Madras High Court
Avudaithangammal vs Petchimuthupandia Thevar (Died) And ... on 24 November, 1992
Equivalent citations: (1993)1MLJ439
JUDGMENT Abdul Hadi, J.
1. These two second appeals are by the plaintiff in O.S. No. 4 of 1969 on the file of the District Munsif, Tenkasi. In the said suit, the plaintiff got the decree for partition and separate possession of her half share and for 'mesne profits' thereof. The said decree was confirmed in the first appeal A.S. No. 177 of 1970 on the file of the Sub Court, Tirunelveli and also by this Court in S.A. No. 14 of 1973. Subsequently, the plaintiff filed the present interlocutory applications out of which these second appeals have arisen. In I.A. No. 1443 of 1973 the plaintiff claimed mesne profits of Rs. 7,037.50 with reference to nine crops, i.e. from Pishanam 1969 to Pishanam 1973. The next I.A. No. 264 of 1979 was filed claiming mesne profits of Rs. 40,517.30 for 10 crops during the subsequent period, i.e. from Kar 1973 to Kar 1978. The trial court in the former interlocutory application granted a decree only for Rs. 4,000. In the latter interlocutory application, the decree by the trial court was only for Rs. 2,800. Aggrieved by the said two decrees the plaintiff preferred two appeals A.S. No. 78 of 1980 against I.A. No. 264 of 1979 and A.S. No. 79 of 1980 against I.A. No. 1443 of 1973.
2. The lower appellate court heard both the appeals together and held that 'mesne profits' as such cannot be claimed in a suit for partition and on that ground it held that the appeals were not maintainable. However, on the ground that there was no cross-objection by the defendants, the lower appellate court simply dismissed the appeals. Hence, the present two second appeals. S.A. No. 685 of 1982 is against A.S. No. 78 of 1980 and S.A. No. 686 of 1982 is against A.S. No. 79 of 1980.
3. The learned Counsel for the appellant argues that the dismissal of the first appeals by the lower appellate court is totally erroneous. First of all, he submits that there is a decree for grant of 'mesne profits' confirmed by both the appellate courts. Further, according to him the defendants have not taken any plea that the above said appeals AS. Nos. 78 and 79 of 1980 are not maintainable. He submits that in such a situation, the lower appellate court in dealing with the said appeals against the aforesaid interlocutory applications could not have held that no mesne profits could be claimed and the appeals were hence not maintainable. In this respect, the learned Counsel for the respondents could not argue anything contra. No doubt, the learned Counsel for the appellant even maintains that on the peculiar facts of the present case the profits claimed are only 'mesne profits' and that even assuming the same are not really 'mesne profits', but only loosely worded so, the lower appellate court cannot on that ground reject the said appeals, but, at least treating the said interlocutory applications as one for accounting regarding the profits, should have accordingly decided the said appeals therefrom on merits. He also cited authorities on the said aspect. This submission of the learned Counsel for the appellant is correct. I, therefore, hold that the said appeals are maintainable.
4. Therefore, I set aside the judgment and decree of the lower appellate court in A.S. Nos. 78 and 79 of 1980 and direct the lower appellate court to rehear the respective appeals, preferably within a short time of three months. The second appeals are allowed. No costs.