{"id":237816,"date":"1966-08-09T00:00:00","date_gmt":"1966-08-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mahanth-sudarshan-dass-vs-mahanth-ramkripal-dass-and-ors-on-9-august-1966"},"modified":"2018-07-30T08:42:50","modified_gmt":"2018-07-30T03:12:50","slug":"mahanth-sudarshan-dass-vs-mahanth-ramkripal-dass-and-ors-on-9-august-1966","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mahanth-sudarshan-dass-vs-mahanth-ramkripal-dass-and-ors-on-9-august-1966","title":{"rendered":"Mahanth Sudarshan Dass vs Mahanth Ramkripal Dass And Ors. on 9 August, 1966"},"content":{"rendered":"
Patna High Court<\/div>\n
Mahanth Sudarshan Dass vs Mahanth Ramkripal Dass And Ors. on 9 August, 1966<\/div>\n
Equivalent citations: AIR 1967 Pat 131<\/div>\n
Author: Mahapatra<\/div>\n
Bench: H Mahapatra, A Sinha<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
Mahapatra, J.  <\/p>\n
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.\n<\/p>\n
 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 :\n<\/p>\n
  “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.”\n<\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
 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:\n<\/p>\n
  “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.”\n<\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
A.B.N. Sinha, J.\n<\/p>\n
 11. I agree.<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Mahanth Sudarshan Dass vs Mahanth Ramkripal Dass And Ors. on 9 August, 1966 Equivalent citations: AIR 1967 Pat 131 Author: Mahapatra Bench: H Mahapatra, A Sinha 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-237816","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nMahanth Sudarshan Dass vs Mahanth Ramkripal Dass And Ors. on 9 August, 1966 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mahanth-sudarshan-dass-vs-mahanth-ramkripal-dass-and-ors-on-9-august-1966\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mahanth Sudarshan Dass vs Mahanth Ramkripal Dass And Ors. on 9 August, 1966 - 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