JUDGMENT
Mahapatra, J.
1. This appeal is directed against an adverse order passed on an application for determination of mesne profits till the date of delivery of possession of property to the applicant who filed partition Suit No. 89 of 1932 with a prayer for mesne profits, past, pendente lite and future. The facts, in brief, leading to this application were as follows.
2. The present appellant filed a partition suit claiming his share in the suit property. In that suit he also prayed that a decree might be passed for past mesne profits as well as pendente lite and future. The defendants also filed title Suit No. 72 of 1933, in which they ask for a declaration of their title and for adjudication that the plaintiff of the partition suit had no title whatsoever to the said property. Those two suits were tried together, and the trial Court dismissed the partition suit and decreed the title suit of the defendants. Those cases were taken to the High Court without any success, whereupon the plaintiff of the partition suit went to the Judicial Committee, and that appeal was disposed of on the 21st November, 1949. It was held by their Lordships that the title of the defendants of the partition suit (who were the plaintiffs in Title Suit No. 72 of 1933) had been completely extinguished by the adverse possession of the plaintiff of the partition suit for a period of more than twelve years. They found that on the 23rd September, 1920, the plaintiff was formally installed in possession by the officer of the Court. The partition suit was instituted in 1932, whereas the title suit was instituted in 1933. By the date the title suit was filed in Court, the plaintiff had been in possession adverse to the defendants (plaintiffs of the title suit) for more than twelve years. In that view, the title suit was dismissed and the partition suit was decreed by the Judicial Committee. The ordering portion in the judgment delivered by Lord Radcliffe was :
“If this is so, it follows that when the Title Suit was instituted on ‘ 7th November, 1933, the appellant had been for over 12 years in adverse possession Consequently the suit must be treated as barred by limitation. If the respondents are thus precluded from disputing the appellant’s title to his share, it follows that the Partition Suit must succeed. Their Lordships will therefore, humbly advice. His Majesty that this appeal should be allowed and that the two decrees of the Additional Subordinate Judge of Darbhanga dated 30th June, 1935, and the two Decrees of the High Court at Patna dated 20th March. 1942 should be set aside and that the respondents should pay to the appellant his costs in those Courts. In place of these decrees the Title suit should be dismissed and the partition suit remitted to the Court of the Additional Subordinate Judge at Darbhanga with instructions to proceed with the case in accordance with this judgment. Their Lordships will humbly advice His Majesty accordingly. The respondents must pay the appellant’s costs of this appeal.”
3. Thereafter, the plaintiff took steps in his partition suit for appointment of a pleader commissioner to effect partition of the properties by metes and bounds, and on the 16th June, 1952, the Court, after accepting the commissioner’s report, directed final decree to be prepared, and on the 7th August, 1952 the final decree was sealed and signed.
4. Four years thereafter on the 20th August, 1956 an application was made by the plaintiff for ascertainment of mesne profits which was rejected, and against that, the present appeal was brought to this Court.
5. Learned counsel appearing for the appellant urged that the Court below should have entertained the plaintiff’s application and proceeded to enquire what would be the amount of mesne profits, to which he was entitled Me pointed out from the judgment of the Judicial Committee that there was some observation that the plaintiff was in actual possession from the 23rd September 1920 until some time in the year 1934. The trial Court on a direction from the High Court while the first appeal was pending before the High Court found that the plaintiff was dispossessed in 1934 during the pendency of the partition suit. Learned counsel contended that from 1934, when the plaintiff was dispossessed, till the date of delivery of possession, in pursuance of the final decree, the plaintiff was entitled to recover mesne profits from the defendants, and his application was maintainable This argument has more than one infirmity.
6. In the plaint in the partition suit, the plaintiff claimed a decree for mesne profits past pendente lite and future. By the judgment of the trial Court, his suit was dismissed. In that judgment the trial Court held that the plaintiff was not entitled to any share and in that view he was also not entitled to any mesne profits No doubt, that judgment was set aside by the Judicial Committee in November 1949. The preliminary decree was to be in accordance with the judgment of the Judicial Committee. Both in the judgment of the Judicial Committee and the preliminary decree following there was no mention whatsoever about the plaintiff’s claim to mesne profits past pendente lite or future. It has to be taken that the plaintiff’s claim in that respect was disallowed. Learned counsel for the appellant however stressed upon the ordering portion of the judgment of the Judicial Committee which I have quoted above where if was stated that the partition suit must succeed. There may be some force in the contention of the learned counsel that the ordering portion meant that the entire reliefs claimed by the plaintiff in his partition suit were to be allowed. In that view during the proceedings of the final decree mesne profits should have been enquired into at least in regard to the past and pendent lite. Neither the plaintiff took any step in that direction not did the Court do anything in that respect. When the final decree was passed without any reference to mesne profits or even any direction for mesne profits to he determined later on the plaintiff could have come in appeal against that final decree. He did not do so.
Thus, rightly or wrongly, the decree passed in the partition suit did not include any reference to mesne profits, as claimed by the plaintiff in his plaint. That would be taken to mean that the plaintiff’s claim in that respect was disallowed or, to put it in the mildest form, the Court inadvertently or intentionally omitted that from the decree- both in the preliminary form and in the final from Without an appeal against that, that matter has become final, and in that view, the present application filed before the trial Court for determining the amount of mesne profits was not maintainable.
7. Learned counsel however argued relying upon the case of Basavayya v. Guravayya, AIR 1951 Mad 938 (FB) that though the decree was silent about mesne profits, the Court was not deprived of the jurisdiction to enquire into the claim of the plaintiff about mesne profits and to determine the amount which he may be entitled to receive from the defendant That decision does not support the appellant’s contention. There, the plaintiff obtained a preliminary decree for partition of joint family properties and later on, during the pendency of the partition suit, applied for an enquiry into the profits of the properties realised by the defendants subsequent to the institution of the suit and for a final decree for his share of such profits The defendants opposed the application on the grounds that there was no prayer in the plaint for the recovery of such profits and that the preliminary decree passed in that suit did not direct an enquiry into the same The trial Court overruled those objections as untenable in law and directed an enquiry into the merits of the plaintiff’s claim for mesne profits An application in civil revision against that order was filed before the Madras High Court.
Thus it is clear that in that case the plaintiff did not claim for mesne profits in his plaint, and the omission of any reference to that part in the preliminary decree did not amount to refusal of that claim Secondly the plaintiff in that case, after the preliminary decree but before the final decree made his application for determination of mesne profits due to him and for inclusion of the same in the final decree That was permissible, and the Full Bench, in that context and on those facts held that the Court had jurisdiction to entertain such an application although the preliminary decree was silent in that respect The defendants there relied upon another decision of that Court in Ghulusum Bivi v. Ahmadsa Rowther ILR 42 Mad 296 (AIR 1919 Mad 998) where it was stated that if the preliminary decree intentionally omits that is to say refuses to direct an enquiry into future mesne profits that decision will subject to the result of any appeal be binding on the parties in all the subsequent stage of the suit and no application can thereafter be made in the course of the suit for an enquiry into such profits. The Full Bench repelled that argument by saving that where a decree awarding partition is silent with regard to an inquiry into 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 Civil Procedure prohibiting the decree-holder from applying to the Court during the pendency of such suit for an enquiry into future mesne profits or the Court from ordering such an enquiry. The Court may, in the exercise of its discretion, refuse an enquiry leaving the decree holder to a fresh suit for such profits. If it does order an enquiry, it is bound to incorporate the result in a final decree.
On the facts of that case, the above observation of the Full Bench meant only that when the plaint did not ask for mesne profits and necessarily the preliminary decree did not have any reference to that, it was open to the plaintiff before the final decree to apply for determination of mesne profits and to get an adjudication from the Court in that respect and to have it incorporated in the final decree. It is in that way that the observations in ILR 43 Mad 296: (AIR 1919 Mad 998) were distinguished and not applied to that case by the Full Bench. I do not find as far as the instant case is concerned, how the decision of the Full Bench of the Madras High Court, referred to above, can help the appellant, because the plaint here itself included that prayer for mesne profits, which was not acceded to either in the preliminary decree or in the final decree.
8. Learned counsel’s next contention was that there can be more than one final decree in a case, and in the present case that should have been done. Although the final decree passed on the 16th June, 1952, did not include the plaintiff’s claim for mesne profits, yet when the present application was made, another final decree should have been passed by the Court, after enquiring into the plaintiff’s claim in that respect. We are aware that the Code of Civil Procedure does not prohibit that more decrees in preliminary form may be passed in an appropriate case. Even, interim final decrees in regard to parts of the subject-matter of the suit may be passed in some cases, but ultimately there will be one final decree even in such a case. If by a final decree the suit has come to a termination, there will be no scope for making another final decree Learned counsel referred to an observation in the commentary on the Code of Civil Procedure by Mulla, Volume I Edition 1965, at page 13, where it is stated:
“The question has sometimes arisen for decision whether there can be more than one preliminary decree and one final decree in a suit. On that judicial opinion is divided; some decisions take the view that there can be only one preliminary decree and one final decree, while others hold that there is nothing in the Code prohibiting the passing of more than one preliminary or final decree. The latter, if is submitted is the better opinion.”
The last portion is based upon some decisions also referred to in the commentary. We have looked to them. They do not take the matter to the extent at which it has been baldly stated in the quoted portion of the commentary. What has been decided in these cases comes to this: in an appropriate case there can be more than one decree in the preliminary form; there can be one or more interim final decrees, but one final decree. Even in the case decided by the Full Bench of the Madras High Court already referred to their Lordships observed that there may be more than one preliminary decree, but one final decree in the case. I, thus, do not find any substance in the contention of the learned counsel that there could have been more than one final decree in the present case, and on his application, out of which this appeal arises, there should have been an enquiry by the Court, and if the plaintiff succeeded in establishing his claim for mesne profits, another final decree should have been passed by the trial Court.
9. It may be stated here that the application by the plaintiff was filed for mesne profits more than four years after the final decree was passed and at the end of three years from the date of delivery of possession of the property to him. If such an application is permitted, and learned counsel contended that there was no limitation for such an application, then a litigant can very well come to the Court many many years after the final decree in a partition suit is passed and after its execution comes to an end and revive his dispute with the defendants in the same suit which was terminated long before. A position like this cannot be encouraged by Court.
10. For all the reasons given above, this appeal does not have any merit and shall have to be dismissed. The plaintiff was perhaps entitled to mesne profits, but by his own laches he has lost his claim. In that view there will be no order for costs in this appeal.
A.B.N. Sinha, J.
11. I agree.