THE HON’BLE SRI JUSTICE M.

SATYANARAYANA MURTHY
CIVIL REVISION PETITION NOs.7005, 7017, 7022, 7106, 7107 & 7108 OF 2017

COMMON ORDER:

All these civil revision petitions are filed under Article 227 of

the Constitution of India, challenging the common order in

I.A.Nos.304,305 & 306 of 2015 in O.S.No.933 of 1981 dated

04.10.2017 passed by the II Senior Civil Judge, City Civil Court,

Hyderabad.

Petitioner in C.R.P.Nos.7005, 7017 & 7022 of 2017 is the

first respondent before the Court below, whereas, the petitioner in

C.R.P.Nos. 7106, 7107 & 7108 OF 2017 is the third respondent

before the Trial Court.

For the sake of convenience, they will hereinafter be referred

as referred before the Trial Court.

I.A.No.304 2015 was filed by the petitioners/plaintiffs under

Order XXVI Rule 13 r/w 151 C.P.C for appointment of an Advocate

Commissioner to divide the Plaint ‘A’, ‘B’ & ‘C’ Schedule properties

in O.S.No.933 of 1981 by metes and bounds. I.A.No.305 of 2015

was filed for passing a final decree in respect of the above

properties and I.A.No.306 of 2015 was filed for determination of

mesne profits in respect of 3/98th share of the petitioners/plaintiffs

for the above properties and to enable them to withdraw their

share out of the said amount.

As far as the relationship among the parties is concerned,

Sri S. Ramchandra Reddy had two wives, namely

Shankaramma/Sole Plaintiff/Plaintiff No.1 (first wife) and

Mannemma/Defendant No.2 (second wife). Through the first wife

Shankaramma, the said Ramchandra Reddy had a daughter,

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namely Padmamma/Defendant No.4/Plaintiff No.2. Through the

second wife Manemma, the said Ramchandra Reddy had one son,

namely S. Ramakrishana Reddy/Defendant No.1 and also a

daughter, namely Subhashini/defendant No.3. The available

record also shows that the second wife of Sri S. Ramchandra

Reddy died on 17-05-2009, but no separate LR petition was filed.

However, it is also mentioned that her son and daughter who are

defendant Nos.1 and 3 are already on record and that even the

said defendants did not prefer to intimate the death of Manemma

even to the Supreme Court in the Civil Appeal was pending. At any

rate, the defendant Nos. 1 and 3 are also not contending that there

are other LRs to be impleaded in the present proceedings and

therefore the question of abatement does not arise. Similarly, it

can also be seen that the daughter and son of Padmamma/Plaintiff

No.2 were also brought on record during the pendency of the LPA

Proceedings before High Court and infact in the LPA Proceedings

No.3/1993, CCCA No.25 & 30 of 1998, W.P.No.16843/1992 and

W.P. No.5404/1995 they were arrayed as petitioner Nos.3 and 4,

namely Smt G Manjula and Sri N. Sree Kanth Reddy, consequent

upon the death Smt. Shankaramma/Plaintiff No.1. Hence, there is

no dispute regarding the relationship among the parties.

Relationship among the parties to the suit and subsequent

proceedings till date are not disputed. However, one Sri Subbagari

Ramchandra Reddy and Subbagari Anantharam Reddy were

brothers and they have partitioned their properties. To the limited

extent required for this case, the Plaint 'A' Schedule properties

consisting of item Nos.1 to 14 were also partitioned and both the

brothers have half share each. The half share which fell to Sri Late
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S. Ramchandra Reddy is the subject matter in the present

proceedings apart from the total property in plaint B and C

schedule properties. The total extent of the Plaint ‘A’ Schedule

item Nos.1 to 14 is Ac 26.37 Guntas and as per the Plaint 'A'

Schedule in the case on hand, the property sought for partition is

Ac 13.18 Guntas. The Plaint 'B' Schedule is a house bearing

Municipal No.2-2-977 and the Plaint 'C' Schedule Mulgi is bearing

Municipal No.2-2-1010. All the Plaint 'A', 'B' and 'C' schedule

properties are situated at Bagh Amberpet Tq, Musheerabad,

Hyderabad.

O.S.No. 933/1981 was filed on behalf of the sole plaintiff/

Smt Shankaramma against the defendant Nos.1 to 4.

Subsequently, the 4th defendant/Smt. Padmamma was transposed

as Plaintiff No.2 in the suit proceedings. The court below had

decreed the suit partly by disallowing partition of item Nos.1 to 6

in Plaint 'A' Schedule on the ground that occupancy rights

certificate was issued to the defendant No.1 and passed a

preliminary decree on 24-04-1989 after contest and 1/5th share to

each of the parties is to be allotted in all the other suit schedule

properties.

Aggrieved by the said Judgment, the defendant No.1

preferred an appeal in CCCA No.94/1989 and the plaintiffs

preferred cross-objections. On contest, this Court has confirmed

the judgment passed by this court so far as item Nos.1 to 6 are

concerned, thereby dismissed the cross objections in the appeal

and also modified the decree passed by this court so far as the

allotment of shares are concerned. As per the said decree plaintiff

No.1 and Defendant No.2 were allotted 1/8th share each and
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Plaintiff No.2, Defendant Nos.2 & 3 were allotted 1/4th share each

respectively in item Nos.7 and 8 of 'A' Schedule and 'B' and 'C'

Schedule properties, thereby modifying the shares allotted by this

Court. It was also observed that the question regarding the

partition of the house in 'B' Schedule may be decided by the lower

court in the final decree proceedings while working out equities

between the parties. In so far as partition of plaint 'A' schedule

Item Nos.9 to 14 are concerned, this Court observed in Para 2 of

the Preliminary Decree, dated: 24-09-1992 as follows :

“that, the plaintiffs shall be entitled to their share of the amount

deposited in the court towards the value of the item Nos.9 to 14 of
plaint schedule as the authority of the urban land (Ceiling &
Regularization) Act have determined the excess land vested in the
Government and granted permission to sell some extent of the
land, which is already sold, and as the value of the land is
deposited in the court.”

Aggrieved by the order passed by this Court, the Plaintiffs

preferred LPA No.3/1993, CCCA No.25 & 30 of 1998,

W.P.No.16843/1992 and W.P. No.5404/1995 and the same was

also dismissed vide judgment dated.11-08-2006. Subsequently, as

against the said judgment, the plaintiffs preferred an Appeal before

the Supreme Court, in Civil Appeal No.3632/2008 and the same

was disposed off on merits on 30-10-2014. The Supreme Court

passed the Decree in the said Civil Appeal and as seen from the

decree copy received by this court, it runs as follows :

“We allow this appeal and set aside the judgment and order
passed by the Courts below to the extent the same hold that inam
lands granted in favour of respondent no.1 upon abolition of the
inam under the Andhra Pradesh (Telangana Area) Abolition of
Inams Act, 1955 are not partible amoung the heirs left behind by
Shri Ramachandra Reddy. The suit filed by the appellants shall
resultantly stand decreed even qua the inam land in the same
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ratio as has been determined by the High Court by the impugned

judgment in regard to other items of properties. No costs.”

In view of the factual matrix narrated above, the resile of the

suit from Trial Court to Apex Court has changed from time to time

and the judgments of the Trial Court and First Appellate Court are

merged in the judgment of the Supreme Court. Therefore, the

judgment of the Apex Court is the final decision with regard to

rights of the parties and accordingly, a preliminary decree was

passed for partition of ‘A’, ‘B’ & ‘C’ schedule properties.

In view of the decrees passed by the different Courts in the

suit, the plaintiffs and defendants are entitled to the following

shares:

Plaintiff No.1 Shankaramma (first wife) : 1/8th share.

Plaintiff No.2 Padmamma (daughter) : 1/4th share.
Defendant No.2 Manemma (second wife) : 1/8th share.
Defendant No.1 Ramakrishna Reddy (Son) : 1/4th share.
Defendant No.3 Subhashini (daughter) : 1/4th share.

Further, Item Nos.1 to 6 of Plaint A Schedule property have

been confirmed for partition by the Supreme Court. Item Nos.7 and

8 of Plaint A Schedule property have been confirmed for partition

as decreed by this Court. With regard to Item Nos.9 to 14 of Plaint

‘A’ Schedule property, a modified decree was passed by this Court

and this Court confirmed that, Plaint ‘B’ and ‘C’ Schedule

properties are also available for partition.

Thus plaintiff No.1 and Defendant No.2 did not dispute their

entitlement regarding failure to bring other LRs of the said parties

to be brought on record. Thus, the shares through the first wife

can be summed-up as 3/8th and the shares through the second

wife can be summed-up as 5/8th share. It is also an undisputed

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fact that the share value of the property of Item Nos.9-14 of Plaint

‘A’ schedule property is deposited to the credit of the suit and it is

lying with the Court. Hence, I.A.No.304 2015 was filed by the

petitioners/plaintiffs for appointment of an Advocate

Commissioner to divide the Plaint ‘A’, ‘B’ & ‘C’ Schedule properties

in O.S.No.933 of 1981 by metes and bounds. I.A.No.305 of 2015

was filed for passing a final decree in respect of the above

properties and I.A.No.306 of 2015 was filed for determination of

mesne profits in respect of 3/8th share of the petitioners/plaintiffs

for the above properties and to enable them to withdraw their

share out of the said amount, based on good and bad quality with

easementary rights and appoint Advocate Commissioner for

division of the property in terms of the decree passed by the

Supreme Court and to determine the mesne profits, alleging that

the defendants were in unlawful possession from the date of suit.

The respondents disputed the right of the plaintiffs to claim

final decree in terms of the decree passed by the Trial Court,

modified by this Court and Supreme Court. As the petitioners were

not entitled to claim right in various items of the property, they

filed common counter in all the three petitions, extracting certain

portions of judgment of Supreme Court, this Court, Court below,

shares of each of the defendants and plaintiffs, along with

observations of the Courts i.e from Trial Court to Apex Court, while

admitting that the respondents deposited amount as per the order

passed in C.M.A.No.363 of 1982 in I.A.No.1051 of 1981 and

intentionally not disclosed the same for the reasons best known to

the petitioners, thereby, Item Nos.9-14 of ‘A’ schedule property are

not available for partition. It is also contended that Item Nos.7 & 8
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of Plaint ‘A’ schedule property are not available for partition. It is

also contended that Item Nos. 7 to 9 cannot be partitioned, as

claiming share in these three items is nothing but playing fraud

and alienating the properties, and thereby, violation of the order of

the respondent is not only incorrect, but also far from truth. The

order in C.M.A.No.363 of 1982 and I.A.No.1051 of 1981 are suffice

to conclude that the petitioners played fraud on the record and

sought for reliefs referred supra.

It is also contended that the petitioners are no way

concerned with the commercial complex, as the amount equivalent

the value of the property was already deposited into the Court and

called upon the petitioners to put the same to strict proof regarding

their entitlement in ‘B’ & ‘C’ schedule properties. Item Nos.9 to 14

of Plaint ‘A’ schedule property cannot be partitioned, as such,

property is available for partition, in view of depositing amount, as

directed by this Court and the petitioners can withdraw the

amount equivalent to their share. Therefore, the petitioners are not

entitled to claim partition of properties described in Item Nos.9 to

14 of Plaint ‘A’ schedule property and that the petitioners are also

not entitled to claim mesne profits, as no such claim was made in

the plaint itself.

The respondents specifically contended that the property

covered by Items Nos.1 to 8 of Plaint ‘A’ schedule property is

agricultural land assessed and where the decree is for partition of

an undivided estate assessed to the payment of revenue by the

Government or for the separate possession of a share of such an

estate, the partition of the estate or the separation of the share

shall be made by the Collector or any gazetted subordinate of the

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Collector deputed by him, in accordance with law, as contemplated

under Section 54 C.P.C, but not by appointing an Advocate

Commissioner.

It is contended that these petitioners are not entitled to 3/8th

share, as claimed in the petition by appointing an Advocate

Commissioner or question of granting mesne profits does not arise.

With regard to prejudice to the rights of the respondents, they

asserted that, no such claim was made either before the Court or

any other Courts, throughout till termination of the proceedings in

the Apex Court. It is also contended that ‘B’ schedule property is

not divisible and even if the Commissioner is appointed, no

purpose would be served, as the property is indivisible. Therefore,

the petitioners are not entitled to claim any relief and prayed for

dismissal of the petitions.

The Court below upon hearing arguments of both the

counsel, ordered I.A.Nos.304,305 & 306 of 2015. Aggrieved by the

common order passed in all the three I.As, the first respondent

preferred C.R.P.Nos.7005, 7017 & 7022 of 2017 and the third

respondent filed C.R.P.Nos. 7106, 7107 & 7108 of 2017

challenging the common order in I.A.Nos.304,305 & 306 of 2015

on various grounds.

The main grounds urged in the petition in the present

revisions are identical in all the petitions. Item Nos. 9 to 14 are the

part of one M/s. Poornodaya Cooperative Housing Society Limited

layout and they are not available for partition. Apart from that,

question of determining future profits without claim, no

preliminary decree was passed for mesne profits on 24.04.1989,

appointing an Advocate Commissioner to conduct enquiry to

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determine mesne profits payable towards the share of the

respondents 1 to 4 is an illegality.

It is specifically contended that the application is vexatious

and not maintainable insofar as Item Nos.9 to 14 of Plaint ‘A’

schedule is concerned and that this Court in CCCA No.94/1989

passed a judgment which is challenged in LPA Proceedings

No.3/1993, CCCA No.25 & 30 of 1998, W.P.No.16843/1992 and

W.P. No.5404/1995, but, passing an order for division of Item

Nos.9 to 14 of Plaint ‘A’ schedule property was closed completely

by the Division Bench, having declared in an appeal against the

preliminary decree that the amount that can be partitioned is what

was the consideration received from M/s. Poornodaya Cooperative

Housing Society Limited. Therefore, this question cannot be re-

agitated when it has attained finality in the present petitions. But,

the Trial Court committed an error in ordering petitions for

appointment of Advocate Commissioner for division of the property

and for allotment of due share of the property to respondents

1 to 4.

The Court below ignored the deposit of amount towards the

share of the respondents 1 to 4 and again ordered for division of

the property. The commercial complex constructed by D-1 is

exclusive property and the same cannot be partitioned, as the

schedule property was ordered to be partitioned by the Trial Court,

Appellate Court and Apex Court.

When the Special Officer and Competent Authority under

Urban Land (Ceiling & Regularization) Act, had determined the

holding of the petitioner as 6443.5 sq.mts in

Sy.Nos.283/1,283/2,283/3,284 and 285 and the said order has

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become final and unchallenged, therefore, the petitioner is entitled

to the sale consideration equivalent to the value of the land which

was determined by the Special Officer for Item Nos.9 to 14 of ‘A’

Schedule Property and the commercial complex has been

constructed in the said land, exclusively belonging to the

petitioners cannot be partitioned. But, the Trial Court on

erroneous appreciation of facts, committed an error in ordering

petitions appointing Advocate Commissioner directing him to

divide the property shown in the schedule.

During hearing, learned Senior Counsel Sri S. Ravi,

appearing on behalf of Sri Ch. Pushyam Kiran contended that,

when a preliminary decree was passed by the Trial Court and

affirmed by the Apex Court with slight modification, the same

cannot be reopened in the final decree petition, since the scope is

limited and appointing an Advocate Commissioner to determine

the mesne profits is nothing but reopening a preliminary decree,

since no such relief was claimed and granted by the Court below or

by any of the Courts upto Supreme Court, as such, appointing an

Advocate Commissioner to determine the mesne profits is contrary

to the law and placed reliance on the judgments of the Supreme

Court, Madhya Pradesh and this Court in Venkata Reddi and ors.

v. Pothi Reddi1, Muthangi Ayyanna v. Muthangi Jaggarao and

ors2, Devisahai and ors. v. Sardar Govindrao Mahadik and ors3

and Neelam Chittemma and others v. Tirlangi Appa and

others4. It is also contended that, by applying the principles laid

down by various Courts in the above judgments, the Trial Court

1
1963 (2) AnWR 126
2
(1977) 1 SCC 241
3
AIR 1992 MP 13
4
2014 (4) ALD 269
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ought to have dismissed the interlocutory applications filed for

appointment of Advocate Commissioner to determine mesne

profits.

It is specifically contended that, Item Nos.9 to 14 were

excluded from partition by this Court in CCCA No.94/1989, which

is affirmed in LPA Proceedings No.3/1993 and confirmed by this

Apex Court. In such case, in view of the finding regarding Item

Nos.9 to 14 of Plaint ‘A’ Schedule Property, the Trial Court in an

application filed for passing final decree cannot be disturbed.

Learned Senior Counsel further contended that, Item Nos.9 to 14

were excluded from partition while admitting the petitioner to

deposit the share of the sale consideration of respondents 1 to 4

into the Court, the property cannot be partitioned at this stage and

appointing an Advocate Commissioner for dividing the plaint

schedule property i.e. Item Nos.9 to 14 is a serious illegality and

prayed to set-aside the order passed by the Court below.

Learned counsel for the respondents 1 to 4 Sri K. Srinivasa

Murthy refuted the contentions of the learned counsel for the

petitioners and supported the order in all respects while drawing

attention of this Court to paragraph 31 of the judgment of this

Court in CCCA No.94/1989, where the Court did not disturb the

findings of the Trial Court even for Item Nos.9 to 14 of ‘A’ Schedule

Property. It is also contended that this Court cannot normally

exercise the power under Article 227 of the Constitution of India.

Article 227 of Constitution of India deals with power of

superintendence by the High Court over all Subordinate Court and

Tribunals. The power of superintendence conferred upon the High

Court by Article 227 is not confined to administrative

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superintendence only, but includes the power of judicial revision

also even where no appeal or revision lies to the High Court under

the ordinary law, rather power under this Article is wider than that

of Article 226 in the sense that it is not subject to those

technicalities of procedure or traditional fetters which are to be

found in certiorari jurisdiction and such power can also be

exercised suo motu. It is a well settled principle that the High

Court can exercise supervisory power under Article 227 of

Constitution of India, as held by the Apex Court in State (N.C.T.

Of Delhi) v. Navjot Sandhu@ Afsan Guru5 that under Article 227

of Constitution of India the High Court can interfere with the

directions of the Subordinate Courts. In view of the law laid down

by the Apex Court, this Court cannot exercise its power under

Article 227 of the Constitution of India though the order is wrong,

since the power can be exercised only to keep the subordinate

Courts and Tribunals within its bounds. Therefore, in view of the

limited jurisdiction, this Court cannot re-appreciate the entire

material again by giving a different interpretation to the judgment

of the Court below and this Court in CCCA No.94/19, LPA

Proceedings No.3/1993 and judgment of Apex Court in Civil

Appeal SC 3632/2008 dated 30.10.2014. Keeping in view the law

declared by various Courts with regard to limited jurisdiction, the

power of this Court under Article 227 of the Constitution of India,

requested to dispose of the revisions in accordance with law, while

supporting the common order impugned in these revision

petitions.

5
(34)2005 (3) ALT (Crl.) 125 (SC)
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Considering rival contentions, perusing the material

available on record, the points that arise for consideration are as

follows:

1) Whether an Advocate Commissioner can be appointed

to ascertain the mesne profits when there was no claim

for grant of mesne profits throughout the proceedings

from Trial Court to Supreme Court?

2) Whether an Advocate Commissioner can be appointed

to divide the property in terms of preliminary decree

and for allotment of one such share to the respondents

1 to 4?

P O I N T NO.1:

The first and foremost contention raised by the learned

Senior Counsel for the petitioner herein is that, the Court below,

Appellate Court and Apex Court did not pass any decree for grant

of mesne profits. Thereby, appointment of Advocate Commissioner

to ascertain the mesne profits by exercising power under Order XX

Rule 12 C.P.C is erroneous.

Whereas, learned counsel for the respondents contended

that, even if no preliminary decree is passed, permitting this

petitioner to file appropriate application to determine mesne

profits, the Court can appoint an Advocate Commissioner for the

said purpose.

It is an undisputed fact that the Trial Court passed a

preliminary decree for partition of Item Nos.1 to 6 of Plaint ‘A’

Schedule Property and Item Nos. 7 & 8 of Plaint ‘A’ Schedule

Property, which are available for partition. Thus, the Trial Court
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passed a preliminary decree for division of Item Nos. 7 & 8 of ‘A’

Schedule properties and other properties mentioned in the

preliminary decree. The Trial Court also held that Plaint ‘B’ & ‘C’

schedule properties are available for partition and determined the

share of each party to the suit. Aggrieved by the preliminary decree

and judgment of the Trial Court, preferred an appeal in

CCCA No.94/1989 and this Court modified the preliminary decree

by decree and judgment dated 24.09.1992. In paragraph 4 of the

said judgment, it is clear that Plaint ‘B’ schedule house may be

divided by the Court in the final decree proceedings, while working

out the equities between the parties. Further, the plaint without

schedule mulgi was ordered to be partitioned between the plaintiff

and defendants, as per the preliminary decree dated 24.04.1989.

The High Court held that Item Nos.1 to 8 are Inam lands and they

cannot be partitioned, as it would on Government on the advent of

Telangana Inams Abolition Act. Aggrieved by the decree and

judgment in CCCA No.94/1989, LPA was preferred and in the

LPA Proceedings No.3/1993, this Court held that those Item Nos.1

to 6 which are Inam lands cannot be partitioned, but in the Civil

Appeal No.3632/2008, the Supreme Court took a different view

and held that Item Nos. 1 to 6 of Plaint ‘A’ Schedule Property are

liable to be partitioned, though they are Inam Lands. Thus, Item

Nos. 1 to 8 of ‘A’ Schedule Property and Plaint ‘B’ & ‘C’ Schedule

properties are liable for partition, while the plaintiffs/respondents

1 to 4 are entitled to claim share proportionate to the share of the

sale consideration deposited proportionate to their share

determined by the Court. The shares of each individual finally

decided by the Courts are mentioned in the earlier paragraphs.

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When the suit is filed and paid fixed court fee under

Section 34(2) of A.P. Court Fee & Suits Valuation Act (for short

‘APCF & SV Act’), while claiming that they are in joint possession

and enjoyment of the property along with the defendants, the

defendants possession cannot be termed as wrongful or

unauthorized, to enable the respondents 1 to 4 to claim mesne

profits.

The expression ‘mesne profit’ is defined under Section 2(12)

C.P.C, which reads as follows:

"'Mesne profits' of property means those profits which the

person in wrongful possession of such property actually
received or might with ordinary diligence have received
therefrom, together with interest on such profits but shall
not include profits due to improvements made by the
person, in wrongful possession".

Order XX Rule 12 C.P.C permits the Court to appoint

Advocate Commissioner to determine the mesne profits payable by

the person who is in wrongful or illegal occupation of the property.

But, in the suit for partition, the plaintiffs are not entitled to claim

mesne profits when they specifically asserted that they are in joint

possession and enjoyment of the property and paid fixed court fee

under Section 34(2) of the APCF & SV Act. More curiously, the

court below did not pass any decree permitting the respondents 1

to 4 to file an application for determination of mesne profits. This

Court and the Apex Court did not touch the aspect of mesne

profits. When the plaintiffs/respondents 1 to 4 are claiming to be

in joint possession and enjoyment of the property and paid Court

fee under Section 34(2) of APCF & SV Act, the plaintiffs and

defendants are deemed to be in joint possession and enjoyment of

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the property. When their possession is lawful, directing the

petitioners herein to pay mesne profits on determination, by

appointing an Advocate Commissioner is an illegality. In a suit for

partition, at best, the plaintiffs are entitled to claim rendition of

accounts of the amount received by the defendants from the

subject matter of the property, but not entitled to claim mesne

profits. But, the Court below, basing on the law declared by

various Courts in Babburu Basavaya and others v. Babburu

Guravayya and another6, Simma Krishnamma v. Nakka

Latchumanaidu and others7 and Gopalakrishna Pillai and

others v. Meenakshi Ayal and others8, held that, in a suit for

partition, though relief of mesne profits was not granted in a

preliminary decree, the Court while passing a final decree can

appoint an Advocate Commissioner for determination of mesne

profits.

In Babburu Basavaya and others v. Babburu Guravayya

and another (referred supra), the Court held that future mense

profits can be ordered even though not claimed in the partition

suit. It is also observed that Order 20 Rule 18 of CPC does not

prohibit the Court from issuing such directions after the stage of a

preliminary decree. The mere fact that the preliminary decree does

not direct an enquiry into the profits subsequent to the date of suit

does not preclude the parties from applying for, or the court from

awarding such profits by its final decree. This enquiry can be

ordered either as part of the preliminary decree itself or

subsequently as a step towards the passing of the final decree, and

6
AIR 1951 MADRAS 938
7
AIR 1958 AP 520
8
AIR 1967 SC 155
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in either case the result of the enquiry has to be incorporated in

the final decree.

Similarly, in Simma Krishnamma Vs. Nakka

Latchumanaidu and others (referred supra), it is observed by this

Court that in a proper case, even where a supplementary final

decree can be made, the court is not precluded from ascertaining

the profits and including the same in the supplementary decree. It

is further observed that if the ascertainment of future profits is not

ordered, the legal position is that the entire subject matter of the

suit has not been finally disposed off and on that basis, it may be

open to the court to make another supplementary final decree in

regard to profits.

But, in Gopalakrishna Pillai and others Vs. Meenakshi

Ayal and others (referred supra), the Supreme Court observed

that the Court has a discretionary power to pass a decree directing

an enquiry into future mesne profits. It is also observed by the

Apex Court that regarding future mesne profits, the plaintiff has no

cause of action on the date of institution of the suit and it is not

possible for him to plead this cause of action or to value it, or to

pay court fees thereon at the time of institution of the suit.

Therefore, in all the three judgments of this Court and the

Supreme Court, it was consistently held that, as there was no

cause of action for the plaintiff, to claim future mesne profits, the

Court by exercising discretionary power, direct an enquiry for

determination of future mesne profits from the date of suit in the

present case. Taking advantage of these principles, the Court

below concluded that, ordering of an enquiry for determination of

future mesne profits is not illegal and on the basis of the principles
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laid down in all the three judgments and concluded that, it is a fit

case to appoint an Advocate Commissioner to determine the mesne

profits.

Whereas, the contention of the learned counsel for the

petitioner is that, when a preliminary decree is passed which has

attained finality, due to decision of the Supreme Court, ordering

determination of mesne profits by appointing an Advocate

Commissioner is nothing but re-opening of a preliminary decree

and the same cannot be ordered.

Learned counsel for the petitioner placed reliance on the

judgment reported in Venkat Reddy and others v. Petti Reddy9,

wherein, the Larger Bench of the Supreme Court while deciding a

question relating to preliminary decree in paragraph 7 held that, a

preliminary decree passed, whether it is in a mortgage suit or a

partition suit, is not a tentative decree but must, in so far as the

matters dealt with by it are concerned, be regarded as conclusive.

No doubt, in suits which contemplate the making of two decrees –

a preliminary decree and a final decree – the decree which would

be executable would be the final decree. But the finality of a decree

or a decision does not necessarily depend upon its being

executable would be the final decree. The legislature in its wisdom

has thought that suits of certain types should be decided in stages

and though the suit in such cases can be regarded as fully and

completely decided only after a final decree is made the decision of

the court arrived at the earlier stage also has a finality attached to

it. It would be relevant to refer to Section 97 of the C.P.C which

provides that where a party aggrieved by a preliminary decree does

9
AIR 1963 SC 992
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19

not appeal from it, he is precluded from disputing its correctness

in any appeal which may be preferred from the final decree. This

provision thus clearly indicates that as to the maters covered by it,

a preliminary decree is regarded as embodying the final decision of

the court passing that decree.

In Muthangi Ayyanna v. Muthangi Jaggarao and others10,

the Full Bench of Apex Court in paragraph 5 of the judgment held

that, a final decree cannot be amended or go behind the

preliminary decree on a matter determined by the preliminary

decree. Further, as per Clause 5 of the preliminary decree passed

by the High Court, on appeal from the preliminary decree, had

modified the decree passed by the Trial Court, which has become

final, it cannot be disturbed.

A similar view was taken by the Division Bench of Madhya

Pradesh in Devisahai and othes v. Sardar Govinrao Mahadik

and others11, by placing reliance on the judgment of the Supreme

Court in Venkat Reddy and others v. Petti Reddy (referred

supra) held that, a preliminary decree passed in a mortgage suit or

partition suit is not a tentative decree, but should be regarded as

conclusive in respect of the matters dealt with in the preliminary

decree.

In Neelam Chittemma and others v. Tirlangi Appa and

others12, this Court while placing reliance on the judgments of he

Supreme Court in Chittooori Subbanna v. Kudappa Subbanna13,

Venkat Reddy and others v. Petti Reddy (referred supra) and

10
AIR 1977 SC 292
11
AIR 1992 MP 13
12
2014 (3) ALT 452
13
AIR 1965 SC 1325
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20

Muthangi Ayyanna v. Muthangi Jaggarao and others (referred

supra) held as follows:

“The learned counsel for the appellants submitted that the

trial court committed grave error in passing final decree. To
substantiate the contention, he has drawn my attention to
the decision of the Supreme Court in Chittoori Subbanna
v. Kudappa Subbanna (AIR 1965 SC 1325). In para - 26,
the apex Court observed as follows.

It is urged for the decree-holder respondent that the trial

Court, when passing the final decree, could not have
ignored what had been decreed under the preliminary
decree as no appeal against the preliminary decree had
been preferred and section 97, C.P.C., provided that where
any party aggrieved by a preliminary decree passed after
the commencement of the Code did not appeal from such
decree, it would be precluded from disputing its correctness
in any appeal which might be preferred from the final
decree. The object of section 97 is that questions which had
been urged by the parties and decided by the Court at the
stage of the preliminary decree will not be open for re-
agitation at the stage of the preparation of the final decree
and would be taken as finally decided if no appeal had been
preferred against the preliminary decree.”

In view of the long line of perspective pronouncements

referred supra, when a preliminary decree is passed, the Trial

Court or any other Court, cannot go beyond the decree and pass

orders.

Whereas, in the case of mesne profits, the Court below

passed the impugned order by relying on the long line of

judgments in Babburu Basavaya and others v. Babburu

Guravayya and another (referred supra), Simma Krishnamma v.

Nakka Latchumanaidu and others (referred supra) and

Gopalakrishna Pillai and others v. Meenakshi Ayal and others

(referred supra). This Court and Apex Court made it clear, this

Court can grant future profits even if no preliminary decree is

passed.

Though there is a little conflict between the legal position

referred above, but in normal course, the law laid down by the
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21

Apex Court is that, unless the Court cannot travel beyond the

pleadings for grant of relief.

In view of the little controversy, with regard to grant of relief

of appointing an Advocate Commissioner to determine mesne

profits, the pleadings in the plaint are of vital importance to decide

the entitlement. To grant relief of mesne profits, the concept of

mesne profits is to be adverted.

The concept of ‘mesne profits’ has its origin in the medieval

period. Under the feudal system, the King owned all land. The King

would let out a part of these lands to his barons on the condition

that they will provide him with soldiers whenever he wanted to

raise an army. Soon this turned into a nice way of raising money

by charging rent for the land. In turn, the barons would let out

part of the land to tenant farmers and they would pay rent –

usually in kind, by providing livestock or crops – for the privilege of

being able to keep some of the produce for themselves. Thus the

concept of chains of tenancies was born. The person to whom they

paid rent became known as the ‘mesne landlord’. The word meant

‘intermediate’ in old French. The phrase was originally ‘mesne

rents and profits’ meaning all the rent or profit from the land that

could be extracted by the intermediate landlord. In the modern

time the term ‘mesne profits’ means the claim that a lawful owner

of the property has against the unlawful possessor of the property.

As regards nature of mesne profits, All the legal system,

which governs the civilized nations of the world agree upon the

basic principal of natural justice to obtain reparation for wrongs or

infringement of legal rights. In other words, the law of nature gives

primary right to a compensation for injuries. Mesne profit is one

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22

such right to compensation granted against injuria i.e. breach of

legal right. Mesne profit is a positive right available against

infringement of private legal right.

Legal position relating to Mesne profits may be defined as the

profits or other pecuniary benefits, which one who disposes the

true owner receives between dis-seizin and the restoration of

possession. Therefore mesne profits corresponds to the profits

which the person in wrongful possession is receiving or might

receive with due diligence for the wrongful occupation of property.

Mesne profits are defined under Section 2(12) of Code of Civil

Procedure. Section 2 (12) of the Code of Civil Procedure provides

that: “Mesne profits” of property means those profits which the

person in wrongful possession of such property actually received or

might with the ordinary diligence have received therefrom, together

with interest on such profits but shall not include profits due to

improvement made by the person in wrongful possession.

From the analysis of the above stated definition on can conclude

that “Mesne profits” are the profits, which the person in wrongful

possession actually earned or might have earned with ordinary

diligence. According to Section 2(12) a person becomes entitled to

mesne profits only when he has right to obtain possession but

another person whose occupation is unauthorized or wrongful

keeps him deprived of that possession. The first and foremost

condition for awarding mesne profits is wrongful possession of the

occupant of the property. The section further provides that Mesne

profits also include interest on such profits. However it explicitly

excludes any profit earned due to improvement in the property

made by the person in wrongful possession of such property.

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The main object of awarding mesne profit is to compensate

the actual owner of the property for all the loss he has suffered. In

other words the object of awarding a decree of mesne profits is to

compensate the person who has been kept out of possession and

deprived of enjoyment of his property even though he was entitled

to possession of property, and the word compensation would

embrace in its purview any actual loss suffered by a lawful owner.

The idea of granting mesne profits as compensation normally

connotes reparation for some past wrongful act i.e. wrongful

possession.

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 all 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

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24

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.

The Madras High Court in D. Nataraja Achari v. Balambal

Ammal14, by relying on the judgments of the Supreme Court

referred above, observed as follows:

“5. 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
14
(1979) 2 MLJ 234
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25

this Court in the decision reported in Basavayya v.

Guruvayya , 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. 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 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. 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 ,
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
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26

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 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.”

Thus, from the view taken by the Madras High Court, in the

said judgment, in a suit for partition, Order XX Rule 18 C.P.C is

applicable to claim both past and future profits, but not mesne

profits. The same view was expressed by the Madras High Court in

B.N. Thiayagarajan v. B.N. Sundaavelu15 and A.R. Veerappa

Goundar v. Sengoda Goundar16, the Court after referring to

certain earlier decisions stated as follows:

(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

15
AIR 1972 Mad 216
16
(1975) 1 MLJ 53
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27

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.

In Bhagwati Prasad v. Shri Chandramauli17 the Supreme

Court while dealing with regard to the plaintiff's claim for past rent

and future mesne profits observed as follows:

17
AIR 1966 SC 735
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“We see no reason to interfere with the decree passed by the

High Court. But we do not see how the High Court's decree
in relation to future mesne profits can be sustained.
Because, once it is held that the plaintiff is entitled to eject
the defendant, it follows that the from the date of the decree
granting the relief of ejectment to the plaintiff, the
defendant who remains in possession of the property
despite the decree, must pay mesne profits or damages for
use and occupation of the said property until it is delivered
to the plaintiff. A decree for ejectment in such a case must
be accompanied by a direction for payment of the future
mesne profits or damages. And therefore the plaintiff is
entitled to future mesne profits at the rate of Rs. 300 per
month.

Generally, Court can award Mesne Profits against the

following persons as per Section 2 Sub-Section 12 of the Code of

Civil Procedure,1908.

1. Tenants in a suit for recovery of possession. (Anderson

Wright Vs. Amar Nath Roy, AIR 2005 SC 2457)

2. Persons against whom a decree for possession of immovabale

property was passed. ( Gopal Krishna Pillai Vs. Meenakshi

Ayal, AIR 1967 SC 155)

3. Trespass (Sita Ram Lakshmanji Vs. Dipnarain Mandal, AIR

1977 SC 1870)

4. Mortgagors in possession of mortgaged property against

whom a decree for foreclosure was passed. (Shiv Kumar

Sharma Vs. Santhosh Kumari, AIR 2008 SC 171)

5. Mortgagors in possession of property after a decree for

redemption was passed. (Prabhakaran Vs M. Azhagiri Pillai,

AIR 2006 SC 1567).

The Madras High Court in Nataraja Achari v. Balambal

Ammal18 pointed out that there are three different types of cases

in which question of rights of profits arise, which are as follows:

18
AIR 1980 Mad 222
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29

1. Suit 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. A suit 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 joint Hindu family with

a claim for an account from the manager.

The Madras High Court further delineated that , “In the first

case, the possession of the defendant not being lawful, the plaintiff

is entitled to recover mesne profits such profits being really in the

nature of damages. In second case the possession and receipt of

profits by the defendant not being wrongful the plaintiffs remedy is

to have an account of such profits making all just allowance in the

favour of the collecting tenant in common. In the third case the

plaintiff must take the joint family property as it exists at the date

of the demand for partition and is not entitled to open up past

account 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. The plaintiff would

however, be in the position of the tenant in common from the date

of severance in status and his right would have to be worked out

on that basis.

If, these principles are applied to the present facts of the

case, in the present suit, which is a suit by a member of the Hindu

Joint Family, Clause (3) will apply. Hence, a member of the Hindu
 MSM,J
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30

Joint family in a suit for partition is entitled to claim both past and

future profits against the Manager for rendition of account and

recovery. But, the question of claiming mesne profits i.e. profits

payable by person who is in wrongful possession, as defined under

Section 2 of Clause (12), in a suit does not arise, more particularly,

when the plaintiffs pleaded that they are in joint possession and

enjoyment of the property either actual or constructive and also

paid Court Fee under Section 34(2) of APCF & SV Act, since the

joint possession of the other member of the joint family or a

coparcenery can only become illegal. As such, in a suit for

partition, at the stage of preliminary decree, the items of property

which are liable for partition or pending for ascertainment initially

by an order under Order XX Rule 18(2) C.P.C, a preliminary decree

is passed together with direction for account to be taken.

Therefore, there is a lot of distinction between profits and

mesne profits, in view of the law discussed above. For grant of

mesne profits, the pleadings in the plaint plays vital role and to

find out whether the respondents are in wrongful possession or the

plaintiffs and the defendants are in joint possession or not. But,

the plaint is not placed before this Court to verify and to conclude

that the plaintiffs claim in the original suit was that the plaintiffs

and defendants were in joint possession and enjoyment of the

property and paid requisite Court Fee under Section 34(2) of the

APCF & SV Act or not.

In the judgment in O.S.No.933 of 1981 dated 24.04.1989,

few facts of the case are referred and in paragraph 3 of the

judgment, it is averred that, after the death of Ramachandra

Reddy, both the parties continued to be living together and

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31

enjoying the usufruct of the entire property together. It is joint

family property and parties are in joint possession. Thus, it means

that the possession of the respondents is not wrongful or

unauthorized to enable these petitioners to claim mesne profits.

But, at best, the plaintiff can claim rendition of account of the

profits received from the property by the Manager of the joint

family, but cannot claim mesne profits. Therefore, it is relevant to

advert to the pleadings and decide whether the plaintiff pleaded

the joint possession of the property belonging to the Hindu Joint

Family or pleadings that the defendants are in wrongful or

unauthorized possession and decide whether the plaintiffs are

entitled for rendition of account of profits against the Manager or

mesne profits from the defendants basing on the plea and the

Court fee paid on the plaint, since they are not available, it is

difficult to decide this issue. Therefore, this Court has no option

except to set-aside the finding recorded by the Trial Court, while

remanding the same to the Trial Court by exercising power under

Order XLI Rule 23(a) C.P.C, with a direction to verify the

allegations made in the complaint the admission, if any, with

regard to joint possession of both the plaintiffs and defendants and

determine whether the petitioners herein and the other

respondents are in wrongful possession or in joint legal possession

and decide the application afresh, in view of the discussion in the

paragraphs referred supra.

Accordingly, the point is answered.

P O I N T NO.2:

The contention of the learned counsel for the petitioner is

that, Item Nos. 1 to 6 of ‘A’ schedule property is not liable for

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32

partition and similarly Item Nos.7 to 14 of ‘A’ schedule property is

also not available for partition. But, the Trial Court held that Item

Nos. 1 to 6 of ‘A’ Schedule Property and Item Nos. 7 to 14 of Plaint

‘A’ Schedule are liable for partition and the plaintiffs are also

entitled to claim share in ‘B’ and ‘C’ schedule properties.

But, in C.C.A.No.94 of 1989, this Court made certain

observations and ultimately concluded as follows:

“From the fact that this property was purchased by

Ramachandra Reddy and Anantharam Reddy in the name
of their sons shortly after their partition and the evidence
adduced by the 1st defendant that he purchased with the
money given by his grand mother is not reliable and the
other circumstances referred to by me i.e. recitals in the
Will Ex.A.11 of Anantharam Reddy, the fact that the 1st
plaintiff was made as a party to the agreement of sale, and
the entries in the Ex.A.6 pahani, I agree with the contention
of the learned counsel for the plaintiff that half in this
property was purchased by Ramachandra Reddy in the
name of his minor son, the 1st defendant and therefore, it
becomes the joint family property.

At the same time, it was agreed by the learned counsel for

the appellant therein that the property covered by Item Nos. 9 to

14 of plaint ‘A’ schedule is no longer available for partition, as an

extent of 44,000 sq.mts out of the said property is vested in the

government as excess land and the remaining extent of 11,000

sq.mts was sold by the defendants by virtue of the exemption

granted by the government under the Urban Land (Ceiling and

Regulation) Act, 1976 and the plaintiffs 1/8th share was deposited

in the Court. Consequently, the plaintiff is entitled to claim the

amount deposited towards the share of the plaintiff.

This Court also discussed in C.C.A.No.94 of 1989 about Item

Nos.1 to 6 of ‘A’ Schedule Property and cross objections filed in the

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33

appeal. It is averred that Item Nos. 1 to 6 of Plaint ‘A’ schedule are

Inam lands vested in the government and the Inams were

abolished after the advent of Andhra Pradesh (Telangana Area)

Abolition of Inams Act, 1955, in view of Section 37 of the Andhra

Pradesh (Telangana Area) Tenancy and Agricultural Lands Act,

1950, and concluded that the said items were not liable for

partition, as they are not available and vested on the government

in terms of Section 37 of the Andhra Pradesh (Telangana Area)

Tenancy and Agricultural Lands Act. This Court further held that

the civil court has no jurisdiction in respect of Inam lands to pass

a decree under partition and dismissed cross objections filed by

the plaintiffs. As regards the division of shares, this Court held

that the parties are entitled to have their respective shares in the

share of Ramachandra Reddy, which is liable for partition as

stated above in the following proportions.

Plaintiff No.1 Plaintiff No.2 Defendant No.1 Defendant No.2 Defendant No.3

1/8th 1/4th 1/4th 1/8th 1/4th

Accordingly, this Court modified the preliminary decree

passed by the Court below and dismissed the appeal, subject to

the modifications of the shares and observations made regarding

Item Nos. 9 to 14 of ‘A’ & ‘B’ schedule properties of the plaint.

The judgment of this Court in C.C.A.No.94 of 1989 dated

04.09.1992 is assailed in LPA No.3/1993, CCCA No.25 & 30 of

1998, W.P.No.16843/1992 and W.P. No.5404/1995 before this

Court and the Division Bench of this Court upheld the judgment

passed by the learned Single Judge of this Court in C.C.A.No.94 of

1989 dated 04.09.1992.

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But, in Civil Appeal No.3632 of 2008, the Supreme Court

reversed the finding, and held in paragraph 17 as follows:

“17. In the result, we allow this appeal and set aside the
judgment and order passed by the Courts below to the extent the
same hold that inam lands granted in favour of the respondent
no.1 upon abolition of the inam under the Andhra Pradesh
(Telangana Area) Abolition of Inams Act, 1955, are not partible
among the heirs left behind by Shri Ramachandra Reddy. The
suit filed by the appellants shall resultantly stand decreed even
qua the inam land in the same ratio as has been determined by
the High Court by the impugned judgment in regard to other
items of properties. No costs.”

Thus, the judgment of the Trial Court in O.S.No.933 of 1981

dated 24.04.1989 and this Court are merged with the judgement of

Supreme Court in Civil Appeal No.3632 of 2008 dated 23.09.2014,

by applying the Doctrine of Merger and the preliminary decree

passed by the Supreme Court is the basis for claiming right.

The Doctrine of Merger is neither a doctrine of constitutional

law nor a doctrine statutorily recognised. It is a common law

doctrine founded on principles of propriety in the hierarchy of

justice delivery system. On more occasions than one this Court

had an opportunity of dealing with the doctrine of merger. It would

be advisable to trace and set out the judicial opinion of this Court

as it has progressed through the times.

In Commissioner of Income-tax, Bombay v. M/s Amritlal

Bhogilal and Co19 Apex Court held that, there can be no doubt

that, if an appeal is provided against an order passed by a

tribunal, the decision of the appellate authority is the operative

decision in law. If the appellate authority modifies or reverses the

decision of the tribunal, it is obvious that it is the appellate

decision that is effective and can be enforced. In law the position

19
AIR 1958 SC 868
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would be just the same even if the appellate decision merely

confirms the decision of the tribunal. As a result of the

confirmation or affirmance of the decision of the tribunal by the

appellate authority the original decision merges in the appellate

decision and it is the appellate decision alone which subsists and

is operative and capable of enforcement.

So, based on the principle of Doctrine of Merger, the decision

of Appellate Authority is alone effective and executable. Further,

the Supreme Court after reviewing the entire law based on the

principle of Doctrine of Merger and also referring the earlier

judgments of the Supreme Court from U.J.S. Chopra v. State of

Bombay20 to Gopalbandhu Biswal Vs. Krishna Chandra

Mohanty & Ors21, arrived at the following conclusions:

(i) Where an appeal or revision is provided against an order

passed by a court, tribunal or any other authority before

superior forum and such superior forum modifies, reverses

or affirms the decision put in issue before it, the decision by

the subordinate forum merges in the decision by the

superior forum and it is the latter which subsists, remains

operative and is capable of enforcement in the eye of law.

ii) The jurisdiction conferred by Article 136 of the

Constitution is divisible into two stages. First stage is upto

the disposal of prayer for special leave to file an appeal. The

second stage commences if and when the leave to appeal is

granted and special leave petition is converted into an

appeal.

20
AIR 1955 SC 633
21
1998 (4) SCC 447
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(iii) Doctrine of merger is not a doctrine of universal or

unlimite application. It will depend on the nature of

jurisdiction exercised by the superior forum and the content

or subject-matter of challenge laid or capable of being laid

shall be determinative of the applicability of merger. The

superior jurisdiction should be capable of reversing,

modifying or affirming the order put in issue before it. Under

Article 136 of the Constitution the Supreme Court may

reverse, modify or affirm the judgment-decree or order

appealed against while exercising its appellate jurisdiction

and not while exercising the discretionary jurisdiction

disposing of petition for special leave to appeal. The doctrine

of merger can therefore be applied to the former and not to

the latter.

iv) An order refusing special leave to appeal may be a non-

speaking order or a speaking one. In either case it does not

attract the doctrine of merger. An order refusing special leave

to appeal does not stand substituted in place of the order

under challenge. All that it means is that the Court was not

inclined to exercise its discretion so as to allow the appeal

being filed.

v) If the order refusing leave to appeal is a speaking order,

i.e. gives reasons for refusing the grant of leave, then the

order has two implications. Firstly, the statement of law

contained in the order is a declaration of law by the Supreme

Court within the meaning of Article 141 of the Constitution.

Secondly, other than the declaration of law, whatever is

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stated in the order are the findings recorded by the Supreme

Court which would bind the parties thereto and also the

court, tribunal or authority in any proceedings subsequent

thereto by way of judicial discipline, the Supreme Court

being the apex court of the country. But, this does not

amount to saying that the order of the court, tribunal or

authority below has stood merged in the order of the

Supreme Court rejecting special leave petition or that the

order of the Supreme Court is the only order binding as res

judicata in subsequent proceedings between the parties.

(vi) Once leave to appeal has been granted and appellate

jurisdiction of Supreme Court has been invoked the order

passed in appeal would attract the doctrine of merger; the

order may be of reversal, modification or merely affirmation.

(vii) On an appeal having been preferred or a petition seeking

leave to appeal having been converted into an appeal before

Supreme Court the jurisdiction of High Court to entertain a

revew petition is lost thereafter as provided by sub-rule (1) of

Rule (1) of Order 47 of the C.P.C.

In view of the conclusions arrived by the Apex Court and by

applying the principles to the present facts of the case, the

judgment of the Supreme Court in Civil Appeal No.3632 of 2008

dated 23.09.2014 is the only effective decision of the Court to

claim reliefs claimed in the petition and the judgment of the Trial

Court in O.S.No.933 of 1981 and judgment of the High Court

passed by the learned Single Judge in C.C.A.No.94 of 1989 dated

04.09.1992 and judgment of the Division Bench of this Court in

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LPA No.3/1993, CCCA No.25 & 30 of 1998, W.P.No.16843/1992

and W.P. No.5404/1995, would merge in the judgment of the

Supreme Court in Civil Appeal No.3632 of 2008 dated 23.09.2014.

Therefore, the basis for the claims is decision or judgment of the

Supreme Court. In view of the judgment of the Supreme Court in

Civil Appeal No.3632 of 2008 dated 23.09.2014, the properties

available for partition are Item Nos.1 to 8 of ‘A’ schedule and the

amount deposited towards share of the plaintiff and other items

properties shown in ‘A’ & ‘B’ schedule properties. Taking into

consideration of the decrees passed by the Trial Court and High

Court, the Supreme Court concluded that the property available

for partition.

Even otherwise, the petition was filed for appointment of

Advocate Commissioner to divide the property by metes & bounds

as per good and bad qualities. Whether the property is readily

available on ground or not is a question which needs no

consideration at this stage. If, the Commissioner visits and found

no such property available, then the Court can pass appropriate

order. But, when part of the property is agricultural land,

assessable to tax, the Advocate Commissioner cannot be appointed

for division of the property in view of Section 54 of C.P.C.

Therefore, an Advocate Commissioner cannot be appointed

for division of an agricultural land assessed to tax, but a direction

is to be issued to the District Collector for division of agricultural

land to partition the property by nominating any of his

subordinate. But, appointment of Advocate Commissioner for

division of the agricultural land which is assessed to tax is an

illegality, in view of law declared by Apex Court in Khemchand

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Shankar Choudhary v. Vishnu Hari Patil And Others22.

Therefore, the Trial Court is directed to follow the procedure

contemplated under Section 54 C.P.C and appoint an Advocate

Commissioner for division of the property other than agricultural

land to divide by metes and bounds, as per good and bad quality,

while following the procedure for decision of agricultural land

prescribed by Section 54 of C.P.C. The order of the Trial Court is

modified to the extent stated above.

Accordingly, the point is answered.

P O I N T NO.3

I.A.No.305 of 2015 was filed for passing a final decree after

deciding plaint schedule Plaint ‘A’, ‘B’ & ‘C’ Schedule properties in

O.S.No.933 of 1981. At this stage, no order can be passed on

I.A.No.305 of 2015, as passing of a final decree would arise only

after dividing the property by metes and bounds, either by

appointing an Advocate Commissioner for properties other than

agricultural land which is assessed to revenue and by following the

procedure under Section 54 C.P.C, addressing letter to the

Collector to nominate any of his subordinate to divide the

agricultural land assessed to tax. Therefore, passing an order at

this stage in I.A.No.305 of 2015 is an illegality committed by the

Court below. At best, the Court below, if, concludes that the

petitioner is entitled for mesne profits or relief of accounting of the

income from the properties by the Manager of a Hindu

Coparcenary or a Joint Family or rendition of the income received

by the Manager of the Hindu Family or a coparcenary and after

receiving a report from the Commissioner appointed for division of

22
1983 AIR 124
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the property. But, at this stage, deciding an application and

passing the impugned order is an error committed by the Court

below and the same is liable to be set-aside. Accordingly, the order

passed by the Court below in I.A.No.306 of 2015 is hereby set-

aside while remanding the same to the Trial Court to pass

appropriate order, after deciding I.A.No.304 of 2015. In case the

Commissioner is appointed for ascertainment of mesne profits or

income for rendition of the account of income received by the

Manager of the Hindu Joint Family or coparcenary after receipt of

report from the Commissioner, appointed by this Court in

I.A.No.305 of 2015 and pass appropriate order in accordance with

law.

Accordingly, the point is answered.

In view of my foregoing discussion, the order in I.A.No.305 of

2015 is modified, as indicated in Point No.2. The order passed by

the Trial Court in I.A.No.304 of 2015 is set-aside while directing

the Court below to restore the same to the original number in

interlocutory application’s register and decide afresh after affording

reasonable opportunity, as per the directions of this Court in Point

No.1. Further, the order in I.A.No.306 of 2015 is set-aside while

directing the Trial Court to pass appropriate order after receipt of

reports from the Commissioner appointed in I.A.No.305 of 2015

and receipt of report from the Commissioner appointed in

I.A.No.304 of 2015, subject to decision on its remand.

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With the above directions, all the civil revision petitions are

disposed of.

Consequently, miscellaneous applications pending if any,

shall also stand closed. No costs.

_________________________________________
JUSTICE M. SATYANARAYANA MURTHY

Date: 02.05.2018
SP