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Mesne Profits
Mesne Profits
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
Hyderabad.
Commissioner to divide the Plaint ‘A’, ‘B’ & ‘C’ Schedule properties
second wife Manemma, the said Ramchandra Reddy had one son,
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
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
No.2 were also brought on record during the pendency of the LPA
proceedings till date are not disputed. However, one Sri Subbagari
extent required for this case, the Plaint 'A' Schedule properties
brothers have half share each. The half share which fell to Sri Late
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Municipal No.2-2-1010. All the Plaint 'A', 'B' and 'C' schedule
Hyderabad.
properties.
and also modified the decree passed by this court so far as the
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'
passed the Decree in the said Civil Appeal and as seen from the
“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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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
shares:
been confirmed for partition by the Supreme Court. Item Nos.7 and
and this Court confirmed that, Plaint ‘B’ and ‘C’ Schedule
Thus plaintiff No.1 and Defendant No.2 did not dispute their
fact that the share value of the property of Item Nos.9-14 of Plaint
lying with the Court. Hence, I.A.No.304 2015 was filed by the
Commissioner to divide the Plaint ‘A’, ‘B’ & ‘C’ Schedule properties
share out of the said amount, based on good and bad quality with
observations of the Courts i.e from Trial Court to Apex Court, while
intentionally not disclosed the same for the reasons best known to
not available for partition. It is also contended that Item Nos.7 & 8
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the respondent is not only incorrect, but also far from truth. The
the value of the property was already deposited into the Court and
called upon the petitioners to put the same to strict proof regarding
14 of Plaint ‘A’ schedule property and that the petitioners are also
Commissioner.
asserted that, no such claim was made either before the Court or
the petitioners are not entitled to claim any relief and prayed for
common order passed in all the three I.As, the first respondent
on various grounds.
revisions are identical in all the petitions. Item Nos. 9 to 14 are the
layout and they are not available for partition. Apart from that,
respondents 1 to 4 is an illegality.
1 to 4.
since no such relief was claimed and granted by the Court below or
Court, Madhya Pradesh and this Court in Venkata Reddi and ors.
1
1963 (2) AnWR 126
2
(1977) 1 SCC 241
3
AIR 1992 MP 13
4
2014 (4) ALD 269
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profits.
into the Court, the property cannot be partitioned at this stage and
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
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
by the Apex Court, this Court cannot exercise its power under
petitions.
5
(34)2005 (3) ALT (Crl.) 125 (SC)
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follows:
1 to 4?
P O I N T NO.1:
Senior Counsel for the petitioner herein is that, the Court below,
Appellate Court and Apex Court did not pass any decree for grant
said purpose.
Property, which are available for partition. Thus, the Trial Court
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preliminary decree. The Trial Court also held that Plaint ‘B’ & ‘C’
out the equities between the parties. Further, the plaint without
The High Court held that Item Nos.1 to 8 are Inam lands and they
LPA Proceedings No.3/1993, this Court held that those Item Nos.1
and held that Item Nos. 1 to 6 of Plaint ‘A’ Schedule Property are
Nos. 1 to 8 of ‘A’ Schedule Property and Plaint ‘B’ & ‘C’ Schedule
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
profits.
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
Court and the Apex Court did not touch the aspect of mesne
fee under Section 34(2) of APCF & SV Act, the plaintiffs and
profits.
and another (referred supra), the Court held that future mense
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
6
AIR 1951 MADRAS 938
7
AIR 1958 AP 520
8
AIR 1967 SC 155
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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
regard to profits.
Apex Court that regarding future mesne profits, the plaintiff has no
cause of action for the plaintiff, to claim future mesne profits, the
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
profits.
and though the suit in such cases can be regarded as fully and
the court arrived at the earlier stage also has a finality attached to
9
AIR 1963 SC 992
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in any appeal which may be preferred from the final decree. This
modified the decree passed by the Trial Court, which has become
decree.
10
AIR 1977 SC 292
11
AIR 1992 MP 13
12
2014 (3) ALT 452
13
AIR 1965 SC 1325
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Court or any other Court, cannot go beyond the decree and pass
orders.
(referred supra). This Court and Apex Court made it clear, this
passed.
referred above, but in normal course, the law laid down by the
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Apex Court is that, unless the Court cannot travel beyond the
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
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 –
being able to keep some of the produce for themselves. Thus the
paid rent became known as the ‘mesne landlord’. The word meant
rents and profits’ meaning all the rent or profit from the land that
time the term ‘mesne profits’ means the claim that a lawful owner
which governs the civilized nations of the world agree upon the
with interest on such profits but shall not include profits due to
that “Mesne profits” are the profits, which the person in wrongful
the actual owner of the property for all the loss he has suffered. In
compensate the person who has been kept out of possession and
possession.
together with a claim for past or past and future mesne profits. (2)
others with a claim for account of past or past and future profits.
claim for an account from the manager. In the first case, the
(12) of the Civil Procedure Code, such profits being really in the
enjoyment of the profit, except where the manager has been guilty
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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Thus, from the view taken by the Madras High Court, in the
applicable to claim both past and future profits, but not mesne
profits. The same view was expressed by the Madras High Court in
a direction for enquiry into the future profits, that part of the
15
AIR 1972 Mad 216
16
(1975) 1 MLJ 53
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to enquiry into the future mesne profits and the decree has
enquiry; and
and the preliminary decree does not provide for such relief,
the relief for mesne profits can be claimed even for the first
the final decree is passed before the enquiry into the mesne
Court while dealing with regard to the plaintiff's claim for past rent
17
AIR 1966 SC 735
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Civil Procedure,1908.
1977 SC 1870)
Ammal18 pointed out that there are three different types of cases
18
AIR 1980 Mad 222
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future profits.
The Madras High Court further delineated that , “In the first
case, the possession of the defendant not being lawful, the plaintiff
plaintiff must take the joint family property as it exists at the date
enjoyment of the profit, except where the manager has been guilty
on that basis.
Joint Family, Clause (3) will apply. Hence, a member of the Hindu
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Joint family in a suit for partition is entitled to claim both past and
when the plaintiffs pleaded that they are in joint possession and
paid Court Fee under Section 34(2) of APCF & SV Act, since the
mesne profits, the pleadings in the plaint plays vital role and to
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
property and paid requisite Court Fee under Section 34(2) of the
mesne profits from the defendants basing on the plea and the
Court fee paid on the plaint, since they are not available, it is
P O I N T NO.2:
also not available for partition. But, the Trial Court held that Item
‘A’ Schedule are liable for partition and the plaintiffs are also
Regulation) Act, 1976 and the plaintiffs 1/8th share was deposited
1950, and concluded that the said items were not liable for
Tenancy and Agricultural Lands Act. This Court further held that
that the parties are entitled to have their respective shares in the
Plaintiff No.1 Plaintiff No.2 Defendant No.1 Defendant No.2 Defendant No.3
Court and the Division Bench of this Court upheld the judgment
“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.”
dated 24.04.1989 and this Court are merged with the judgement of
be advisable to trace and set out the judicial opinion of this Court
Bhogilal and Co19 Apex Court held that, there can be no doubt
19
AIR 1958 SC 868
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the Supreme Court after reviewing the entire law based on the
appeal.
20
AIR 1955 SC 633
21
1998 (4) SCC 447
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the latter.
under challenge. All that it means is that the Court was not
being filed.
i.e. gives reasons for refusing the grant of leave, then the
Court which would bind the parties thereto and also the
being the apex court of the country. But, this does not
claim reliefs claimed in the petition and the judgment of the Trial
available for partition are Item Nos.1 to 8 of ‘A’ schedule and the
for partition.
land to divide by metes and bounds, as per good and bad quality,
P O I N T NO.3
deciding plaint schedule Plaint ‘A’, ‘B’ & ‘C’ Schedule properties in
Court below. At best, the Court below, if, concludes that the
law.
With the above directions, all the civil revision petitions are
disposed of.
_________________________________________
JUSTICE M. SATYANARAYANA MURTHY
Date: 02.05.2018
SP