1. This is a petition to revise the order of the learned Subordinate Judge, Salem dated 4th October, 1977 made in I.A. No. 646 of 1976 in O.S. No. 114 of 1966 By the impugned order the learned Subordinate Judge appointed a Commissioner for ascertaining the mesne profits. The suit itself was one for partition and a preliminary decree was first passed and thereafter a final decree was passed dividing the properties as between the parties. It is thereafter the present application for appointment of a Commissioner for ascertaining the mesne profits was filed and the impugned order was passed thereon.
2. The learned Counsel for the petitioner challenges the impugned order on the ground that after a final decree in the partition suit there can be no separate decree in relation to the mesne profits. itself. This question had come up for consideration before this Court in B.N. Thiayagarajan v. B.N. Sundaravelu : AIR1972Mad216 judgment by Raghavan, J. and in A.R. Veerappa Goundar v. Sengoda Goundar judgment by N.S. Ramaswami, J. The judgment of N.S. Ramaswami, J., is a later one and he has considered the decision of Raghavan, J. Raghavan, J., after referring to certain earlier decisions stated as follows:
That being the correct position I will now sum up the effect of the several decisions referred to above:
(1) Where a preliminary decree awarding possession contains a direction for enquiry into the future profits, that part of the suit relating to the mesne profits continues to be pending and the decree-holder might move the Court to hold an enquiry and pass a final decree awarding such profits without the necessity of filing an application within the the prescribed period under Article 181 of the Limitation Act.
(2) Where a decree awarding possession is silent with regard to enquiry into the future mesne profits and the decree has not completely disposed of the suit which for one reason or another, continues to be pending, there is nothing in the Code prohibiting the decree-holder from applying to the Court during the pendency of such suit for an enquiry into the future mesne profits of the Court from ordering such an enquiry; and
(3) Where no relief for mesne profits is claimed in the plaint and the preliminary decree does not provide for such relief, the relief for mesne profits can be claimed even for the first time in application for passing a final decree. But in every case above enumerated the enquiry must be concluded before the final decree is passed, so that the result of the enquiry may be incorporated in the final decree. If, however, the final decree is passed before the enquiry into the mesne profits is completed without the result of the enquiry being incorporated in the final decree itself, there can be no second final decree incorporating the result.
From one point of view, the above statement may not be appropriate in its language to a suit for partition because in a suit for partition the question of claiming mesne profits in the plaint itself cannot possibly arise, since the defendant who is a co-owner cannot be said to be in wrongful possession as against the plaintiff. In a suit for partition the question of awarding possession of the properties to the parties will arise only when the properties are divided and the parties are directed to take possession of the particular items allotted to them. A preliminary decree in a partition suit merely determines the right of parties to a share in the properties and the particular shares to which they are entitled and the properties that are available for partition and it is the final decree which ultimately divides the properties and awards separate possession of the properties to each of the parties. From this point of view, the observation which Raghavan, J, made as the proposition of law are inappropriate to a suit for partition.
3. On the other hand, with regard to a suit for partition what is really the consequential relief will be a claim for accounting and not a claim for mesne profits. In a suit for partition the profits accruing from the different items of properties which are the subject-matter of the claim for partition will also be properties to be divided among the different sharers. So long as that item of the property is not divided, the suit cannot be said to have been finally disposed of. Any decree that is passed prior to that can only be an interim final decree or one of the several final decrees which came to be passed in the suit. That is exactly the view which NS Ratnaswami, J., took in A.R Veerappa Goundar v. Sengoda Goundar : (1975)1MLJ53 in which the decision of Raghavan, J., in B.N. Thiagarajan v. B.N. Sundatavclu : AIR1972Mad216 was noticed. In view of this position, following the judgment of N.S. Ramaswami, J, the civil revision petition has to be dismissed and it is accordingly dismissed No order as to costs.