before Rajagopala Ayyangar, J., in Arunachala v. Maragathamma : AIR1955Mad527 . The learned Judge after referring to the observations found in the Full Bench decision in Basavayya v. Guruvayya : AIR1952Mad61 , has observed as follows:
I do not regard these observations as deciding that when there is no prayer in a plaint and the decree is passed directing an enquiry into mesne profits and the decree passed by the Court awarding possession simpliciter without any direction for the ascertainment of mesne profits has become final it will be open to the decree-holder to revive the suit by making an application under Order 20, Rule 12, Civil Procedure Code. So understood I do not regard the Full Bench as having overruled the Judgment of Chandrasekhara Aiyar, J., in Atchayya v. Appalaraju : AIR1947Mad109 , It might be that the learned Judge followed the decision in Ghulsam Bivi v. Ahamadsa Rowther ILR (1919) Mad. 296 : A.I.R. 1919 Mad. 998, which was overruled by the Full Bench as to the proper construction of Order 20, Rule 18, but that can be no reason why his decision, on the construction of Order 20, Rule 12 should be treated as inconsistent with the Full Bench decision. 1 am of opinion that the decision in Atchayya v Appalaraju : AIR1947Mad109 , is still good law and has also correctly understood the scope of the amendment introduced in Madras to the Civil Procedure Code.
Mr. Rangarajan relied heavily upon this judgment of Rajagopala Ayyangar, J., to contend that the Full Bench had not held that where neither in the plaint nor in the preliminary decree there is a prayer for future mesne profits, the Court would have jurisdiction to order an enquiry into future mesne profits. We are unable to sustain the said contention of Mr. Rangarajan. There is absolutely no ambiguity at all in the very lucid manner in which, if we may say so with respect, Viswanatha Sastri, J , has summarised the legal position after referring to the various decisions on the subject.
14. In Atchamma v. Kami Reddi (1957) 2 Ar. W. R. 474 : I.L.R.(1957) A P. 52 I A.I.R. 1958 A. P. 517, a similar question arose for consideration. An application under Order 20, Rule 12, Civil Procedure Code, was filed in the Court after the passing of the decree for recovery of possession. One of the grounds on which the maintainability of the application was challenged was that there was no direction in the decree for the future mesne profits. Subba Rao, C. J., and Jaganmohan Reddy, J., (as they were then), held that where a decree awarding possession was silent with regard to an enquiry into future mesne profits and the decree had not completely disposed of the suit which, for one reason or another, continued to be pending, there was nothing in the Civil Procedure Code, prohibiting the decree-holder from applying to the Court during pendency of such suit for an enquiry into future mesne profits or the Court from ordering such an enquiry. The learned Judges followed the Full Bench decision of this Court in Basavayya v Guruvayyn : AIR1955Mad527 . With reference to the decision of Rajagopala Ayyangar J., in Arunachala y. Maragathammal : AIR1952Mad61 , which was cited before the Bench, Subba Rao, CJ., (as he then was), observed as follows:
I might however point out that the grounds on which the Full Bench decision was distinguished by the learned Judge are not wholly justiciable as from the statement of the facts, it appears that the application under Order 20, Rule 12, Civil Procedure Code, was filed during the the pendency of the second appeal in the High Court and the decree passed by the trial Court for ejectment has not become final. If so, the observation in Basavayya v. Guruvayya : AIR1955Mad527 , directly governed that case and the learned Judge ought to have followed it.
15. In Simma Krishnamma v. Latchumanaidu A.I.R. 1958 A. P. 520, again Subba Rao, CJ.. (as he then was), speaking for the Bench observed as follows:
There is nothing in the Civil Procedure Code, which can be constraded as a prohibition against the Court in proper case passing more than one preliminary decree and one final executable decree. In a proper case, therefore, where a supplemental final decree can be made, the Court is not precluded from ascertaining the profits and including the same in the supplemental decree. If a party to a partition suit files an application for the ascertainment of future profits and the Court, without disposing of that application, makes a final decree in respect of the other matters and without incorporating any relief for profits, the legal position is that the entire subject-matter of the suit has not been finally disposed of and, on that basis, it may be open to the Court to make another supplemental final decree in regard to profits.
16. Again another Bench of the Andhra Pradesh High Court speaking through Seshachalapati, J., in Satyanarayana v. Mallikarjuna : AIR1960AP45 , stated the ratio thus:
in a partition action even though there is no specific prayer for the ascertainment of profits subsequent to the institution of the suit and the preliminary decree did not contain any such direction, it is still competent for the Court to give the direction for the ascertainment of future mesne profits, provided final decree has not been passed. Therefore, an application for ascertainment of such profits is entitled to be considered on merits, and not to be rejected on the ground that ascertainment of profits since the same has not been asked for in the plaint. It is for the Court entertaining the application to determine whether the discretion should be exercised in giving a direction in the partition suit itself or refer the parties to a separate suit.
17. Jagadisan, J., had to consider the same question in Ponnuswami v. Santhappa : AIR1963Mad171 . The learned Judge reiterated the view of the Full Bench as followed by the Bench of the Andhra Pradesh High Court in the above two cases. The learned Judge observed thus:
I am clearly of opinion that in a partition suit, an application for ascertainment of future mesne profits can be filed so long as the suit is pending and so long as no final decree has been passed even though the plaint does not specifically pray for the granting of such relief and the preliminary decree does not provide for it. The mesne profits accruing from the properties forming the subject-matter of the division and referable to the properties which are eventually allotted to the share of the successful plaintiff, form part and parcel of the corpus it self and are as such in the hotchpot as the lands themselves. It would be most inequitable and unjust to compel the plaintiff to sue separately for future mesne profits and it is certainly not the policy of the law to encourage multiplicity of proceedings.
18. It may be mentioned in passing that in all these cases, a contention was raised that the ratio laid down by the Full Bench must be deemed to have been overruled by the decision of the Supreme Court in Mohammed Amin v. Vakil Ahmel : 1SCR1133 . In that case the High Court of Allahabad awarded to the plaintiffs mesne profits even though there was no such prayer in the plaint. The defendants took the matter in appeal to the Supreme Court. The Supreme Court has observed as follows:
It was however pointed out by Shri S.P. Sinha that the High Court erred in awarding to the plaintiffs mesne profits even though there was no demand for the same in the plaint. The learned Solicitor-General appearing for the plaintiffs conceded that there was no demand for mesne profits as such but urged that the claim for mesne profits would be included within the expression 'awarding possession and occupation of property aforesaid together with all the rights appertaining thereto. We are afraid that the claim for mesne profits cannot be included within this expression and the High Court was in error in awarding to the plaintiffs mesne profits though they had not been claimed in the plaint. The provision in regard to the mesne profits will therefore have to be deleted from the decree.
As was rightly pointed out by Jagadisan, J., in Ponnuswami v. Sanfhappa : AIR1963Mad171 , 'it is not clear from this passage whether the claim for mesne profits in the Supreme Court case was one for future profits accruing after the suit. The Full Bench decision of this Court has not been referred to by the Supreme Court.'. Consequently, none of the cases in which the question arose has held that the ratio in Basavayya v. Guruvayya : AIR1952Mad61 , stood overruled.
19. In the Kerala High Court the same question has arose in Mariramma v. Kunhamu Nair (1967) K. L. T. 1017, where Balakrishna Eradi, J.,(as he then was) expressed agreement with the dictum laid down by the Full Bench in Basavayya v. Guruvayya : AIR1952Mad61 and observed thus:
We are clearly of opinion that in a partition suit it is perfectly upon to the Court to adjudicate on the claim for future profits put forward by a sharer during the final decree stage even though there is no provision or direction contained in that behalf in the preliminary decree. The lower Court was therefore right in holding that despite the preliminary decree being silent on the question of future profits, it had the jurisdiction to inquire into the plaintiff's claim for future profits at the final decree stage and to pass a decree awarding future profits to the plaintiff.
20. The Orissa High Court in Basu Behera v. Dombara Behera I.L.R. (1954) Gua 228 : (1954) 20 C.L.T. 440 : A.I.R. 1954 gua 22 has followed the ratio of the Full Bench Basavayya v. Guruvayya : AIR1952Mad61 .
21. The Mysore High Court has taken the same view in view in T. Gowda v. S. Gowda : AIR1952Kant106 .
22. In Lakshmi Ammal v. Subbaraj : (1975)1MLJ137 , V. Ramaswami, J., has held following the Full Bench decision in Basavayya v, Guruvayya : AIR1952Mad61 , that even where the plaint as well as the preliminary decree are silent as to the mesne profits the Court can still direct enquiry into and award mesne profits from the date of suit and the claim for the plaintiff's share of profits accruing from the lands, pending suit is not properly speaking a claim for mesne profits and Order 20, Rule 18 does not prohibit the Court from issuing directions regarding an enquiry into mesne profits after the stage of preliminary decree. The learned Judge repelled the contention that the ratio of the Full Bench stood overruled by the decision of the Supreme Court in Mohammed Amin v. Vakil Ahmed : 1SCR1133 .
23. Mr. Rangarajan contended that this decision of V. Ramaswami, J., has not interpreted the decision of the Full Bench correctly inasmuch as the decision of Rajagopala Ayyangar, J , was not cited before the learned Judge. We have already referred to the ratio of the Full Bench itself and we have also observed with reference to the observation of Subba Rao, C. J., (as he then was) in Krishnamma v. Latchumanaidu A.I.R. 1958 A. P. 520, that the manner in which Rajagopala Ayyangar, J. sought to distinguish the Full Bench decision was not correct. We are therefore of the view that the decision in Lakshmi Ammal v. Subbaraj : AIR1975Mad208 , has interpreted the Full Bench decision correctly.
24. At this stage, we may also refer to the decision in Maddanappa v. Chandrammal : 3SCR283 , referred to by Mr. Rangarajan. There, the preliminary decree provided for determination of future mesne profits from the date of suit. Though in paragraph 2 of the judgment it was stated that the suit was for partition and separate possession of half share and for mesne profits, it is seen from the arguments stated in paragraph 5 of the judgment that the claim was for past mesne profits and there was no prayer for claiming future mesns profits. It was argued before the Supreme Court relying on the decision in Mohammed Amin v. Vakil Ahmad : 1SCR1133 , that the direction in the preliminary decree relating to the future mesne profits was without jurisdiction. The Supreme Court after noticing the decision of the Full Bench of this Court in Basavayya v. Guruvayya : AIR1952Mad61 , has observed thus:
We feel that when a suitable occasion arises it may become necessary to reconsider the decision of this Court as to future mesne profits.
As has been rightly pointed out by the Bench of the Kerala High Court in Mariyamma v. Kunhamby Naidu (1967) K.I.T. 1017, and Lakshmi Ammal v. Subbaraj : AIR1975Mad208 , the Supreme Court has not held that the ratio of the Full Bench in Basdvayya v. Guruvayya : AIR1952Mad61 . was wrong. Thus, the resultant position of law on the question is this. Even after the passing of the preliminary decree it is open to the Court to give appropriate directions regarding the distribution of the profits of the properties realised pending the suit either suo motu or on the application of the parties. We therefore reject the contention of Mr. Rangarajan that the learned Judge acted without jurisdiction in directing defendants 1 and 2 to pay compensation to the plaintiff's from the date of suit in respect of the excess area in their occupation. In fact, in this case, in the Application No. 662 of 1975 filed by the plaintiffs for the appointment of a receiver N.S. Ramaswami, J., had stated that it will be open to the plaintiffs to file an application and that the reasonable compensation claimed in the application would be worked put in the final decree proceedings. In the application for the passing of the final decree viz., Application No. 2054 of 1976 the plaintiffs had specifically prayed that the proper compensation payable by each of the parties in respect of the portions in their occupation should be determined. We are therefore of the view that the learned Judge was perfectly justified in ordering an enquiry into the compensation payable by each of the parties and passing a final decree for the same.
25. We can not subscribe to the argument of Mr. Rangarajan, that in any event, till defendants 1 and 2 are dispossessed they should be asked to pay only at the rate of Rs 750 and Rs. 25 respectively. With the passing of the preliminary decree for partition, the arrangements under Exhibit P-3 became destroyed. Therefore, from the date of plaint, the parties in the occupation of excess area would be bound to pay monthly compensation for the excess area in their occupation according to the market rate. We therefore reject the contention of Mr. Rangarajan that in any event the compensation for which defendants 1 and 2 are liable should be calculated only at the rate fixed in the agreement till the date of actual dispossession.
26. Mr. Rangarajan then contended that even after the institution of the suit defendants 1 and 2 have been paying into the common pool compensation at the rate of Rs. 750 and Rs. 25 per month. Therefore, defendants 1 and 2 would be entitled to be given credit to the amount they have been paying subsequent to the institution of the suit after deducting the amounts spent either for paying public dues or for the common expenses in the management of the property. We accept this contention and hold that defendants 1 and 2 are entitled to be given credit to the amount they have been paying after the institution of the suit minus their share of the expenses.
27. The only other question to be considered is whether the mode of division suggested by the Commissioner and accepted to the learned Judge need to be interfered with. The main burden of the song by Mr, Rangarajan against the final decree passed by the learned Judge was that no decree for possession could have been passed as long as Exhibit P-3 agreement subsisted and as long as the same has not been set aside. We have already rejected that contention The Commissioner has prepared a plan under which he has allotted various portions to different parties. We are satisfied that all the parties have been given proportionate frontage on the Mount Road side. Mr. Rangarajan has not been able to place before us with reference to facts and figures in what manner the allotment of different portions to different parties by the Commissioner and accepted by the learned Judge can be said to be inequitable or unfair. Apart from the oral arguments, the learned Counsel made some written submissions to the Court. There also the learned Counsel has not referred to any specific objections as regards the mode of division adopted by the Commissioner. The only objection that deserves consideration is the argument of the learned Counsel that the final decree in so far as it directs the rear portion of the property facing Narasingapuram street it could be sold and the proceeds divided among the sharers according to their respective shares as decreed in the preliminary decree, needs modification. According to the learned Counsel that portion of the property need not be sold. The property that is recommended to be Sold by the Commissioner and accepted by the learned single Judge is the rear portion facing Narasingapuram Street. The measurement of the area is roughly 60 ft. on the side of the Narasingapuram Street by 80 ft. With regard to this portion of the property, Mr. Rangarajan stated that defendants 1 and 2 would be satisfied if their proportionate share in this area is allotted together with such proportionate frontage as may be available. Mr. Goviad Swaminathan also has no objection for this. We take judicial note of the fact that there is large demand for accommodation for commercial purposes in the Mount Road area and that business people would be able to make suitable arrangements for putting a business premises to use even if the frontage is very small. Once this portion is directed to be sold it may not be possible for any one of the parties to acquire a similar commercial site in such an area for love or money. We therefore, set aside the direction given by the learned single Judge in the final decree that the area of land measuring 60 ft. x 85 ft. facing Narasingapuram Street should be sold and sale proceeds divided among the parties in proportion to their shares under the purchase and hold that defendants 1 and 2 together will be allotted contiguously their proportionate area from west to east beginning from the boundary of the property on the north and each of the plaintiffs will be allotted his proportionate share in the said area It is made clear that out of the 60 ft. frontage facing Narasingapuram Street, defendants 1 and 2 will be entitled to a frontage only in accordance with their proportion from North to South.
28. At this stage, we may mention that at the time of arguments both Mr. Rangarajan and Mr. Govind Swaminathan stated that the tenants were willing to vacate and surrender vacant possession. However, the learned Counsel were throwing blame on each other for preventing the tenants from doing so out of selfish motive. Ultimately Mr. Rangarajan stated that he had already filed an application to implead the tenants as additional parties, to the suit. Mr. Govind Swaminathan stated that he had no objection to the tenants being made parties. Accordingly we have allowed the application for impleading the tenants as additional respondents in the appeal. The tenants themselves appeared before Court. The tenants are one Babuji Press, represented by the proprietor John Aravamuthan, another is Glamour Saree Museum represented by the partner M. Krishenchand and the third tenant is one A.S. Anant. All the three tenants have filed affidavits stating that after the negotiations with the parties in the appeal, that have agreed to vacate the premises under their occupation accepting the compensation paid by the parties. They have agreed to surrender vacant possession on or before 31st October, 1983. The compensation was paid by the plaintiffs on the strict understanding that defendants 1 and 2 also would pay their share of compensation. Mr. Rangarajan made it clear that defendants 1 and 2 would pay the plaintiffs their share of compensation which had been paid by the plaintiffs to the three tenants. We record the undertaking given by the tenants. The affidavits filed by the tenants themselves state that they would be ready to abide by any directions that may be given by the Court in this regard. While recording the undertaking given by the tenants, we direct the tenants to hand over vacant possession of the property in their occupation on or before 31st October, 1983, as undertaken by them and if the tenants fail to surrender vacant possession, it will be open to the parties to execute the decree and recover possession of the same.
29. In the result, we confirm the final decree passed by the learned single Judge subject to the following modifications (1) Defendants 1 and 2 will be entitled to be given credit in the execution proceedings for the amount paid by them at the rate of Rs, 750 and Rs. 25 respectively per month from the date of plaint after deducting their share of expenses incurred by the common pool for payment of public charges etc., (2) Defendants 1 and 2 together will be allotted in execution contiguously 1,13,694/3,50,000 share in the property measuring 60 feet x 85 feet facing Narasirigapuram Street from the west to east beginning from the boundary of the property on the north and each of the plaintiffs will be allotted his proportionate share in the property including proportionate frontage; (3) The tenants, who have been made additional respondents, are directed to hand over vacant possession of the property in their occupation, on or before 31st October, 1983 as undertaken by them and if the tenants fail to surrender vacant possession it will be open to the parties to execute the decree and recover possession of the same.
30. Subject to the above modifications, the appeal will stand dismissed. There will be no order as to costs.
The further Order of the Court was made by
K.B.N. Singh, C.J.
After the judgment was delivered, Mr. R. D. Indrasenan learned Counsel for the appellants orally, prayed for a certificate under Article 133 (1) of the Constitution of India to appeal to the Supreme Court. As we have decided the appeal on the appreciation of the evidence on record and also on the principle laid down by a Full Bench of this Court in Basavayya v. Guruvayya : AIR1952Mad61 . we do not think that any substantial question of law of general importance arises in this case which, in our opinion, needs to be decided by the Supreme Court. The prayer for certificate is refused.