Judgment:
K.P. Mohapatra, J.
1. In this appeal the judgment and decree passed by the Additional Subordinate Judge, Berhampur, confirming the judgment and decree passed by the learned Munsif, Berhampur, have been challenged.
2. The respondent (Plaintiff) is admittedly the first wife of the appellant (defendant). Her rase is that she had married the appellant in 1946. Her father Nilamani, who owned the agricultural land described in schedule 'A' and the house and homestead described in schedule 'B' of the plaint, had no male issue. In order that the appellant and the respondent would take care and look after him and his wife in their old age. Nilamani alienated the suit property jointly in their favour by a deed of gift executed on 30-7-1947. The appellant and the respondent thus remained in possession of the suit property and looked after Nilamani and his wife until their death. But, soon after the death of Nilamani's widow, the appellant neglected and ill-treated the respondent and ultimately in the year 1969 drove her out of the house. He took a second wife, begot children through her and has been living with them The respondent, on the other hand, is living a life of destitute. As a matter of fact, the suit property was gifted in favour of the respondent by her father Nilamani with a condition that so long the appellant will keep his marital relationship with her, he shall enjoy the property. After the appellant cut off his marital relationship with her, he is no longer entitled to enjoy the suit property. Therefore, she prayed for declaration of her title in respect of the suit property described in schedules 'A' and 'B' of the plaint, for recovery of possession thereof by evicting the appellant therefrom and for mesne profits since the year 1972-73.
3. The appellant in his written statement infer alia contended that although he had married the respondent, the latter soon after the death of Nilamani eloped with one Dondia Setti and herself voluntarily cut off marital relationship with him. Therefore, at the instance of the respondent's mother, he married for the second time in the year 1950. The respondent remained out of possession of the suit property soon after she left him and so by remaining in exclusive and contineous possession thereof, for more than 12 years to the knowledge of the respondent, he has acquired title in respect of the suit land by adverse possession. Therefore, the respondent, according to him, was not entitled to the reliefs prayed for.
4. The learned Munsif held that by virtue of the deed of gift (Ext. A), the appellant and the respondent both acquired joint title and possession in respect of the suit property. There was break of marital relationship and separation between the parties in the year 1969. The appellant could not prove ouster of the respondent from the suit property and acquisition of his own title in respect thereof by adverse possession. The respondent, therefore, had half share in the suit property and accordingly she was entitled to a preliminary decree for partition of her half share therein. She could not, however, prove her case of mesne profits and so was not entitled to the same Accordingly, the learned Munsif passed a preliminary decree for partition. On appeal, the learned first appellate Court confirmed the decree for partition and although the respondent had not preferred a cross-appeal or cross-objection claiming mesne profits, he decreed the same at the rate of Rs. 300/- per year from the agricultural year 1972-73 till recovery of possession.
5. Learned counsel for the appellant did not challenge the concurrent findings of facts recorded by the learned Courts below and rightly so in view of the provisions of Section 100 of the Code of Civil Procedure ('Code' for short) according to which the High Court cannot make a fresh appraisal of the evidence and come to a different finding contrary to the finding recorded by the first appellate Court (See AIR 1986 S. C. 1509, Dudha Nath Pandey v. Suresh Chandra Bhattasali). He, however, raised two contentions which are legal in character. The first is that, the learned Courts below committed an error of law by passing a preliminary decree for partition firstly in the absence of a specific prayer made by the respondent in respect thereof and secondly in the absence of an amendment of the plaint so as to bring the pleadings in conformity with a regular suit for partition. The second is that, the trial Court refused the respondent's prayer for mesne profits, but the first appellate Court assessed the mesne profits and gave a decree therefor in favour of the respondent although the latter did not prefer a cross-appeal or a cross-objection.
6. So far as the first contention is concerned it is necessary to recall the facts of the case Nilamani made a gift of schedules 'A' and 'B' property of the plaint in favour of the respondent and the appellant and made both of them joint owners in respect thereof. In view of the recitals of the deed of gift, as well as, the evidence adduced by the parties, the learned Courts below concurrently held that the respondent had no exclusive title in respect of the suit property nor did the appellant acquire title in respect thereof, particularly relating to the share of the respondent by adverse possession. Therefore, being joint owners of schedules 'A' and 'B' of the plaint, both the parties are entitled to half share each therein. In view of these facts and in order to do substantial justice and avoid multiplicity of suits, the learned Courts below had no other alternative than to pass a preliminary decree for partition so that in future the respondent shall exclusively possess her half share and similarly the appellant shall also exclusively possess his own half share of the suit property. As a matter of fact, for passing of a preliminary decree for partition, the foundation in the pleadings had already existed and so there was no necessity of making any amendment either in the plaint or in the prayer portion thereof. This view is supported by a decision of this Court reported in 1977(1) CWR 121, Bui Sahuani and Ors. v. Seshadev Sahu and others, in which it was held that even without amendment of the plaint of a suit for title and possession, a decree for partition can be granted (also See XXVI (i960) CLT 514 Badan Podh v. Fagu Meher and others, AIR 1952 Mag 202 Gartgaram Ramohandra v. Butrusao and others, and AIR 1963 A. P. 78 Marasimham v. Narasimha Rao). In view of the aforesaid-principle, the preliminary decree for partition in a suit of this kind was legal, just and proper. Therefore, the first contention is untenable.
7. Now coming to the second contention, it is true that the trial Court rejected the respondent's prayer for mesne profits. So, in usual course, if aggrieved, the respondent should have filed, a cross-appeal or a cross-objection against this part of the trial Court's decree. But she did not choose to do so manifestly because, she had sued as an indigent person and very likely she remained satisfied after getting a preliminary decree in respect of half share in the suit properly. The first appellate Court, however, took up this question, discussed the evidence, assessed the annual mesne profits at Rs. 300/-and gave a decree in favour of the respondent. Obviously, the first appellate Court purported to act under the provisions of Order 41, Rule 33 of the Code. It is to be Considered how far he was justified in accordance with law to take recourse to the aforesaid provision in the absence of a regular cross-appeal or a crossobjection preferred by the respondent before him.
8. A Division Bench of this Court examined the scope and ambit of Order 41, Rule 33 of the Code and held in a decision reported in AIR 1958 Ori, 81, Kora Rana v. Saibo Behera and others, as follows :
'Doubtless, R. 33 of O. 41 confers a wide and unlimited jurisdiction on the Court of appeal to pass a decree in favour of a party who has not preferred a cross-appeal or objection; but that does not mean that the other provisions of the Code should be completely abridged or abrogated. Circumstances may arise where the appellate Court in exercise of its powers under O. 41, R. 33, to do complete justice between the parties, may vary or reverse the decree passed by the trial Court ; but the general principle underlying the Civil Procedure Code should always be strictly followed.'
In another case reported in AIR 1963 Ori. 136, P. Rammurty v. A. Kalpo Patra and others, a learned Single Judge of this Court relied upon the earlier decision and took an identical view. In a case reported in AIR 1978 S C. 725, Tummalla Atchaiah v. Venka Narasingarao, the plaintiff filed a suit for cancellation or setting aside of the registered assignment deed executed by him in favour of the defendant purporting to transfer the decree obtained in an earlier suit for recovery of the possession of the scheduled properties measuring about 20 to 25 acres of land and for future mesne profits. The trial Court decreed the suit in part and granted a decree for cancellation of the assignment deed on the plaintiff's paying Rs. 13,000/-to the defendant. The defendant filed an appeal in the High Court. The plaintiff was a party to the appeal. He had filed a cross-objection but did not attack the decree of the trial Court making him liable to return Rs 13,000/- before he could rake back possession from the defendant. The defendant's appeal was dismissed by the High Court subject to the finding that a sum of Rs. 7,600/- only had been paid by the defendant to the plaintiff. On the above facts it was held as follows :
'We are of the view that the High Court was clearly wrong in taking recourse to Order 41, R. 33, C.P.C., in interfering with the decree of the trial Court in relation to payment of Rs. 13,000/-. The cases relied upon by the High Court are clearly distinguishable. The plaintiff was a party to the appeal. He had filed a cross-objection but did not attack the decree of the trial Court making him liable to return Rs. 13,000/- before he could take back possession from the defendant. Without a specific ground in the cross-objection and without payment of court-fees on the said amount he was not entitled to get any relief by the Court, under Order 41, Rule 33, C.P.C.'
9. The principle laid down in the aforesaid decisions is that the provisions of Order 41, Rule 33 of the Code shall be made applicable only in suitable cases to do complete justice between the parties, but at the same time the general principle underlying the Code should always be adhered to and strictly followed.
10. In the persent case, the records reveal that issue No. 3 framed by the trial Court related to recovery of possession of the suit property, as wall as, mesne profits. In deciding the said issue the trial Court held that the plaintiff is entitled to recover possession of half share of the suit property after partition, bur she is not entitled to recover mesne profits as claimed because of lack of satisfactory evidence to prove her case of mesne profits. When an appeal was filed by the appellant in the first appellate Court, it was the duty of the respondent to file a cross-objection against the finding of the trial Court refusing to grant her the relief of mesne profits. In the absence of a cross-objection the first appellate Court was under no legal obligation to decide the question of mesne profits. Nevertheless, he decided the matter and decreed mesne profits at the rate of Rs. 300/- per year from 1972-73 till recovery of possession He did not even give direction that before recovery of mesne profis she was liable to pay the requisite court-fees He did not also assign any reason which prompted him to decide the question of mesne profits although the respondent had not filed a cross-objection which was necessary under the provisions of Order 41, Rule 22 of the Code In the aforesaid view of the matter, the finding recorded by the lower appellate Court awarding mesne profits to the respondent at the rate of Rs. 300/- per year from 1972-73 cannot be supported.
11. The aforesaid conclusion notwithstanding, it is to be considered she is entitled to mesne profits corresponding to her half share in the suit property from the date of institution of the suit which shall be determined in the final decree proceeding. In this connection, I do make reference to a decision of this Court in Civil Revision No. 262 of 1986, Prafulla Kumar Sahoo v. Charulata Sahoo and another, decided on 2-9-1986 After review of a large number of decisions it was held that in a suit for partition amongst co-sharers in this case joint owners or co owners-relief for rendition of accounts and claim for rents, income and profits is implicit. Even if the plaint does not contain such a prayer and appears to be a suit for partition simpliciter, after the preliminary decree is passed and in the final decree proceeding it is the duty of the Court to settle all outstanding disputes between the parties including those for rents, accounts and profits so as to prevent multiplicity of litigations, So, in the event of a preliminary decree for partition accounts should have to be taken and rents, income and profits apportioned to the shares of the parties from the date of the institution of the suit till the date of the final decree. In the present case a preliminary decree for partition between two joint owners or co-owners has been passed and final decree proceeding has to be taken up by the Court. In the final decree proceeding the equities between the parties including mesne profits from the date of the institution of the suit till the date of recovery of possession must have to be determined. Such an event is the natural consequence of a preliminary decree for partition. I am, therefore, of the view that in the facts and circumstances of the case, the respondent is entitled to mesne profits from 22-7-1975, when the suit was filed till recovery of possession of her legitimate share on payment of requisite court-fees.
12. In the ultimate analysis, the preliminary decree for partition passed by the learned Courts below has to be upheld with a further direction that the respondent shall be entitled to mesne profits to be determined in the final decree proceeding from the date of the institution of the suit till recovery of possession of her legitimate share in the suit property. The finding of the first appellate Court is, therefore, partially modified.
13. The appeal is accordingly dismissed with costs with the above modification. Hearing fee is assessed at Rs. 100/-(Rupees one hundred).