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PARTITION SUITS- PRELIMINARY, FINAL DECREES, MESNE PROFITS

AND STATUS OF THIRD PARTY PURCHASER
By:
P. Rahul Ambedkar B.A. LL.B (Hons),
Principal Civil Judge (Junior Division), Dhone.

The process of adjudication in a civil suit reaches its conclusion with the
passing of Judgment and Decree. Section 33 of Code of Civil Procedure (hereinafter
‘CPC’) requires the court to pronounce judgment followed by a decree. Rules 1 to 5
of Order 20 CPC deal with judgment which contains a concise statement of case,
points for determination, decision thereon and reasons for such decision. Rules 6 to
19 deals with decrees. As per the scheme of the code, the decree should follow the
judgment and must agree with it and it must be self-contained and capable of
execution without referring to other documents or pleadings of the parties. 1 In the
words of Stuart C.J., in the case of Ranjith Singh Vs. Illahi Baksh2, “a decree is a
mouthpiece of the suit in its immediate result”.
As per Section 2(2) CPC, decree means the formal expression of an
adjudication which, so far as regards the Court expressing it, conclusively determines
the rights of the parties with regard to all or any of the matters in controversy in the
suit and may be either preliminary or final. As per the explanation to the above
section, a decree is preliminary when further proceedings have to be taken before the
suit can be completely disposed of. It is final when such adjudication completely
disposes of the suit settling all the matters in dispute between the parties. It may be
partly preliminary and partly final.
'Preliminary Decree' is not defined in the CPC. However, a passing reference is
found in section 2 (2) of CPC, i.e., a Decree can be preliminary, final or partly
1 Code of Civil Procedure, by Thakker, C.K., Volume 4, 2009 edition, Eastern Book Company, Lucknow, page No.
188
2 (1883) ILR 5 All 520, as cited in Code of Civil Procedure, by Thakker, C.K., Volume 4, 2009 edition, Eastern Book
Company, Lucknow, page No. 188
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preliminary and partly final. As the very name suggests, a preliminary Decree will not
become final until a final Decree is passed. Therefore, after passing of a preliminary
Decree and until the passing of a final Decree, a suit is said to be pending. For this
reason alone, there is no applicability of the Limitation Act for filing of an application
for passing of final Decree. Upon passing of a preliminary Decree, the rights of the
parties get crystalized but will materialize finally only when the final Decree is
passed, which alone is executable.3

DECREES IN A SUIT FOR PARTITION

In a partition suit the court will issue three kinds of decrees to settle the issue to
rest: preliminary decree, composite decree (partly preliminary & partly final), and
final decree. The purpose of a suit for partition or separation of a share is twofold:
one declaration of plaintiff's share in the suit properties under the preliminary decree,
and the other is division of his share by metes and bounds which would take place
under the final decree. In some cased the property will be put to sale and the proceeds
will be shared among the share holders which can be termed a final decree. In a
partition suit, if the court cannot make a division of property by metes and bounds
forthright without further inquiry, the court will initially pass a preliminary decree. A
preliminary decree for partition identifies the properties to be subjected to partition,
defines and declares the shares/rights of the parties. The prayer relating to actual
division by metes and bounds and allotment is left for being completed under the
final decree proceedings.4
COMPOSITE DECREE IN A SUIT FOR PARTITION
In regard to immovable properties (other than agricultural lands paying land
revenue) - such as buildings, plots etc. or movable properties - where the court can
conveniently and without further enquiry make the division without the assistance of
any Commissioner, or where parties agree upon the manner of division, the court will
pass a composite decree comprising the preliminary decree declaring the rights of
3 https://www.mondaq.com/india/arbitration--dispute-resolution/1235190/preliminary-decree-and-final-decree-in-cpc
4 https://www.lawyersclubindia.com/articles/partition-suit-principles-practices--10449.asp
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several parties and also a final decree dividing the suit properties by metes and
bounds, in one judgment. The composite decree is partly preliminary and partly final.
The decree declares the proportion of shares and divide the property, thereby settling
the partition to rest in one go.5

PRELIMINARY DECREE
Only in certain civil cases, CPC requires for passing of preliminary Decree. Such
suits are as mentioned below:

1. Suits for partition and separate possession; Order 20 Rule 18.

2. Suits for possession and mesne profits; Order 20 Rule 12
3. Suits for Sale of Mortgaged property; Order 34 Rules 4 and 5.
4. Administrative suits; Order 20 Rule 13.
5. Suits for pre-emption; Order 20 Rule 14.,
6. Suits for Dissolution of partnership and rendition of accounts; Order 20 Rule
15
7. Suits for Accounts between a principal and an agent ; Order 20 Rule 16.
8. Suits for foreclosure of mortgage; Order 34 Rules 2 and 3.
9. Suits for redemption of mortgage; Order 34 Rules 7 and 8.
However, the present paper has confined its scope to preliminary decrees in suits for
partition and separate possession. Order 20 rule 18 CPC deals with decree in suit for
partition of property or separate possession of a share therein. There are two decrees
in a suit for partition; a preliminary decree and a final decree. “A preliminary decree
determines and declares the rights of parties and shares of all eligible claimants, final
decree carries out and effects partition by metes and bounds of the property on the
basis of preliminary decree. If an estate is assessed to payment of revenue to the
Government, Collector or his nominee will effect partition. In other cases, however,
Commissioner will effect such partition”.6

5 https://www.lawyersclubindia.com/articles/partition-suit-principles-practices--10449.asp
6 Code of Civil Procedure, by Thakker, C.K., Volume 4, 2009 edition, Eastern Book Company, Lucknow, page No.
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The Hon’ble Supreme Court in Shankar Balwant Lokhande Vs Chandrakanat

Shankar Lokhande reported in AIR 1995 SC 1211, held that where a decree relates to
any immovable property and the partition or separation cannot conveniently be
effected without further inquiry , then the court should pass a preliminary decree
declaring the rights of parties having interest in the property. The court is also
empowered to give such directions as may be required. A preliminary decree in a
partition suit is a step in the suit which continues until the final decree is passed.7
The Apex Court in Venkata Reddy Vs Pethi Reddy reported in AIR 1963 SC
992, 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. 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”.8
The character of decree passed under sub rules (1) and (2) of Order XX Rule
18 is the same. It is true that the decree passed under sub rule (1) of Rule 18 is not
described as preliminary and the decree under sub rule (2) is declared as preliminary,
there is no real difference between the two inasmuch as under both the provisions, the
court determines and declares the rights of parties and under both the sub rules,
partition, separation or division by metes and bounds has to be effected thereafter.
Whereas, under sub rule (1), Collector effects partition, under sub rule (2), it is
Commissioner appointed by the court who undertakes the said exercise.9
7 Code of Civil Procedure, by Thakker, C.K., Volume 4, 2009 edition, Eastern Book Company, Lucknow, page No.
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8 Code of Civil Procedure, by Thakker, C.K., Volume 4, 2009 edition, Eastern Book Company, Lucknow, page No.
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9 Code of Civil Procedure, by Thakker, C.K., Volume 4, 2009 edition, Eastern Book Company, Lucknow, page No.
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Process of partition of estate assessed to payment of revenue

“In regard to estates assessed to payment of revenue to the government
(agricultural land), the court is required to pass only one decree declaring the rights of
several parties interested in the suit property with a direction to the Collector (or his
subordinate) to effect actual partition or separation in accordance with the declaration
made by the court in regard to the shares of various parties and deliver the respective
portions to them, in accordance with Section 54 of CPC. If the Collector takes action
in the decree appropriately, the matter will not come back to the court and the court
will not have to interfere in the partition, except attending any complaint of an
affected third party. While making the partition the Collector is bound by declaration
of the rights of the parties in the preliminary decree. But the Court has no power to
fetter the discretion of the Collector conferred under the law. However in regard to
any issue on which the Collector is not competent to decide, the Civil Court will have
the power to dispose of. If the Collector disregards the terms of the decree, the Court
is entitled to refer the case back to the Collector to re-partition the property. The
Collector must actually divide the estate in the manner he thinks best keeping in mind
the nature of the land as revenue paying entity and the stipulations of the decree. The
object of this provision is two fold: firstly, the revenue authorities are more
conversant and better equipped to deal with such matters than a civil court and
secondly, the interest of the government in regard to the revenue paying estate would
be better safeguarded by the Collector than by the civil court.”10

A preliminary decree is a stage where the rights of the parties are worked out
which are then to be finally adjudicated by passing of a final decree. The Hon’ble
Supreme Court in Venkata Reddy Vs Pethi Reddy reported in AIR 1963 SC 992
explained in detail about “preliminary decree” and “final decree” and stated :
“A decision is said to be final when so far as the court rendering it is concerned, it is
unalterable except by resort to such provisions of the code of Civil Procedure as

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permit its reversal, modification or amendment. Similarly, a final decision would

mean a decision which would operate as res judicata between the parties if it is not
sought to be modified or reversed by preferring an appeal or a revision or a review
application as is permitted by the Code. 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. 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 Code of Civil Procedure which provides that where a party
aggrieved by a preliminary decree does 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 matters covered by it, a preliminary
decree is regarded as embodying the final decision of the court passing that decree”.11

MORE THAN ONE PRELIMINARY DECREE

Initially, there was divergence in opinion with regard to passing of more than one
preliminary decree in the same suit. According to one school of thought, there can
only be one preliminary decree in a suit and as per the other school of thought, there
can be more than one preliminary decree in a suit. The Hon’ble Apex Court in in
Phoolchand Vs Gopal Lal reported in AIR 1967 SC 1470 brought an end to the
conundrum by observing that CPC does not prohibit passing of more than one
preliminary decree if circumstances justify it and it is necessary to do so. Their
Lordships observed in the said judgment that “there may be more than one
11 Code of Civil Procedure, by Thakker, C.K., Volume 4, 2009 edition, Eastern Book Company, Lucknow, page No.
318
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preliminary decree if circumstances justify particularly in partition suits when after

the preliminary decree some parties die and shares of other parties are thereby
augmented. It was also observed that it would be convenient to the court and
advantageous to the parties to have disputed rights finally settled and specification of
shares in the preliminary decree varied before final decree is passed. If any event
transpires after the preliminary decree which necessitates a change in shares, the
court can and should do so”.12
When passing a preliminary decree in a partition suit, the court is required to
adjust equities between the parties. The preliminary decree determines claims of
respective sharers and furnishes the basis upon which the division of property should
be made. The court is also expected to consider other factors, such as, realization of
outstandings, discharge of liabilities, receipt of profits from the properties during the
pendency of proceedings, grant of owelty, provisions for maintenance or other
expenses etc.13
It is true that where a preliminary decree expressly or constructively decides a
particular point, the matter stands concluded and the decision on that point can be set
aside only by appellate or revisional court. But, subject to that condition, there is no
reason why if the suit is pending, the court should precluded from dealing with a
matter which has not been expressly or constructively decided by the court. 14

FINAL DECREE
“A final decree is one which completely disposes of the suit and finally settles
all the questions in controversy between the parties and nothing further remains to be
decided thereafter. A preliminary decree in a partition suit merely determines and
declares the rights of the parties in the properties and the extent to which they are
entitled. But it is the final decree which ultimately divides the properties by metes
12 Code of Civil Procedure, by Thakker, C.K., Volume 4, 2009 edition, Eastern Book Company, Lucknow, page No.
320
13 Code of Civil Procedure, by Thakker, C.K., Volume 4, 2009 edition, Eastern Book Company, Lucknow, page No.
320
14 Code of Civil Procedure, by Thakker, C.K., Volume 4, 2009 edition, Eastern Book Company, Lucknow, page No.
320
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and bounds and awards separate possession of the properties to the claimants. The
function of the final decree is to restate and apply what the preliminary decree has
ordered. A final decree is thus based upon and controlled by preliminary decree. It is
settled legal position that final decree proceedings are in continuation of preliminary
decree proceedings and there is no executable decree unless the final decree is
passed. The final decree does not originate itself, but flows from preliminary decree
already passed in a suit determining and declaring the rights and interests of the
parties in the suit. The final decree is not a decree in execution of preliminary decree
but decree in a suit. It is the final decree which is to be enforced”.15
Their Lordships of the Privy Council in Ditta Vs Ditta reported in AIR 1935
PC 12 observed that final decree neither relates to substantive rights of the parties nor
decides or declares title to the property or shares of the parties to the partition suit and
till the final decree is passed, there is no executable decree as envisaged by Order 20
Rule 18 of CPC. The Hon’ble Supreme Court in Muthangi Ayyana Vs Muthangi
Jagga Rao reported in (1977) 1 SCC 241 held that a final decree cannot go behind,
amend or alter preliminary decree.16

MORE THAN ONE FINAL DECREE

Usually, there will be only one preliminary decree and one final decree in a suit
but there was a difference in opinion prior to 1947 as to whether there can be more
than one preliminary decree and one final decree in a suit. The Hon’ble High Court
of Madras in Kasi Vs Ramanathan reported in (1947) Mad LJ 52317 comprehensively
took up the issue and observed “no doubt ordinarily there would be one preliminary
decree followed by one final decree in suits of the kind mentioned in Order 20 Rules
12 to 18, which accordingly provide for a preliminary decree or a final decree as the
case may be, being passed, but no inference can, in our opinion, be drawn from the
15 Code of Civil Procedure, by Thakker, C.K., Volume 4, 2009 edition, Eastern Book Company, Lucknow, page No.
322
16 Code of Civil Procedure, by Thakker, C.K., Volume 4, 2009 edition, Eastern Book Company, Lucknow, page No.
322
17 As cited in Code of Civil Procedure, by Thakker, C.K., Volume 4, 2009 edition, Eastern Book Company, Lucknow,
page No. 323
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general language used that the Code does not contemplate and the court has in
consequence no power, even in special cases involving a multiplicity of claims or
other complications, to pass more than one preliminary decree or one final decree.
The argumentum ab inconvenienti in view of the possibility of numerous appeals is
not very convincing,. Considerations of convenience are not all in favour of a single
preliminary and a single final decree being allowed in a suit. It is easy to imagine
cases where it would be expedient to allow a party to settle a disputed point by
preferring an immediate appeal and stopping an inquiry consequent on the
adjudication of the trial court, instead of requiring him to face the inconvenience and
expense of such inquiry which would have been wholly unnecessary if such
adjudication was ultimately reversed in appeal.
Patanjali Sastri, J in this case concluded the matter holding that the question is
not whether the Code allows more than one preliminary decree or one final decree to
be made, but whether the Code contains a prohibition against the court in a proper
case passing more than one such decree. We are unable to discover anything in the
Code that can be construed as such prohibition. On the other hand, as we have
already observed, there are indications that the Code contemplates more than one
preliminary decree and one final or executable decree in a suit”.18
In A.R.Veerappa Gounder Vs Sengoda Gounder reported in (1975) 1 Mad LJ
53,19 in a suit for partition and separate possession, preliminary decree. Then an
application for ascertainment of profits and allotment of share was made. But final
decree was passed without considering the application. The application was
thereafter dismissed and it was contended that the application could not have been
dismissed. Upholding the said contention, the court stated that normally the future
profits have to be ascertained before the passing of the final decree and the same
should be incorporated in the final decree. But that does not mean that if profits had
not been so ascertained before the passing of the final decree and it had not been
18 Code of Civil Procedure, by Thakker, C.K., Volume 4, 2009 edition, Eastern Book Company, Lucknow, page No.
324
19 As cited in Code of Civil Procedure, by Thakker, C.K., Volume 4, 2009 edition, Eastern Book Company, Lucknow,
page No. 324
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incorporated in the said final decree, the court cannot ascertain the profits and divide
the same among the sharers. I am clearly of the view that the court has not only the
power but also the duty to ascertain the profits and divide the same according to the
shares declared in the preliminary decree. Till this is done, the suit for partition
cannot be said to have been completely dispose of inspite of the court having already
passed a final decree. Though, normally, the suit for partition is completely disposed
of when a final decree is passed, if the final decree does not cover all the properties
that are to be divided, then undoubtedly the suit must be held to be still pending and
not completely disposed of.20
Referring to several earlier decisions, the Hon’ble High Court of Andhra
Pradesh in Azizabi Vs Fathimabi reported in (1976) 2 APLJ 39721 held that “We
would only like to emphasise that so long as the reliefs prayed for in a suit for
partition and separate possession and ascertainment of profits are not either expressly
granted or rejected and so long as the directions contained in the preliminary decree
regarding division of the properties and allotment of the shares therein and the
ascertainment and allotment of the decree holder’s share of the profits are not carried
out by either granting or refusing them, notwithstanding the passing of a final decree
with reference to one of the directions in the preliminary decree, a petition for passing
a final decree with reference to the other directions in the preliminary decree is
maintainable and the court is empowered to pass more than one final decree to
completely dispose of the suit”.22
The Hon’ble Supreme Court in Shankar Balwant Lokhande’s case (cited
supra) held that it is settled law that more than one final decree can be passed.

ISSUE OF COMMISSION TO MAKE PARTITION

20 Code of Civil Procedure, by Thakker, C.K., Volume 4, 2009 edition, Eastern Book Company, Lucknow, page No.
325
21 As cited in Code of Civil Procedure, by Thakker, C.K., Volume 4, 2009 edition, Eastern Book Company, Lucknow,
page No. 325
22 Code of Civil Procedure, by Thakker, C.K., Volume 4, 2009 edition, Eastern Book Company, Lucknow, page No.
325
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In case of immovable property other than the one mentioned in Order 20 Rule 18 (1),
where the court passes a preliminary decree for partition, the Court may issue a
commission, under Order 26 Rules 13 and 14, to a person (usually an advocate along
with a survey official) to physically examine various aspects and conditions of the
property to be divided and make partition or separation of property according to the
rights declared by the court in the preliminary decree. The Commissioner will, after
necessary inquiry, physically examine and divide the property into required number
of shares and allot such shares to the parties. The commissioner shall, if so authorised
in the court order, award such amount of money to be paid to the parties for the
purpose of equalising the value of the shares. The division by metes and bounds is a
ministerial or administrative function requiring physical inspection, measurement,
calculation and consideration of various possibilities of division. The commissioner
will then prepare a report apportioning each share by metes and bounds in a
distinguishing manner and send it to the court. If the commission consist of more than
one person and they cannot agree the commissioners can send separate reports to the
court.23

COURT CAN DIRECT SALE INSTEAD OF PARTITIONING

“In a suit for partition, if it appears to the court that a division of the property
cannot reasonably or conveniently be made, and that a sale of the property and
distribution of the proceeds would be more beneficial to the shareholders, the court
may, on the request of any of such shareholders interested individually or collectively
to the extent of one moiety or upwards, direct a sale of the property and a distribution
of the proceeds. The court can proceed for sale only on the request of a party or
parties. This can be done under Section 2 of the Partition Act. The request from the
shareholders for sale of property does not have to be in the nature of a formal prayer
but if the words employed simply denote it, that itself is enough. If the request thus

23 https://www.lawyersclubindia.com/articles/partition-suit-principles-practices--10449.asp
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made is on behalf of a person under disability the court has enough discretion to see
whether the request is for the benefit of the person under disability or not (See The
Partition Act, 1893 Section 5). A request of a co-owner essentially means he is ready
to convert his share into money. However the court has enough discretion in
formulating a suitable method for arriving at a just and fair division of property,
which is beneficial to all the shareholders, based on the facts of the matter. When a
party asks for and the court directs a sale of the property on a request by a party and
any other shareholder seeks the court’s permission to buy the share, the court shall
order for a valuation of the share/shares and sell the property to the shareholder so
requested at the price the court may think fit based on the valuation. When two or
more share holders come forward to buy the share the court should consider the
higher offer. When such a request is there it is obligatory on the part of the court to
offer to sell the property to the intending shareholder without opting for a different
course of action, normally. When no shareholder comes forward to buy the property,
the court should proceed for public sale of the property In any exceptional case
wherein a co-owner alone has the financial capacity for purchase the shares and he
offers a meagre price leading to patent injustice, the court has enough authority to
exercise its inherent powers to sell the property in public auction. An order of sale by
the court can be done either through public auction, under Section 2 of the Partition
Act or by bidding process within the shareholders, under Section 3 of the Act. The
right of a co-sharer to purchase a property accrues on the date the co-sharer requests
the court to sell the property under Section 2 of the Partition Act. The valuation has to
be made as on the day. After the shareholder applies for court’s permission to buy the
share under Section 3 of the Partition Act, the plaintiff who requested for sale under
Section 2 of the Act cannot withdraw the suit under Order 23 Rule 1 of the CPC.”24

24 https://www.lawyersclubindia.com/articles/partition-suit-principles-practices--10449.asp
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NO LIMITATION APPLICABLE TO A FINAL DECREE

It is the duty of the court to pass a final decree in a suit for partition after
preliminary decree is passed and therefore, Order 20 Rule 18 does not contemplate
filing of any application by a party for prescribes any limitation within which such
application can be made for passing of final decree. A partition suit is said to be
finally disposed of only when a final decree is passed. As per Article 136 of
Limitation Act 1963, period of limitation for execution of partition decree is 12 years
from the date the decree becomes enforceable.

MESNE PROFITS
The concept of mesne profits is developed from the principle Ubi jus Ibi
remedium as natural law provides right to compensation in case of breach or
infringement of a right. “The dictionary meaning of the term Mesne Profits is the
profits of an estate received by a tenant in wrongful possession and recoverable by
the landlord. It is further explained as the profits which have accrued while there was
a dispute over land ownership. And if it is determined that the party using the land did
not have legal ownership, the true owner can sue for some or all of the profits made
in the interim by the illegal tenant, which are thus called 'Mesne Profits.
Considering the legal sanction of the term, Mesne Profits of property has been
defined under Section 2 (12) of the Code of the Civil Procedure, 1908 as 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. The measure of Mesne Profits is the profits which the person in
wrongful possession actually received or might with ordinary diligence have received
from the property, together with interest on such profits, and not what the original
Claimant loses by his/her exclusion from the property. Mesne Profits include those
profits which the person in wrongful possession of such property actually received or
might with ordinary diligence have received therefrom. Wrongful possession of the
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Defendant is the very essence of a claim for Mesne Profits and the very foundation of
the Defendant's liability therefor. Liability to pay Mesne Profits goes with actual
possession of the land. Generally, the person in wrongful possession and enjoyment
of the immovable property is liable for Mesne Profits. A person is said to be in
wrongful possession when he/she enjoys such possession despite, another person is
entitled to it under law.”25

In Nataraja Achari Vs Balambal Ammal, reported in AIR 1980 Mad 222826, taking
into consideration the definition of Mesne Profits provided under Section 2 (12),
Hon'ble High Court observed that there are three different types of cases in which
question of rights of profits arise:27

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 Court observed, 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 Plaintiff's 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
25 https://www.legalserviceindia.com/legal/article-6942-concept-of-mesne-profits-under-code-of-civil-procedure-
1908.html
26 As cited in https://www.legalserviceindia.com/legal/article-6942-concept-of-mesne-profits-under-code-of-civil-
procedure-1908.html
27 https://www.legalserviceindia.com/legal/article-6942-concept-of-mesne-profits-under-code-of-civil-procedure-
1908.html
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would however, be in the position of the tenant in common from the date of
severance in status and his/her right would have to be worked out on that basis.28

INTEREST ON MESNE PROFITS

“The definition of the term Mesne Profit provided under Section 2 (12) of the
Code of Civil Procedure, 1908 explicitly provides that interest is an integral part of
Mesne Profits. From the expression together with interest on such profits in Section 2
(12) of the Code of Civil Procedure, 1908, it is apparent that Mesne Profit includes
within its fold an interest component. And the rate of interest to be allowed in regard
to Mesne Profits varies depending upon the facts and circumstances of each case.
Since the statute does not fix any rate of interest it is left at the discretion of the Court
to determine the rate of interest but the same should not exceed six per cent per
annum.”29
The Hon’ble Supreme Court in Mahant Narayana Dasjee Vs Tirupathi
Devasthanam, reported in AIR 1965 SC 123130 observed that:31 “Under Section 2
(12) of the Code of Civil Procedure, 1908 which contains the definition of Mesne
Profits, interest is an integral part of Mesne Profits and has, therefore, to be allowed
in the computation of Mesne Profits itself. That proceeds on the theory that the
person in wrongful possession appropriating income from the property
himself/herself gets the benefit of the interest on such income”.32
CPC does not provide the criteria for assessment of mesne profits and the
discretion therein is given to the courts to determine the quantum of mesne profits.
“The Court measures the Mesne Profits based on what the Defendant has gained or
reasonably might have gained with ordinary diligence by wrongfully possessing the
28 https://www.legalserviceindia.com/legal/article-6942-concept-of-mesne-profits-under-code-of-civil-procedure-
1908.html
29 https://www.legalserviceindia.com/legal/article-6942-concept-of-mesne-profits-under-code-of-civil-procedure-
1908.html
30 As cited in https://www.legalserviceindia.com/legal/article-6942-concept-of-mesne-profits-under-code-of-civil-
procedure-1908.html
31 https://www.legalserviceindia.com/legal/article-6942-concept-of-mesne-profits-under-code-of-civil-procedure-
1908.html
32 https://www.legalserviceindia.com/legal/article-6942-concept-of-mesne-profits-under-code-of-civil-procedure-
1908.html
 16

property and not what the Plaintiff has lost because of being deprived of possession.
Mesne Profits are something which a Plaintiff cannot evaluate, it is solely for the
Court to determine on the evidence before it. The amount of Mesne Profits to which
the rightful owner of the property is entitled is not fixed either by an agreement or
some statute and depends on the result of the inquiry conducted by the Court with a
view to ascertain the amount which the rightful owner of the property is entitled to
get from the person in wrongful possession. Mesne Profits are, therefore, un-
liquidated damages”.33

THIRD PARTY PURCHASER

The question as to whether a person can claim to be added as a party in a
partition suit if he has entered into an agreement of sale with one defendant was
considered by the Hon’ble High Court of Bombay in Jagannath Khanderao Kedar
Vs Gopinath Bhimaji Kedar34 In the said case, defendants No.15 and 16 filed an
application for their impleadment as they contend that their agreement of sale with
defendant No.1 makes clothes them as necessary parties, at any rate, as proper
parties. The plaintiff opposed the said application. The question that came up for
consideration was whether the said third parties are necessary or proper parties? It
was observed by the court that:35 “The well entrenched principle is that the plaintiff
is dominus litis which latin expression means that the plaintiff is the master of the
suit. The plaintiff cannot be compelled to wage a legal battle against a person, against
the plaintiff’s Will. The exception would be if the compulsion of law would
necessitate the presence of third party, either as necessary party or proper party. A
distinction between the plaintiff seeking addition of third party, and either, third party
of the defendant invoking the provisions of Order I Rule 10 (2) of the Code, will also
have to be borne in mind. I have already held that the third parties do not have any

33 https://www.legalserviceindia.com/legal/article-6942-concept-of-mesne-profits-under-code-of-civil-procedure-
1908.html
34 WRIT PETITION NO.6355 OF 2019 dt:06-06-2022 as cited in https://www.lawweb.in/2022/07/can-person-claim-
to-be-added-as-party.html
35 https://www.lawweb.in/2022/07/can-person-claim-to-be-added-as-party.html
 17

share or interest in the subject matter of the suit. The Agreement of Sale does not
create any interest in the property. A necessary party would be a party, in whose
absence, no effective decree can be passed. A proper party, would be a party, in
whose absence, an effective order can be passed but whose presence is necessary for
complete and final decision on the questions involved in the proceedings. In the
factual matrix, the suit is brought for partition and possession. The third parties, who
claim to hold an Agreement of Sale executed qua the suit property by defendant 1 are
neither necessary parties nor a proper parties considering the question involved. The
third parties claim to have an Agreement of Sale executed in their favour by
defendant 1. The right of third parties to enforce the agreement is restricted to
defendant 1 and the property which may fall to his share in view of the final
adjudication in the partition suit. The third party may, if permissible in law, proceed
on the basis of the Agreement of Sale, against the portion of the suit property which
may be allotted to the defendant 1, in the partition suit. The said decision and the
other decisions which consider similar situation do not take the case of third parties
any further since third parties have no interest in the property and merely hold an
Agreement of Sale and not Conveyance Deed as would transfer title and create share
and interest in the property in favour of third parties.”
Where either of the original parties to the suit transfers the suit property to a
subsequent purchaser pendent lite, the transferee becomes a third party purchaser to
the pending suit.

CONCLUSION:
Under CPC, court can pass preliminary decree or final decree or partly
preliminary or partly final decree. In a suit for partition, court can pass more than one
preliminary decree and more than one final decree if the circumstances in the case so
warrant. It is settled law that a second preliminary decree can be issued in a partition
case to modify the shares that had already been allocated in the first decree and
resolve any disagreements that might have arisen between the parties who survived
 18

the partition. It is also settled law that once a party who suffers preliminary decree
challenges the final decree alone without appealing the preliminary decree, he is
precluded from challenging it as principle of estoppel applies and he/she is estopped
from disputing the correctness or validity of preliminary decree in final decree
proceedings. The term Mesne Profits, under Section2 (12) of Code of Civil
Procedure, 1908 also includes within its ambit interest on such profits, but it does not
include profits made due to improvement in the immovable property. CPC does not
lay down any uniform standard for assessment of mesne profits as they are in the
nature of compensation and the adjudicating courts are best placed to assess them on
case to case basis. Courts are required to exercise their powers judiciously when
determining the qunatum of mesne profits and the interest thereon.