RFA(OS) 35/2011. Case: Bhagwan Kishan Gupta Vs Rani Gupta And Others. High Court of Madhya Pradesh (India)
| Case Number | RFA(OS) 35/2011 |
| Counsel | For Appellant: Mr.Ajay Talesara, Adv. |
| Judges | Pradeep Nandrajog and S.P.Garg, JJ. |
| Issue | Civil Procedure Code |
| Judgement Date | November 15, 2011 |
| Court | High Court of Madhya Pradesh (India) |
Judgment:
Pradeep Nandrajog, J.
CM No. 4811/2011
For the reasons stated in the application, delay in filing the appeal is condoned.
1. With respect to unity of title and unity of possession, suit for partition filed by the appellant was held, with consent of parties, not liable to be proceeded any further in as much as in a parallel suit being CS (OS) No.1363/1998 filed by the opposite party, subject property was partitioned by metes and bounds.
2. In the suit filed by the appellant, the only issue which survived for consideration was whether plaintiff would be entitled to mesne profits, which he claimed on the ground that in the joint property he was in possession of an area which was less than his share as finally determined.
3. Thus, the issue which was settled was:
Whether the plaintiff is entitled to any mesne profits as claimed by him? OPP
4. In Paras 7.4 to 10.1, the learned single Judge has opined, with reference to the decisions reported as 122(2005) DLT 629 National Radio & Electronic Co. Ltd. Vs. Motion Pictures Association, (1887) ILR 14P.C.493 Pirthi Pal and Uman Parshad Vs. Jowahir Singh and Ors., (1889) ILR 16 Cal. 397 Hardeo Baksh and Ors. Vs. Shankar Baksh, (1922) 43 MLJ 406 T.Ramaswami Aiyar Vs. T. Subramania Aiyar and Ors., (1914) XXIII IC 122 Gora Chand Chatterjee and Ors. Vs. Keshab Ohunder Khowas & Ors. and (1894) ILR XIX Bom.532 Bhivrav Vs. Sita Ram that unless it is a case of complete ouster, no joint or co-sharer of a property can be granted any mesne profits merely because he was occupying a lesser area in the joint property.
5. Learned single Judge has held, a fact not in dispute, that in the instant case it was not that the plaintiff was ousted from the joint property. He was occupying, albeit less, a share in the joint property.
6. Learned counsel for the appellant does not dispute the correctness of the ratio of law culled out by the learned single Judge but...
To continue reading
Request your trial