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Case Number

Second Appeal No. 301 of 1959

Attorney(S)

U.N.Rath
P.K.Dhal
M.S.Rao
J.Rath
B.K.Pal

Judges

Hon'ble Mr. Justice Jaya Krishna Misra

Acts

suit.9. Order 22, Rule 10 of the CPC

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This is a second appeal by the plaintiff and defendant No. 2 against a preliminary decree in a suit for partition concerning two contiguous plots in Cuttack town (Nos. 72 and 73), measuring 23 acre and 104 acre respectively. The two plots originally belonged to three brothers (Harekrushna, Udayanath and Krushna). Over time various purchases occurred: defendant No.1 purchased Udayanath's 1/3 share in 1934 and other fractioned shares in 1935; defendant No.2 (a deity) was represented through its marfatdar who was for some time a minor and represented by his mother, the plaintiff; the plaintiff purchased Krushna's 1/3 share in 1938. Before sale, the original owners had not partitioned the property.

On the two plots there had been: a thatched house on plot No.73 (occupied and substantially remodelled by defendant No.1 after his purchases), and a Darchandanadar on plot No.72 who was later ejected. At the time of trial the plaintiff was in possession of 0.031 acre, defendant No.1 was in possession of 0.096 acre, and defendant No.2 had no physical possession.

The trial court disallowed the plaintiff's claim for mesne profits and passed a preliminary decree treating the two plots as a compact area with specified allotments: defendant No.1's 8 annas (one-half of a 1/4?) to the eastern-most portion, plaintiff's 1/3 to the western-most portion, and defendant No.2's 1/6 to the middle. The trial court valued the old house at Rs. 200 and provided rules for valuation/payment regarding new constructions and for apportionment where a structure appertained to two shares.

During trial there were rival purchasers and attempts at substitution of parties; the trial court refused substitution petitions and left controversies about title to be litigated separately, while apportioning the deity's share among the parties to avoid future inconvenience. The first appellate court modified the decree in several respects (including findings about the validity of a sale in favour of defendant No.1 and directions for money compensation in certain situations), and otherwise confirmed the trial court's decree. The present appeal challenges mainly the appellate court's treatment of defendant No.2's share, the entitlement of defendant No.1 to additional land or compensation, and other related directions.

Legal Issues Presented

Whether the appellate court rightly interfered with the trial court's discretionary refusal to permit substitution of rival purchasers and whether the appellate court could adjudicate the rival transfers of the deity's (defendant No.2's) share while the suit was pending (lis pendens / devolution of interest issues).
Whether defendant No.1 could be held entitled to defendant No.2's 1/6th share (or be allotted any actual land in lieu of it) given his possession and constructions beyond his purchased share.
Whether, and to what extent, plaintiff was entitled to mesne profits for defendant No.1's occupation of the old house and larger part of the suit land.
Whether the trial court's valuation of the old house (Rs. 200) and its directions about valuation/compensation for constructions should be disturbed.

Arguments of the Parties

Plaintiff's Arguments

The plaintiff claimed mesne profits from defendant No.1 for occupying the old house and a larger area than his share (mesne profits claimed from the date of institution of the suit, 17-3-1945).
The plaintiff contended that the deity (defendant No.2) did not exist and that the property said to belong to the deity was actually the plaintiff's property purchased benami in the name of her son (the marfatdar), i.e., the deity's property was benami and belonged to the plaintiff.
Implicit in the plaintiff's position is that defendant No.1 should not be allowed to appropriate additional land or receive compensation in place of actual allotment where the plaintiff has a claim.

Defendant No.1's Position / Conduct (as presented in the opinion)

Defendant No.1 had purchased certain shares (including 8 annas) and occupied and substantially remodelled the old house on plot No.73, raised new constructions and built a compound wall; he claimed rights arising from his purchases and occupation.
The appellate court took the prima facie view that a sale to defendant No.1 of defendant No.2's 1/6th share might be valid (the appellate court regarded the marfatdar's adoptive father as legal guardian and the sale prima facie valid), and accordingly treated defendant No.1 as entitled to a larger share on that basis.
Defendant No.1 sought, and the appellate court in effect allowed, monetary compensation to be substituted for actual allotment in respect of defendant No.2's share or parts of constructions, where partition might interfere with intrinsic value (as the appellate court relied on a Calcutta decision).

Defendant No.2 / Deity (as presented in the opinion)

Defendant No.2 (a deity) was represented through the marfatdar; the marfatdar was a minor for some period and later became major in 1952 and directly represented the deity. There were rival purchasers claiming title to the deity's share; the trial court refused substitution and left those controversies for separate suits.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chacko Pyli v. Varghese, AIR 1956 Trav-Co. 147 (FB)	Where a transfer inter vivos is pendente lite, impleading a transferee is discretionary; transferee has no right to insist on being impleaded in addition to or instead of the transferor.	The opinion relied on this authority to support the trial court's discretion in refusing to implead/substitute rival purchasers and held that the appellate court had no jurisdiction to disturb that discretion.
Ashanulla v. Kali Kinkur, ILR 10 Cal 675	Where property can be partitioned without destroying intrinsic value, partition should be made; if partition would destroy intrinsic value, money compensation should be given.	The appellate court relied on this case to justify awarding money compensation in lieu of physical allotment in some circumstances; the present court held that the Calcutta decision did not properly apply to the present facts and rejected the appellate court's application of that principle to deprive defendant No.2 of actual allotment.
Shiva Narain Mahton v. Chandra Sekhar, AIR 1933 Patna 616	The proposition (as cited): if a co-sharer does not take steps to recover possession, he should not be allowed a decree for mesne profits.	The appellate court relied on this authority (and another) in refusing mesne profits; the present court analyzed mesne profits principles and distinguished entitlement to ground rent from entitlement to profits of remodelled building.
Nathuram Agarwalla v. Abdul Latif, AIR 1935 Cal 478	Similar proposition cited with respect to entitlement to mesne profits where co-sharer did not take steps to recover possession.	The appellate court relied on this authority; the present court accepted that in partition suits wrongful possession is not always established and refined the remedy applicable to ground rent versus rents from new constructions.
Basavayya v. Guravayya, AIR 1951 Mad 938 (FB)	Discussion of when questions of profits/mesne profits arise: (1) ejectment suits; (2) partition suits by tenants-in-common seeking account of profits; (3) partition by joint Hindu family member seeking account from manager; references to Order 20 rules.	The opinion quoted this passage to explain that in partition suits where possession and receipt of profits by a co-tenant is not wrongful, the remedy is an account of profits with allowances; the court applied this to hold that plaintiff/defendant No.2 could not claim share in rents of defendant No.1's remodelled building but could claim ground rent for defendant No.1's excess land holding.
Ram Narain v. Ramji Prasad, AIR 1956 Pat 244	Agreement with the Madras decision regarding profits in partition suits; profits during pendency may be dealt with even after preliminary decree.	The opinion cited this authority in support of the approach that ground rent for excess area should be determined in proceedings for the final decree and that compensation could be ordered after the preliminary decree.
Order 22, Rule 10 CPC	Provides that where an interest devolves during the pendency of a suit, the suit may, by leave of the court, be continued by or against the person in whom such interest has come.	The provision was cited to frame the limits of the court's discretion in allowing substitution/impleading of persons whose interest devolved during pendency; used to support non-interference with the trial court's discretion.
Order 20, R.12 and O.20, R.18 CPC (as cited in Basavayya)	Procedural rules dealing with claims for mesne profits in suits for ejectment (O.20 R.12) and accounts of profits in partition suits (O.20 R.18).	The opinion cited these rules (via Basavayya) to explain the proper procedural vehicle for claims to profits and mesne profits and to justify treating the present complaint as one for an account/compensation rather than ordinary mesne profits.

Court's Reasoning and Analysis

The court proceeded through a series of analytic steps, applying procedural and partition principles stated in precedent and the Civil Procedure Code to the facts found by the lower courts:

Discretion over impleading/transferees and lis pendens: The court emphasized the trial court's discretionary power under Order 22, Rule 10 CPC (as explained in Chacko Pyli v. Varghese). Where transfers occurred pendente lite and rival purchasers sought substitution, the trial court had properly exercised its discretion in refusing substitution and leaving the competing title claims to be litigated separately. Under lis pendens, property in suit cannot be dealt with so as to affect rights under the suit except with court authority, and the appellate court had no jurisdiction to disturb that exercise of discretion.
Findings about the alleged sale to defendant No.1: The appellate court's prima facie finding that defendant No.1 purchased defendant No.2's 1/6th share was held to be unsustainable because the appellate court had not properly adjudicated the rival claims. The appellate court had only expressed a prima facie view and did not go into rival claims; therefore the appellate finding could not be maintained.
Application of the Calcutta decision (ILR 10 Cal 675): The appellate court had relied on that case to justify awarding money compensation instead of allotting actual land in some instances. The present court concluded that the circumstances of the Calcutta case (partition of original houses among partners) were materially different from the present facts where defendant No.1, "with his eyes open," extended his constructions beyond his purchased share. The court held there was no equity in favour of defendant No.1 to be allotted defendant No.2's share by reason of his own overreaching occupation and construction, and thus the appellate court's application of the Calcutta principle was inappropriate here.
On compensation for constructions: The trial court had directed that if new constructions by defendant No.1 fell to the plaintiff's or defendant No.2's share, those constructions would be valued and defendant No.1 could recover the price from the party to whose share the construction fell. The court reasoned this was unjust: it was not equitable to compel the plaintiff or defendant No.2 to pay for defendant No.1's unilateral constructions on joint property. Instead, if constructions of defendant No.1 fell within another party's allotment, defendant No.1 should be entitled to remove his constructions and to no further equity; conversely, to the extent defendant No.1's constructions could be allotted to his share without harming others' rights, they should be allotted to him.
Practical re-apportionment: The court proposed a practical realignment of plot No.73 so that defendant No.1's share would be the area covered by his existing western (compound) wall and the existing northern and eastern boundaries of plot No.73, with the southern boundary adjusted so his total area equaled 0.0635 acre out of the total 0.127 acre for that plot. This would leave the residual of plot No.73 with an outlet to the lane and permit plot No.72 and the rest of plot No.73 to be allotted to the plaintiff, while carving out a contiguous strip for defendant No.2 whose share remained disputed.
Valuation of the old house: Both courts had found the old house had been substantially remodelled by defendant No.1 and was not virtually in its original state. The valuation of the old house before remodelling had been fixed at Rs. 200 by the trial court, which both courts endorsed; no legal point arose to disturb that factual finding.
Mesne profits and ground rent: The trial court had refused mesne profits, viewing that in a partition suit with joint possession the question of mesne profits does not arise, and that plaintiff could not claim profits from constructions raised solely by defendant No.1. The appellate court relied on authorities to the effect that a co-sharer who does not seek to recover possession should not obtain mesne profits. The present court accepted that in partition suits receipt of profits by a collecting co-sharer is not wrongful and the remedy is an account (Order 20 R.18) rather than ordinary mesne profits, but it distinguished between rents from a newly remodelled building (for which the plaintiff/defendant No.2 had no claim) and ground rent for excess land possession. The court held defendant No.1, who possessed 0.096 acre although his legitimate share was 0.0635 acre, must compensate other parties by way of ground rent for the excess enjoyment; the amount is to be determined in the final decree proceedings.
Rejection of appellate modifications: Because the appellate court had improperly interfered with the trial court's discretion on substitution and had misapplied the Calcutta principle to deprive defendant No.2 of actual allotment and to require others to pay for defendant No.1's constructions, the appellate modifications were rejected and the trial court's preliminary decree was to be modified only in the manner indicated by the present court (re-alignment of plot No.73 and directions as to ground rent and removal/assignment of constructions).

Holding and Implications

Holding: The appeal is allowed with costs of this Court; the decrees passed by the courts below are modified to the extent indicated in the opinion. The appellate court's modifications (those that deprived defendant No.2 of actual allotment and those requiring other parties to pay for defendant No.1's unilateral constructions) are rejected. The order of the appellate Court regarding costs of courts below stands.

Direct consequences and practical implications for the parties

Defendant No.1 is not entitled, as a matter of equity, to be allotted defendant No.2's 1/6th share merely because he had extended constructions; the appellate court's finding that defendant No.1 purchased defendant No.2's share cannot be maintained without proper adjudication.
The trial court's preliminary decree stands subject to the adjustments ordered by the present court: specifically, defendant No.1's allotted area is to be aligned with his existing western compound wall and existing northern and eastern boundaries of plot No.73, with the southern boundary adjusted so that his share equals 0.0635 acre (out of 0.127 acre for plot No.73).
Where any of defendant No.1's constructions fall to another party's allotment, defendant No.1 is entitled only to remove his construction and materials; he is not entitled to further monetary equity from those parties. Conversely, constructions which can be allotted to defendant No.1 without affecting other parties' rights should be so allotted.
The plaintiff and defendant No.2 are not entitled to share in rents of defendant No.1's remodelled building; however, they are entitled to ground rent (compensation) for defendant No.1's excess land holding (0.096 acre in possession vs. legitimate share 0.0635 acre). The quantum and directions for payment are to be determined in the final decree proceedings.
No new broad precedent is established beyond application of existing principles (discretion under Order 22 R.10; lis pendens; partition principles and equitable treatment of unilateral constructions; approach to mesne profits/account of profits). The decision primarily resolves the dispute between these parties and alters the lower courts' modifications as specified.

Disposition: Appeal allowed.

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Mahadei Bewa And Another v. Keluni Dei .

1. This is a second appeal by the plaintiff and defendant No. 2 over a preliminary decree arising out of a suit for partition. The suit property comprises of two plots Nos. 72 and 73, measuring 23 acre and 104 acre respectively in Cuttack town — both contiguous the latter plot being to the east and south of the former. To the west of the two plots lies a lane and to the north of the two plots lies the main road. The two plots originally belonged to three brothers — Harekrushna, Udayanath and Krushna. Defendant No. 1 purchased the ⅓rd share of Udayanath in 1934, and purchased the 1/6th share of one of the two sons of Harekrushna in 1935. In 1938 the 1/6th share of the other son of Harekrushna was purchased by defdt. No. 2, a deity, represented through its marfatdar, then a minor who himself was represented by his mother, the plaintiff. In the same year and shortly after the said purchase, the plaintiff purchased the ⅓rd share of Krushna. Before Harekrushna's sons and brothers sold the suit property, they had a thatched house over plot No. 73. En plot No. 72 there was a Darchandanadar who was ultimately ejected after purchases by the parties. The original owners had made no partition of the suit property amongst themselves before they sold their respective shares. Defendant No. 1, after his purchase of 8 annas share in the suit property, which was earlier to the purchase made by the plaintiff and defendant No. 2, occupied the thatched house that stood in plot No. 73, the original ownes residing far away. He subsequently substantially remodelled the old house and raised some new constructions and also raised a compound wall adjoining the eastern boundary of plot No. 72. After the ejectment of the Darchandanadar from plot No. 72, the plaintiff raised a thatched shed in a portion of that plot. The plaintiff was in possession of 031 acre, whereas defendant No. 1 was in possession of 096 acre out of the two suit plots. Defendant No. 2 was not in physical possession of any part of the suit plots at any stage.

2. In the suit for partition, the plaintiff claimed mesne profits from defendant No. 1 being in possession of the old house and of a larger area than what was due to his share. The trial court disallowed the plaintiff's claim for mesne profits and passed a preliminary decree for partition directing that the two plots would be treated as a compact area, and defendant No. 1's 8 annas share should be allotted in the eastern-most portion, whereas the plaintiff's ⅓rd share would be allotted in the western-most portion, and that defendant No. 2's 1/6th share would be allotted in between them.

3. Since defendant No. 1 had reoriented the old house the trial court valued the old house at Rs. 200/- and directed defendant No. 1 to pay the plaintiff and defendant No. 2 their respective shares out of the same. It further directed that in case any of the new constructions made by defendant No. 1 in plot No. 73 fell to the share of the plaintiff or defendant No. 2, that construction was to be valued and defendant No. 1 was to recover the price thereof from the party, to whose share that construction would fall. It further laid down that in case any single room or similar structure appertained-to the share of two persons and the division could not be made without destroying the intrinsic value of the property, the structure or room should be allotted to the party to whose share the major part of it appertains, and the other party should be entitled to be compensated to that extent.

4. It may be noted that during the trial of the suit, the plaintiff's share and the share of defendant No. 2 were sold to a third person, the deity being represented through the minar marfatdar's natural mother — the plaintiff — in the sad sale, and this purchaser wanted to be substituted as a party for the plaintiff and defendant No. 2. Shortly thereafter, defendant No. 1 purchased the deity's 1/6th share from the deity's minor marfatdar's ??? father, and defendant No. 1 wanted to be substituted for defendant No. 2. The trial court did not allow any of the substitution petitions holding that the rival purchaser of the deity's property raised controversial points which ware not necessary for determination within the scope of the suit for partition, and it left the respective purchasers to agitate their title in a separate suit in respect of the said 1/6th share. However, the trial Court apportioned the deity's share in the properly in between the plaintiff and defendant No. 2, probably with a view that whoever succeeded to the deity's share in future, might not be inconvenienced by the said arrangement.

5. The first appellate Court took the view that the deity's minor marfatdar's adoptive father was his legal guardian, and as such the sale by him of the deity's 1/6th share to defendant No. 1 was prima facie valid, and the rival purchaser, if he had any claim over the deity's property, was to agitate his title in a future suit. So, according to “the first appellate Court, defendant No. 1 was entitled to ⅔rds share out of the suit plots and fee plaintiff to ⅓rd share. Even if defendant No. 1 was to get ⅔rds share of the suit plot the total area to his share would come to .0856 acre.

6. The first appellate Court observed,

“The area in occupation of defendant No. 1 except the cow-shed and the Bari portion is to be allotted to the share of defendant No. 1 and the remaining portion to the share of the plaintiff. In case, defendant No. 1 is not found entilled to claim the share of defendant No. 2 defendant No. 2 be allotted the share to the continuous West of the share of the defendant No. 1 and defendant No. 1 will pay money compensation to defendant No. 2 for its share and no land be allotted to the share of defendant No. 2. Out of the excess area of A.O II decimals and odd in possession of defendant No. 1, the plaintiff will be allotted so much laudas is practicable out of the cow-shed and Bari portion (in possession of defendant No. 1) and in case in cannot be adjusted in full, the plaintiff will be awarded money compensation for the balance.”

7. Subject to these modifications, the appellate Court otherwise confirmed the decree of the trial court.

8. One of the main objections in the present appeal is about the way in which the appellate Court dealt with the share of defendant No. 2. It may be noted that defendant No. 2's marfatdar, who was a minor for some period, became major in 1952 while the suit was pending, and since then he directly represented the deity. The plaintiff's case about the deity's properly was that it was her property, purchased benami in the name of her son defendant No. 2's marfatdar, and that there was no deity in existence. The rival transfer of the deity's property involved several complicated questions, and the trial court did rightly exercise its discretion in leaving that aspect of the litigation out of the scope of the present suit.

9. Order 22, Rule 10 of the CPC provides that in case of devolution of an interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. As has been laid down in Chacko Pyli v. Varghese, AIR 1956 Trav-Co. 147 (FB).

“Where the transfer inter vivos is pendente lite, the transferee has no right to insist upon being impleaded in addition to or instead, of the transferor. It was a matter in the discretion of the court, whether to implead him or not, even if the transfer had been brought to the notice of the court and application made for bringing in the transferee by either of the parties to the transfer.”

10. Under the doctrine of lis pendens, a property in suit cannot be transferred or otherwise dealt with by any party to a suit or proceeding, so as to affect the right of any other party thereto under any decree or order that may be made in such suit, except under the authority of the Court. In the circumstances, the appellate Court had no jurisdiction to interfere with the discretion exercised by the trial court. Even if the appellate Court did want to go into the question, it went only half-heatedly by saying that the sale in favour of defendant No. 1 was prima facie valid. If the appellate Court thought that a decision was necessary on the point, it should have gone into the rival claims of both the parties. In the circumtnces, the appellate Court's finding that defendant No. I is the purchaser of defendant No. 2's 1/6th share cannot be maintained, since there has been no proper adjudication on that account.

11. The next point dealt by the appellate Court was that even if defendant No. 2 had his share still retained in the property, he should not be given any actual share, and he should be allowed the money value thereof. Defendant No. 1 was conscious that he had purchased only eight annas share in the property. If he extended his construction or possession to such an extent as to cover the major part of the suit land, he did so at his own risk and had no apparent bona fides for his activities. Thera is no equity in favour of defendant No. 1 to be allotted defendant No. 2's share in the land, compensating defendant No. 2 with the price thereof.

12. The appellate Court relied on Ashanulla v. Kali Kinkur, ILR 10 Cal 675, which lays down;

“If a property can be partitioned without destroying the intrinsic value of the whole properly or of the shares, such partition ought to be made; but where partition cannot be made without destroying the intrinsic value of the properly, then a money compensation should be given.”

13. in depriving defendant No. 2 of any actual allotment on the spot. The circumstances of the Calcutta case are different where original houses were there and the question was as to how to partition them amongst the different partners. But here was a case where defendant No. 1, with his eyes open, sought to extend his constructions covering more areas than he was normally entitled to have to his share.

14. The next direction of the appellate Court that the plaintiff, if necessary, might be compensated with money in case any part of the excess area in defendant No. 1's possession cannot be conveniently allotted to the plaintiff detrimental to defendant No. 1's interest, is similarly based on the said Calcutta decision. But, as I have pointed out, the theory laid down there cannot extend to a case of the present nature.

15. In the circumstances, the modifications suggeted by the appellate Court to the preliminary decree passed by the trial court cannot stand at all and they must have to be rejected. Now, the preliminary decree passed by the trial court has to be considered. No doubt, the trial court sought to allot the westernmost portion of the two plots to the plaintiff, the middle — portion to the defendant No. 2, and the easternmost portion to defendant No. 1. It has been found by both the Courts that defendant No. 1 has substantially remodelled the old house and raised many new constructions together with a compound wall in plot No. 73, mostly in its northern portion. The ordinary principle that has to be followed in partition is that possession of the parties should be respected as far as practicable. If the easternmost half of the suit land is allotted to defendant No. 1, some of his valuable construdtions would apparently fall in the share of defendant No. 2. The trial Court has been of the view that for those constructions, defendant No. 2 and the plaintiff, if any falls to her share, shall have to compensate defendant No. 1 by money.

16. There is no apparent justification in compelling the plaintiff or defendant No. 2 to pay compensation for any construction of defendant No. 1, that may fall within the area to be allotted to them, which they may not be in a financial position to meet, and which they may not need in their own interest. If, in the allotment, any of the constructions of defendant No. 1 falls to the share of any of the other two parties all that defendant No. 1 is entitled, is to get his construction and building materials removed from the staid area, and he is entitled to no further equity in view of the fact that without any partition or the consent of others he went on building constructions over the joint property of the parties. On the other hand, it would be equitable if as much of the constructions, as had been raised by defendant No. 1, can be allotted to his share without affecting the just, claim of the other parties.

17. This can be done by apportioning that part of plot No. 73 to the share of defendant No. 1 who is covered by the existing boundary wall raised by him on the western side, and the northern boundary and also the eastern boundary of plot No. 73 as they exist; only the southern boundary of that area has to be so aligned as to make out his total area (8 annas share) to .0635 acre out of the total area of .127 acre. This will not affect the-interest of other parties, since the residual of plot No. 73 will have an outlet to the lane on the western side, whereas plot No. 72 has its outlet both to the west and to the north. Since defendant No. 2's share is a bone of contention, it cam be so aligned as to touch the southern boundary of the area to be allotted to defendant No. 2 forming a contiguous strip having the eastern boundary of plot. No. 73 as its eastern boundary and the southern boundary of plot No. 73 as its southern boundary with outlet towards the lane. After carving out such an area from plot No. 73 favour of defendant No. 2, the rest of plot No. 73-and the whole plot No. 72 may be conveniently allotted to the share of the plaintiff.

18. The next question that was raised on behalf of the appellants was regarding the allotment of share in the compensation for the old house that had been remodelled by defendant No. 1. It was sought to be urged that the old house had been, virtually existing with very minor improvements. This is a question of fact, and both the Courts have held that the old house is not virtually there in its original state, and in its place there has been a remodelled construction with substantial alterations. Even if the old house would be existing and if it could not be adjusted to three shares conveniently, it can be, on the basis of ILR 10 Cal 675 (referred be above), the subject matter of valuation, and parties, who were not having their share in the old house, were normally to be compensated to the extent of their loss. Since both the courts have held that the valuation of the old house, as it stood before remodelling, was Rs. 200/-, no point of law arises to disturb that finding.

19. The next question is regarding mesne profits that was claimed by the plaintiff for defendant No. 1 enjoying the old house and a greater part of the suit land. In refusing the claim for such mesne profits, the trial court was of the view that in a suit for partition where joint possession has been claimed, the question of mesne profits cannot at all arise and further was of the view that since all the constructions had been raised by defendant No. 1, the plaintiff could not claim any share to the profits arising out of such constructions.

20. The appellate Court observed, relying on Shiva Narain Mahton v. Chandra Sekhar, AIR 1933 Patna 616 and Nathuram Agarwalla v. Abdul Latif, AIR 1935 Cal 478, that

“if a co-sharer does not take any steps to recover possession of the land from the other co-sharers, he should not be allowed a decree for mesne profits”.

21. The plaintiff claimed mesne profits from the date of the institution of the suit (17-3-45) and not for the prior period. If the claim for mesne profits would have related to any period prior to the suit, then the question of whether the plaintiff had taken any steps to recover possession within such period would have been a relevant consideration. No doubt, “mesne profits” as defined by C.P.C cannot be claimed in a suit of such nature, when there is no case of any wrongful possession, and when the possession of one co-owner is deemed to be on behalf of the other co-owner. By 1945, since when the share in profits was claimed by the plaintiff, the old house was no longer in existence there, and it had been converted and remodelled by defendant No. 1. In such a case, though the plaintiff or defendant No. 2 was not entitled to any share in the rent that has accrued or that can be deemed to have accrued from the remodelled and reconstructed house of defendant No. 1, still then they were entitled to a share from the ground rent, whatever its worth was. I would, in this connection, refer to the following passage from Basavayya v. Guravayya, AIR 1951 Mad 938 (FB).

“The question of profits or mesne profits arises in (1) Suits for ejectment or recovery of possession of immovable property from a person in possession without tide, 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 and (3) Suits for partition by a member of a joint Hindu family with a claim for an account from the manager…………. 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 all just allowances in favour of the collecting tenant-in-common…. Order 20, R. 12 of the CPC deals with the first class of suit above referred to, while O. 20, R. 18 deals with the second and third categories.” His Lordship in Ram Narain v. Ramji Prasad, AIR 1956 Pat 244 expressing agreement with the aforesaid Madras decision, observes,

“Even if there is no agreement between the parties regarding the profits accruing during the pendency of the suit may be made even after the passing of the preliminary decree”. In the present case, as I have said, the original house no longer existed and so the plaintiff and defendant No. 2, are not entitled to any share in the rents that defendant No. 1's building might have fetched. But then defendant No. 1 was in possession of .096 acre of land out of the suit land, whereas his legitimate share was .0635 acre. For his excess enjoyment he was to compensate the other parties by way of ground rent of whatever worth the same might be. The same has to be determined in course of the proceedings of the final decree and necessary direction for payment by defendant No. 1 has to be made in favour of the appellant on that account.

22. In the result, the appeal is allowed with costs of this Court, and the decrees passed by the courts below are modified to the extent indicated above. The order of the appellate Court regarding costs of courts below stands.

JE/L/V.B.B

23. Appeal allowed.

Mahadei Bewa And Another v. Keluni Dei .

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff's Arguments

Defendant No.1's Position / Conduct (as presented in the opinion)

Defendant No.2 / Deity (as presented in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Direct consequences and practical implications for the parties

Mahadei Bewa And Another v. Keluni Dei .

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