V. Ratnam, J.
1. The 1st defendant in the suit is the appellant in this second appeal which arises out of the final decree proceedings in a suit for partition instituted by the first respondent herein in O S. No. 2423 of 1961, on the file of the learned 5th Assistant Judge, City Civil Court, Madras.
2. The facts are not in dispute. The first respondent instituted the suit for partition and separate possession of her 3/4 share in the property mentioned in the schedule to the plaint or in the alternative for a moiety thereof and also for an account of the income collected by the appellant and for the appointment of Receiver and other incidental reliefs. By a preliminary decree dated 24th December, 1963, the first respondent herein was granted a decree for partition in respect of a half share of the suit property and Clause (2) of the preliminary decree provided that the first respondent shall also be at liberty to apply for the ascertainment of the income from the property and the allotment of her share therein. There was an appeal against this preliminary decree in A S. No. 201 of 1964 to this Court, which was disposed of on 9th September, 1970 with certain modifications. Pursuant to the preliminary decree granted in favour of the first respondent as modified by this Court, she filed I. A. No. 1877 of 1971 for the appointment of a Commissioner to divide the property by metes and bounds and. a}so for ascertainment and payment of her share of the income from the property in question. A Commissioner was appointed and he submitted a report with reference to the suggested mode of allotment of the property and also the quantum of income referable to the share of the 1st respondent. The trial Court, on a consideration of the report of the Commissioner, by its Judgment and decree dated 10th January, 1973, allotted the southern portion of the suit property to the 1st respondent and the northern portion to the appellant. It further directed that a sum of Rs. 4,160 be paid to the 1st respondent by the appellant towards her share of income. Aggrieved by this, the appellant preferred an appeal in A S. No. 243 of 1974, before the learned 4th Additional Judge, City Civil Court, Madras. The appellate Court also confirmed not only the mode of allotment, but also felt that the assessment and ascertainment of the share of the income of the first respondent at Rs. 4,160 was not only reasonable, but unexceptionable. In the result, the appeal was dismissed. It is against that the appellant has now come up before this Court in second appeal.
3. The only contention that is urged by the learned Counsel for the appellant in this second appeal is that the maximum period for which the first respondent could be awarded her share of income is three years from the date of the decree and in this case, the Courts below should not have, therefore, awarded mesne profits for a period in excess of that period and that the award of mesne profits thus given is not in conformity with the provisions of the Civil Procedure Code, viz., Order 20, Rule 12, It may immediately be stated that this contention was not raised in the Courts below in the form in which it is now presented before this Court. However, since it is a point of law, which does not call for any further investigation of facts, the learned Counsel for the appellant was allowed to raise the same.
4 In order to appreciate this contention, it becomes necessary to examine the terms of the preliminary decree and ascertain whether Order 20, Rule 12 of the Civil Procedure Code would apply to instant came at all. The relevant Clauses of the decree in O.S. No. 2423 of 1961 run thus:
1. That the property mentioned in the schedule be divided into two equal shares and the plaintiffs be allotted one such share;
2. that the plaintiff shall be at liberty to apply by way of a separate application for ascertaining the income from the property and allotment of her share therein.
On appeal in A.S No. 201 of 1964, this decree, in so far as it is relevant for this second appeal, was modified by this Court on 9th September, 1970, thus
1. That the appellant (1st defendant) do render accounts for the period commencing from 31st May, 1961 (viz, the date of plaint) in respect of the rental collections made by him and that the 1st appellant (1st defendant) shall get credit for Rs. 150 (Rupees one hundred and fifty only) paid on the 61e of the High Court.
At this stage, it is necessary to set out the provisions of Order 20, Rules 12 and 18, Code of Civil Procedure. Order 20, Rule 12 runs, thus:
Deeres for possession and mesne profits---
1. Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree:
(a) for the possession of the property;
(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent;
(ba) for the mesne profits or directing on enquiry as to such mesne profits;
(c) directing an inquiry as to rent or mesne profits from the institution of the suit until
(i) the delivery of possession to the decree-holder; or
(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree, whichever event first occurs.
2. where an inquiry is directed under Clause (b) or Clause (c) a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.
5. Order 20, Rule 18, Civil Procedure Code which specifically deals with the case of a suit for partition and separate possession of a. share in the property runs, thus;
Decree in suit for partition of property or separate possession of a share therein--Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then--
(i) If and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any Gazetted Subordinate of the Collector deputed by him in his behalf in accordance with such declaration and with the Provisions of Section 54:
2. If and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property giving much further directions as may be required.
The relative scope of Order 20, Rule 12 and Order 20, Rule 18, Civil Procedure Code, has been the subject-matter of an illuminating and exhaustive discussion by a Full Bench of this Court in the decision reported in Basavayya v. Guruvayya : AIR1951Mad938 , the Full Bench observed, thus:
It is necessary at the outset to distinguish between three types of cases in which a question of profits or mesne profits might arise. (1) Suits for ejectment or recovery of possession of immovable property from a person in possession without title, together with a claim for past or past and future mesne profits. (2) Suits for partition by one or more tenants-in-common against others with a claim for account of past or past and future profits. (3) Suits for partition by a member of a joint Hindu family with a claim for an account from the manager. In the first case, the possession of the defendants not being lawful, the plaintiff is entitled to recover 'mesne profits' as defined in Section 2, Clause (12) of the Civil Procedure Code, such profits being really in the nature of damages. In the second case, the possession and receipt of profits by the defendant not being wrongful the plaintiff's remedy is to have an account of such profits making a]l just allowance in favour of the collecting tenant-in-common. In the third case, the plaintiff must take the joint family property as it exists at date of the demand for partition and is not entitled to open up past accounts or claim relief on the ground of past inequality of enjoyment of the profit, except where the manager has been guilty of fraudulent conduct or misappropriation.
6. The Full Bench also held that Order 30, Rule 12, Civil Procedure Code, deals with the first class of suits above referred, while Order 20, Rule 18 would take in suits in the second and third categories. It was also further held that Order 20, Rule 12 relates to 'mesne profits' in the sense in which that expression is defined in Section 2(12) of the Civil Procedure Code and that the claim of the plaintiff suing for partition and his share of profits accruing from the lands pending the suit is not, properly speaking, a claim for mesne profits and Order 20, Rule 12 Civil Procedure Code, has no application to such a case. The learned Counsel for the appellant, however, would strongly rely upon a decision of the Supreme Court in Chittoori Subbamma v. Kadappa Subbanna and Ors. : 2SCR661 and urge that the first respondent cannot be granted a decree in respect of mesne profits in excess of three years from the date of the decree. The question, therefore, is whether the first respondent decree-holder could be denied her share of the income for a period in excess of three years. The scope and applicability of the judgment of the Supreme Court relied upon by the learned Counsel for the appellant was the subject-matter of the judgment of a Division Bench reported in Subba Reddiar v Hara : AIR1973Mad237 Bibi. In that case also, the same objection that is being raised in the present second appeal by the learned Counsel for the appellant was raised, relying upon the aforesaid judgment of the Supreme Court reported in Subbamma's case. : 2SCR661 The Division Bench examined the provisions of Order 20, Rule 12 and Order 20, Rule 18. Civil Procedure Code, and followed the ratio of the Full Bench of this Court reported in Basavayya v. Guruvayya : AIR1952Mad61 , and ultimately held that Order 20, Rule 12 of the Code of Civil Procedure will not -be applicable to a case like the present case, because when an account of the income from the property pertaining to the share of the plaintiff is ordered upto the date of the final decree what actually happens is the division of an integral portion of the hotchpot comprising of not only the property but also the income and accretions thereto upto the date of the final decree and to such a case, Order 20, Rule 12 will be inapplicable. In addition, the Division Bench also examined in detail the judgment of the Supreme Court and held that a careful perusal of the minority and the majority views shows that the entire discussion related only to the scope of Order 20, Rule 12, Civil Procedure Code, and in particular whether the preliminary decree would be binding upon the defendant at the stage of the final decree proceedings and whether the objection that the period for the award of mesne profits should not exceed three years could be allowed to be raised for the first time before the High Court. It was also pointed out by the Division Bench that in the judgment of the Supreme Court there is no reference whatever to Order 20, Rule 18, Civil Procedure Code, which deals with a case of suit for partition and mesne profits. It was also further pointed out that the Full Bench decision of this Court reported in Basavayya's case : AIR1952Mad61 was not even referred to and, therefore, it is rather difficult to countenance an argument that the Supreme Court by implication intended to over-rule the view taken by the Full Bench which has been followed in all other decisions of other High Courts. That being the position, the question of the applicability of the provisions of Order 20, Rule 12 to the instant case does not arise because in this case, though the application purports to be one under Order 20, Rule 12, Civil Procedure Code, it would fall within the second and third categories enumerated by the Full Bench and to which the provisions of Order 20, Rule 12, will not be applicable Order 20, Rule 18, Civil Procedure Code, would govern the present case and. therefore, the objection of the learned Counsel for the appellant that the mesne profits cannot be given for more than three years from the date of the decree does not hold good.
7. The mode of allotment and the quantum of mesne profits were not in any manner challenged by the learned Counsel for the appellant. Therefore, I am of the view that the fixation of the mesne profits at Rs. 4,160 for the period in question and the allotment of the property to the share of the first defendant as has been done in the final decree appealed against are unassailable and the second appeal should, therefore, be dismissed with costs.