Delhi High Court
Shri Om Pratap Soni vs Shri Rana Pratap Soni on 23 February, 2006
Equivalent citations: 128 (2006) DLT 410
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
IA No. 5013/2005 (under Order 14 Rule 5 CPC)
1. This application has been filed by the defendant seeking framing of an additional issue as under:
To what amount the plaintiff is liable to pay to the defendant for use and occupation of the suit premises from the date of filing of the suit.
2. The plaintiff has filed a suit for partition in respect of property No. 180, Jor Bagh, New Delhi. The stand which has been taken by the defendant is that the defendant is the sole owner of the property though it was purchased in the name of a partnership firm as the funds flowed from the defendant. Issues were framed on 17.2.2005.
3. Learned counsel for the applicant/defendant contends that the provisions of Order 20 Rule 12 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) would apply to the present case if read together with Order 20 Rule 18 of the said Code. Rule 12 refers to a decree of possession and mesne profits and is made applicable where a suit is filed for the recovery of possession of immovable property and for rent and mesne profits. It is in such a case that a Court may pass a decree for the rents which have accrued on the property during the period prior to the institution of the suit and directing an inquiry as to such rent or for future rent and mesne profits. Rule 18 deals with the decree in the suit for partition of property or separate possession of a share therein.
4. In support of his plea learned counsel for the defendant referred to the judgment of the Apex Court in Gopalakrishna Pillai and Ors. v. Meenakshi Aval and Ors. where in para 7 it is observed as under:
7. ...With regard to future mesne profits the plaintiff has no cause of action on the date of the 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. Moreover, he can obtain relief in respect of this future cause of action only in a suit to which the provisions of O.20 R.12 apply. But in a suit to which the provisions of Order 20 Rule 12 apply, the Court has discretionary power to pass a decree directing an enquiry into the future mesne profits, and the Court may grant this general relief, though it is not specifically asked for in the plaint.
5. In my considered view the aforesaid judgment in fact makes is clear that the provisions of Order 20 Rule 12 apply only in a suit of the said category for possession and mesne profits. The present suit is only for partition.
6. It is not disputed that the defendant has not filed any counter claim nor that the parties are in joint possession of the property in question. Learned counsel for the defendant contends that the plaintiff has sued for 50 per cent share in the property while it is the property of the defendant and the defendant is in possession of ground floor only. Thus to the extent the occupation of the plaintiff in the property is there or to the extent more than the share of the plaintiff the defendant is entitled to mesne profits for the same. This plea is advanced on the basis that the plaintiff had permissive user and on claiming partition the defendant terminated such permission. I am unable to accept the plea of the learned counsel for the defendant.
7. Learned counsel for the defendant also sought to refer to the judgment in K. Venkata Subbaiya v. K. Veeraiya and Anr. where the full bench judgment of the Madras High Court in Basavayya v. Guravayya had been referred to. The full bench judgment observed that a tenant-in-common seeks a partition not only of his share of the properties forming the subject matter of the suit but also of his share of the profits accruing from those properties during the pendency of the suit or till he is put in possession of his share. In the present case two parties are in joint possession and suit is filed for partition simplicitor. Defendant has not filed any suit for declaration that the property in question is exclusively owned by him even though the same was bought in the name of the firm or that he is entitled to any damages for the said period of time as a consequence thereof.
8. Learned counsel for the defendant also referred to the judgment of the Madras High Court in D. Nataraja Achari v. Balambal Ammal where once again reference has been made to Order 20 Rule 12 & 18 of the said Code. In para 7 of the said judgment reference has been made to the same full bench judgment of Basavayya case (Supra). The Full Bench observed as under:
It is necessary at the outset to distinguish between three different 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 C.P.C. 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 allowances in favor 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.
9. Learned counsel for the defendant refers to the second nature of case in the aforesaid paragraphs to contend that the present suit is one for partition. However the aforesaid second category is in respect of a suit for partition with the claim of the accounts for the past or past and future profits. There is no such claim before the Court.
10. In view of the nature of the plaint filed by the plaintiff and in the absence of any counter claim by the defendant I am unable to accept the plea of the learned counsel for the defendant.
11. Dismissed.
