Smt. K. Lakshmamma Vs. T.M. Rangappa and ors. - Court Judgment

Excerpt:
civil procedure code, 1908 (central act no. v of 1908) - order 20 rule 18 -- order 20 rule 12 -- the concept of 'mesne profits'-- suit for partition and separate possession -- a suit for partition and accounts is governed by order 20 rule 18 cpc -- an application for determination of mesne profits arise out of a suit for partition and separate possession, the question of limiting the period of profits for three years, as required under order 20 rule 12 cpc, would not arise as the determination would be under order 20 rule 18 cpc -- the limitation of three years for determination of mesne profits prescribed under order 20 rule 12 cpc, could not be imposed. on facts held -- (a) in a suit for partition, mesne profits will be determined under order 20 rule 18 cpc -- it is clear that while considering determination of mesne profits to which the plaintiff is entitled to in a suit for partition and separate possession, the provision that would be applicable is order 20 rule 18 cpc, and not order 20 rule 12 cpc -- (b) that the limitation of 3 years for determination of mesne profits under order 20 rule 12 cpc, as held by the appellate court cannot be sustained and the same is liable to be set aside -- (c) the decree pursuant to which the application for determination of mesne profits is filed enables the plaintiff to recover mesne profits from the date of suit to the date of possession. ;appeal allowed and matter remitted to the first appellate court to decide the appeal on merits regarding the question of mesne profits and interest awarded by the trial court. ;it is well settled that mere fact that a wrong provision of law has been quoted would not disable the court from deciding the matter in substance when the intention of parties is clear as it is well settled that though an application is taken out under order 20 rule 12 cpc, still it does not necessarily mean that the application should be dealt with by the court only under that order and rule. if a mistake has been committed in mentioning a provision of law under which an application is made, it does not preclude the court from deciding the matter under the correct provision of law, namely, order 20 rule 18 as laid down by the madras high court in the case of ramaswami iyer v. a. subbaiar and anr. air 1997 madras 184 and in the case of d. nataraja achari v. balambal ammal. 1980 madras 222. ;it is clear from a perusal of the order passed by the first appellant court that the first appellate court has not gone into merits of the appeal regarding determination of the amount of mesne profits, to which the petitioner is entitled to or to find out as to whether determination of amount of mesne profit to which the petitioner is entitled to was justified having regard to the material on record as held by the trial court and the first appellant court merely on the basis of the finding that the award of mesne profits had to be restricted to 3 years and that the outer limit for awarding mesne profits in the present case would be the date of filing of the petition and has remitted the matter to the trial court. in view of the above said finding that the finding of the first appellant court that mesne profits could be awarded only for 3 years from the date of filing final decree proceedings in view of order 20 rule 12 cpc., and that the petitioner would be entitled to mesne profits only from the date of suit till the date of filing of the petition, is unsustainable. - section 13: [n.k.patil, j] dissolution of marriage - proceedings initiated by the respondent under application filed under order 23 rule 1 and 2 for withdrawal of the petition - application was made after a lapse of 8 years, at the stage of cross examination of p.w.-1 rejection of application - memo filed for withdrawal of the petition once again order of the trial court permitting the respondent to withdraw the petition - challenged as to held, there is delay of more than eight years in approaching the court below for filing a memo for withdrawal of the petition, that too, when the application i.a.no.5 filed by the respondent for withdrawal of the petition under order 23 rule 1 and 2 of cpc has been rejected by the said court. reiterating the same stand in the memo for withdrawal is nothing but res-judicata for the respondent to file such misconceived and vexatious memo for withdrawal. the lower court ought not to have entertained such a memo permitting the respondent to withdraw the petition which was at the stage of recording the further cross-examination of the respondent. the trial court further committed grave error in not considering the status of the parties and material available on record and the contentions taken by the petitioner by way of objections. the trial court has proceeded and handled the entire matter very casually. order of the trial court is not justified. - the profits accruing from the common properties pending a suit for partition, like the properties themselves, are liable to be partitioned under the final decree even without a specific prayer in the plaint for an account of such profits and a division thereof. a suit for partition by a member of a joint hindu family is substantially a suit for an account of the joint family properties on the date of the suit as well as all the profits received by the manager since that date, so that the profits should also be divided and his proper share given to him. it is clear from the decision of the hon'ble supreme court in chittoori subbanna's case that in the said case, the plaintiff had filed a suit for recovery of possession of 'a' and 'c' scheduled properties a well as for partition and allotment of 1/24th share in the properties mentioned in schedule b attached to the plaint and also mesne profits. it is well settled that mere fact that a wrong provision of law has been quoted would not disable the court from deciding the matter in substance when the intention of parties is clear as it is well settled that though an application is taken out under order 20 rule 12 cpc, still it does not necessarily mean that the application should be dealt with by the court only under that order and rule.sabhahit, j.1. this miscellaneous second appeal is filed against the order dated 31.07.2000 passed by the ii addl. district judge, tumkur, in r.a. no. 12/1997.2. the essential facts of the case leading up to this appeal with reference to rank of parties before the trial court are as follows:sri kare rangappa filed suit, o.s. no. 70/1959 on 24.2.1959 on the file of the district judge, bangalore, for partition and possession of his half share in the plaint schedule 'a', 'b' and 'c' properties after division by metes and bounds and directing the second defendant to render accounts from january 1957 and future mesne profits from the date of suit till the date of delivery of possession and for cost. the said suit was decreed on 31.03.1964 by declaring that the plaintiff is entitled to 1/4th share in the schedule properties and be put in possession of the same after partition by metes and bounds and to get accounts regarding his share from the date of suit till the date of possession. that being aggrieved by the judgment and decree, plaintiff filed r.f.a. no. 132/ 1964 and defendants preferred r.f.a. no. 137/1964 before this court. during the pendency of those appeals, parties entered into compromise and as per memo, this court by order dated 10.09.1969, dismissed the appeals and the decree made by the district judge was conferred subject to the modification as under: (a) declaring that plaintiff (appellant in rfa no. 132/1964) is entitled to one fourth share in the properties described in 'a' schedule annexed to the decree and that the lands therein namely, item nos. 1 to 8 and 15 to 24 in 'b' schedule to the partitioned and separated by metes and bounds and plaintiff be put in possession of his separate share under section 54 of the code of civil procedure and in respect of items 9 to 14 in 'a schedule a commissioner be appointed for the purpose of partition. the plaintiff is not entitled to any share in items of moveables mentioned in schedule 'b' and 'c' of the decree.(b) the plaintiff-appellant do get his share of mesne profits from 'a' schedule properties only from 29.12.1959 till he is put in possession.(c) the plaintiff-appellant may make an application in the trial court for the ascertainment of mesne profits under order 20 rule 12 of the code of civil procedure. 3. the plaintiff kare rangappa died on 20.1.1971 leaving behind his daughter laxmamma (appellant herein) and sannamma, they as the legal representatives of the plaintiff made an application to come on record and continue the proceedings and the court by upholding their contention and will, held that they are entitled to 1/4th share in the schedule properties and also mesne profits by order dated 9.4.1975. being aggrieved by the said order, defendants preferred r.f.a. no. 76/1975 on the file of this court and this court stayed further proceedings. however, stay order was modified on 1.9.1995 and permitted the legal representatives to continue the proceedings and permitted the trial court to determine the profits from 1959 payable towards 1/4 share of the plaintiff and accordingly, f.d.p. no. 6/1978 was filed praying to determine the mesne profits to which petitioners are entitled to as per the decree along with interest on the said mesne profits at 18% per annum compounded yearly from the date of suit till the date of application, 2.1.1976.4. the first defendant filed objections on 29.1.1976 contending that proper court fee had not been paid and hence, relief cannot be granted and further contended in his additional objection that application is misconceived. application for mesne profits upto 8.1.1976 is not maintainable. since decree in appeal is passed on 10.09.1969 and view of provision of order 20 rule 12 (ii) (c) cpc., the petitioner is entitled to mesne profits for 3 years from the date of decree.5. it may be noted that during the pendency of the proceeding, petitioner no. 2. sannamma compromised the case with the respondent by giving up her claim for rs. 1,95,000/- in lieu of her share. as per the will, out of 174 share of suit properties, the 1st petitioner was entitled to 178th i.e. 5732 share and the 2nd petitioner was entitled to 3732 share and rest 24732 share shall go to respondents and wherefore, in the final decree proceedings, determination of the 1st petitioner's claim for mesne profit alone survived for consideration. r.f.a. no. 76/1975 was dismissed on 8.1.1981 and i.a. nos. xix and xx were filed for determination of mesne profits till delivery of possession and the same were allowed.6. in the f.d.p. no. 671978, pws.1 to 6 were examined and exs. p1 to p53 were got marked for petitioner and on behalf of respondents, dws. 1 to 7 were examined and exs. d1 to d20 were produced. the learned civil judge by his judgment dated 30.09.1997, held that the 1st petitioner is entitled to mesne profits from the date of suit till the date of delivery of possession of schedule properties and the petitioner is entitled to mesne profits of rs. 8,93,409/- along with interest at 6% per annum from the date of suit till 10,09.1968 and at the rate of 12% per annum from 11.9.1969 till the date of order (30.09.1997) and at 18% per annum from 1.10.1997 till delivery of possession to the 1st petitioner along with cost and dismissed the petition in respect of the 2nd petitioner.7. that being aggrieved by the order of the learned civil judge dated 30.9.1997, respondents in f.d.p. no. 6/1975 preferred r.a., no. 12/1997 on the file of the ii addl. district judge, tumkur, on 31.10.1997 and the learned ii addl. district judge, tumkur, by his judgment dated 31.7.2000, allowed the appeal, set aside the order dated 30.9.1997 passed in f.d.p. no. 6/1978 and remanded the matter to the civil judge to arrive at the mesne profits from the date of suit till the date of filling f.d.p., with interest thereon after giving opportunity to both the sides.8. that being aggrieved by the judgment and decree passed by the first appellate court dated 31.07.2000, the 1st petitioner in the f.d.p, has preferred this appeal.9. i have heard the learned senior counsel sri b.v. acharya, appearing for the appellant and sri yoga narasimha, the learned counsel appearing for respondents 1 and 4. respondents 2 and 3 though served, have not chosen to appear before this court.10. sri b.v. acharya, the learned senior counsel appearing for the appellant submitted that the first appellant court was not at all justified in holding that the petitioner would be entitled to mesne profits for more than three years from the date of decree and in remanding the matter to pass fresh order determining mesne profits from the date of suit till filing of fdp. the learned senior counsel submitted that the application seeking determination of mesne profits in partition suits would only mean taking account of profits accruing out of properly allotted to applicant's share and the same would be governed by order 20 rule 18 cpc and not order 20 rule 12 cpc., and the compromise memo on the basis of which decree was passed in appeal enabled the petitioner to get profits from the date of suit to the date of realization and that is given effect to by trial court by allowing i.as. nos. xix and xx seeking profits till handing over possession which has been allowed without objection of respondents. he has relied upon the following decisions in support of his contention and has also relied upon observations of the learned author mulla in his treatise on civil procedure (14th edition):* basavayya v. guravayya (fb), : air1951mad938 f.b * ramaswamy v. a. subbiar, : air1957mad184 * subba reddiar v. hazra bibi, : air1973mad237 * d. nataraja achari v. balambal ammal, : air1980mad222 * hashumal v. bombay halwa house, 1984 (1) mysore law journal 200* d. sathyanarayana murthy v. d. bhavanna, air 1957 a.p. 766* d.k. obulu raju v. d. voblu raju, 1980 (1) and w. reporter 126* mariyamma v. kunchamba nair, ilr 1968 kerala 43* parvathi and anr. v. venkatramana prasad and ors., : ilr2003kar2304 11. the learned counsel appearing for the respondent submitted that only provision in the civil procedure code to determine mesne profits is under order 20 rule 12 and even decree contemplated determination under order 20 rule 12 cpc., only and hence, the first appellate court has rightly held that in view of the said provision, mesne profits could be granted only for 3 years from the date of decree and since application itself was for determination of mesne profits till the date of application, f.d.p. no. 6/1978 mesne profits could not be awarded for any period subsequent to filing of f.d.p. no. 6/1978. he has relied upon the decision of the supreme court chittori subbanna v. kudappa subbanna and ors., : [1965]2scr661 12. the points that arise for determination in this appeal having regard to the contentions urged are as follows:-1. whether the first appellate court was justified in holding that the 1st petitioner in f.d.p. no. 6/1978 was entitled to mesne profits only for 3 years from the date of final decree in view of provisions of order 20 rule 12 clause (c) cpc., and that determination of mesne profits should be from the date of suit till the filing of f.d.p.?2. whether the judgment and decree passed by the first appellate court, calls for interference in this appeal?3. what order13. i have given anxious consideration to the contention of the learned counsel appearing for the parties and carefully scrutinized the material on record including the oral and documentary evidence adduced by the parties and gone through the decisions relied upon by the learned counsel appearing for the parties and i answer the point for determination as follows for the following reasons:point no. 1 : in the negativepoint no. 2 : in the affirmativepoint no. 3 : as per the final orderreasons14. points 1 to 3: these points are considered together since they are interconnected and to avoid repetition.15. in the present case, the application for determination of mesne profits arises out of the decree passed by this court in r.f.a. nos. 132 and 137 of 1964 dated 10.09.1969, declaring that the plaintiff is entitled to share in the suit schedule properties by metes and bounds and that the plaintiff in entitled to share of mesne profits from schedule properties from 29.12.1959, the date of filing of the suit till he is put in possession. the suit was filed for partition and separate possession of plaintiff's share in the suit schedule properties. it has been held by the full bench decision of the madras high court in babburu basavayya and ors. v. guravayya and anr., (air) (38) 1951 madras 938) - as follows:-'(3) 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' and section 2, clause (12), civ. 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 favour of the collecting tenant in common. in the third case, the plaintiff must take the joint family properly as it exists at the 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. the plaintiff would, however, be in the position of a tenant-in-common from the date of severance in status and his rights would have to be worked out on that basis.(4) order 20 rule 12 civil procedure code deals with the first class of suit above referred to, while order 20 rule 18, deals with the second and the third categories.the profits accruing from the common properties pending a suit for partition, like the properties themselves, are liable to be partitioned under the final decree even without a specific prayer in the plaint for an account of such profits and a division thereof. the right to an account of such profits is implicit in the right to a share in the common properties and both rights have to be worked out and provided for in the final decree for partition. a suit for partition by a member of a joint hindu family is substantially a suit for an account of the joint family properties on the date of the suit as well as all the profits received by the manager since that date, so that the profits should also be divided and his proper share given to him. if, as we think, this is the true nature of the proceedings in a suit for partition a direction for an enquiry into the profits of the common property received or realised by one of the parties during the pendency of the suit may be made even after the passing of the preliminary decree and there is nothing in order 20 rule 18 civil procedure code interdicting such procedure.a partition suit in which a preliminary decree has been passed is still a pending suit and the rights of the parties have to be adjusted as on the date of the final decree.even after the passing of the preliminary decree it is open to the court to give appropriate directions regarding all or any of these matters either suo motu or on the application of the parties. order 20 rule 18, civil procedure code, does not prohibit the court from issuing such directions after the stage of a preliminary decree. it is open to the court in order to prevent multiplicity of litigation and to do complete justice and effect an equal division of all the common assets and properties among the parties, to direct an enquiry into the profits received or realised by one or some of them during the pendency of the suit and to award the others their proper share of such profits under its final decree. this enquiry can be ordered either as part of the preliminary decree itself or subsequently as a step towards the passing of the final decree, and in either case the result of the enquiry has to be incorporated in the final decree.'the above said decision has been followed in the subsequent decision of the madras high court as also by the other high courts. this court in its order dated 5.1.1962 basanagouda patil v. yallappa gouda patil, c.r.p. no. 272/1960 has followed the above said principles laid down by the full bench decision of the madras high court in basayya's case and has further held that when the application for determination of mesne profits arise out of a suit for partition and separate possession, the question of limiting the period of profits for three years, as required under order 20 rule 12 cpc., would not arise as the determination would be under order 20 rule 18 cpc., and the limitation prescribed under order 20 rule 12 cpc., could not be imposed. this court in the case of parvathi and anr. v. venkataramana prasad and others referred to the decision of the full bench decision of the high court of madras in basayya's case and has observed as follows:-'18. the concept of 'mesne profits' is applicable to cases of wrongful possession and not partition. the right of a tenant-in-common or a co-owner to a share in the profits from a property in the enjoyment of another tenant-in-common, is not a right to mesne profits for wrongful possession, but a right appurtenant in his right to a share in the property. a suit for partition and accounts is governed by order 20 rule 18 cpc. neither section 42 (relating to suits for mesne profits) nor order 20 rule 12 (relating to suits for possession and mesne profits) relied on by the first respondent, is relevant to a suit for partition and accounts and share in profits. section 35 of the act governs suits for partition with or without the ancillary relief of accounts. in a final decree for partition, what is determined is the share of the plaintiff in the profits from the property as a result of rendering of account by the tenant-in-common in physical possession or management, and not mesne profits.'in a recent decision in m.l. subbaraya setty v. m.l nagappa setty, : air2002sc2063 hon'ble supreme court has observed that on partition by severance of the joint status, the members of the family become the tenants-in-common of the family property. however, character of any joint family property does not change with the severance of the status of the joint family and joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst co-sharers and that the preliminary decree declares the shares of the parties and the properties which are joint are required to be divided between co-sharers and valuation and determination of profit is made with reference to order 20 rule 18, order 18 rule 226, rules 13 and 14 of cpc, and actual partition is effected by passing of the final decree.16. learned counsel appearing for the respondent submitted that in view of the decision of the hon'ble supreme court in the case of chittoori subbanna v. kudappa subbanna and ors., reported in : [1965]2scr661 , the principles laid down in the above said decisions would not be helpful to the appellant in the present case as the hon'ble supreme court in chittoori subbanna's case has held that only mode of determination of mesne profits is under order 20 rule 12 cpc. he has referred to observations made by the hon'ble supreme court, wherein it is observed in para 18 that:'there is no provision of law other than the provision of rule 12 order 20 cpc, which empowers the court to decree mesne profits subsequent to the institution of suit for the recovery of possession of immovable property and mesne profits.'it is clear from the said decision of the hon'ble supreme court in chittoori subbanna's case that in the said case, the supreme court was considering the question of determination of mesne profits in respect of the right arising to the plaintiff in whose favour there was a decree for possession. it is clear from the decision of the hon'ble supreme court in chittoori subbanna's case that in the said case, the plaintiff had filed a suit for recovery of possession of 'a' and 'c' scheduled properties a well as for partition and allotment of 1/24th share in the properties mentioned in schedule b attached to the plaint and also mesne profits. the trial court while awarding other reliefs awarded mesne profits from the date of suit till the date of possession and there was no dispute regarding claim for determination of mesne profits in respect of 'b' schedule property, wherein the plaintiff was held to be entitled to partition and separate possession of 1/24th share and the statement of facts made in para 1 of the judgment shows that there was no compliant in the hon'ble supreme court with regard to mesne profits in respect of 'b' schedule property and wherefore, the hon'ble supreme court was considering the question regarding determination of profits in respect of 'a' and 'c' schedule properties only wherein the plaintiff was held to be entitled to possession of the property and for recovery of possession of the property and wherefore, the hon'ble supreme court was considering the provisions of order 20 rule 12 cpc, as the said claim would fall within category 1 mentioned in subbanna's case referred to above and wherefore, the said observations made by the hon'ble supreme court while determining the question regarding ascertainment of mesne profits in a suit where the plaintiff had obtained decree for recovery of possession would not be helpful to the respondent in this case to contend that there is no other provision in the civil procedure code to determine mesne profits as the observations of the hon'ble supreme court stated above has to be considered in the light of the above said facts of the case and the supreme court has now held that in a suit for partition, mesne profits will be determined under order 20 rule 18 cpc., (subbayya setty's case : [2002]3scr326 ). therefore, it is clear that while considering determination of mesne profits to which the plaintiff is entitled to in a suit for partition and separate possession, the provision that would be applicable is order 20 rule 18cpc, and not order 20 rule 12 cpc., as laid down by the above said decision. in view of the decision of this court in parvathi's case : ilr2003kar2304 referred to above, wherein the decision of the full bench of the madras high court in basayya's case has been followed, it is clear that the limitation of 3 years for determination of mesne profits under order 20 rule 12 cpc., as held by the first appellate court, cannot be sustained and the same is liable to be set aside.17. learned counsel appearing for the respondent further submitted that even according to the compromise decree that was passed in the appeal, it was agreed that the application for determination of mesne profits should be made under order 20 rule 12 cpc., and wherefore, the application of provisions of order 20 rule 18 cpc., would not arise. there is no merit in this contention. it is clear from a perusal of the terms of the judgment and decree passed by this court in r.f.as.nos. 132/1964 and 137/1964, which have been culled out in para 2 of this order that the plaintiff was declared to be entitled to get his share of mesne profits from 'a' scheduled properties from 29.12.1959 till he is put in possession and the said decree passed by this court confirming the decree passed by the district judge, subject to the modification made in the decree passed by this court and it is clear from the decree that is passed by the district judge that the suit was decreed by declaring that the plaintiff is entitled to 1/4th share in the schedule properties and be put in possession of the same after partition by metes and bounds and to get accounts regarding his share from the date of suit till the date of possession. mere mentioning of the provisions under which the application for determination of mesne profits has to be made as order 20 rule 12 cpc., as per clause (c) of the order passed by this court would not mean that parties intended that the limitation prescribed under order 20 rule 12 cpc., would be applicable to parties regarding determination of mesne profits as it is clear from the clause (b) of the decree passed by this court that the plaintiff-appellant was held to be entitled to his share of mesne profits from 'a' schedule property from 29.12.1959 till he is put in possession and wherefore, the intention of the parties in making the application on the basis of which the decree is passed is that the plaintiff should get his share of profits from 'a' schedule properties from the date of suit 29.12.1959 till he is put in possession. it is well settled that mere fact that a wrong provision of law has been quoted would not disable the court from deciding the matter in substance when the intention of parties is clear as it is well settled that though an application is taken out under order 20 rule 12 cpc, still it does not necessarily mean that the application should be dealt with by the court only under that order and rule. if a mistake has been committed in mentioning a provision of law under which an application is made, it does not preclude the court from deciding the matter under the correct provision of law, namely, order 20 rule 18 as laid down by the madras high court in the case of ramaswami iyer v. a. subbaiar and anr. air 1997 madras 184 and in the case of d. nataraja achari v. balambal ammal reported in : air1980mad222 .18. learned senior counsel appearing for the appellant submitted that the trial court was not justified in holding that the determination of mesne profits should be restricted to the period from the date of suit till the date of application only as i.a. nos. 19 and 20 had been filed in view of the subsequent events that occurred after the dismissal of r.f.a. no. 76/1975 on 8.1.1981 and the said applications have been allowed and commissioner was appointed and possession has been subsequently delivered in june 1998 and therefore, the petitioner would be entitled to mesne profits from the date of suit to the date of handing over possession. there is force in this contention. on the other hand, the learned counsel appearing for the respondent submitted that in the application itself that it is stated that the determination of mesne profits is restricted to the period up to the date of filing the application and liberty to file application for determination of mesne profits thereafter, is reserved and wherefore, the question of determining mesne profits subsequent to the date of application, would not arise and wherefore, the finding of the lower appellate court does not call for interference. it is clear from a perusal of the material on record and final decree proceedings no. 6/1978 was field in view of the observations made in r.f.a. no. 76/1975 and thereafter, r.f.a. no. 76/1975 was dismissed on 8.1.1981 and in view of the subsequent event, the petitioner made an application in i.a. nos. xxix and xx for determination of mesne profits till the date of handing over possession and for appointment of commissioner for fixing income of properties for the period subsequent to the application and the said applications have been allowed without any objections of the respondent and commissioner has been appointed for determination of mesne profits and his report is submitted to the trial court. the decree pursuant to which the application for determination of mesne profits is field enables the plaintiff to recover mesne profits from the date of suit to the date of possession and wherefore, in view of the above said development that took place, after filing of the application for determination of mesne profits in final decree proceedings no. 6/1978 and allowing of applications, i.as. nos. xxix and xx, it is clear that the trial court was justified in holding that the plaintiff would be entitled to mesne profits form the date of suit to the date of possession and the lower appellate court was not justified in holding that mesne profits could not be determined beyond the date of application for final decree proceedings and wherefore, the finding of the first appellate court that the determination of mesne profits should be restricted till the date of filing of the application from the date of suit, cannot be sustained and the same is liable to be set aside and it is held that the plaintiff would be entitled to mesne profits from the date of suit i.e. 29.12.1959 to the date of possession as held by the trial court.19. it is clear from a perusal of the order passed by the first appellant court that the first appellate court has not gone into merits of the appeal regarding determination of the amount of mesne profits, to which the petitioner is entitled to or to find out as to whether determination of amount of mesne profit to which the petitioner is entitled to was justified having regard to the material on record as held by the trial court and the first appellant court merely on the basis of the finding that the award of mesne profits had to be restricted to 3 years and that the outer limit for awarding mesne profits in the present case would be the date of filing of the petition and has remitted the mater to the trial court. in view of the above said finding that the finding of the first appellant court that mesne profits could be awarded only for 3 years from the date of filing final decree proceedings in view of order 20 rule 12 cpc., and that the petitioner would be entitled to mesne profits only from the date of suit till the date of filing of the petition, is unsustainable. it is clear that the first appellate court being the final court on the question of fact has now to consider the appeal on merits regarding the actual determination of amount of mesne profits to which the petitioner is entitled to as per the decree of the trial court by finding out as to whether the mesne profits to which the petitioner is entitled to as per the decree of trial court is justified having regard to the material on record and wherefore, interest of justice requires that the mater be remitted to the first appellate court for consideration of the said question about the correctness of the order passed by the trial court regarding the amount of mesne profits and rate of interest to which the petitioner would be entitled to from the date of suit to the date of possession and accordingly, i answer the points for determination and pass the following order: -this appeal is allowed. the judgment and decree passed by the ii addl. district judge, tumkur, dated 31.7.2000 holding that the petitioner is entitled to mesne profits for a period of three years from the date of final decree in view of provisions of order 20 rule 12 cpc., and that the petitioner would be entitled to mesne profits from the date of suit till the date of petition, f.d.p. no. 6/1978 and remanding the matter to the trial court is set aside and it is held that the appellant-1st petitioner would be entitled to mesne profits from the date of suit i.e., 29.12.1959 till the date on which the petitioner was put in possession of the properties in question and the matter is remitted to the first appellant court to decide the appeal on merits regarding the question as to whether the amount of mesne profits arrived at and interest awarded thereon by the trial court to which the petitioner is entitled to is justified having regard to the material on record, the appellate court shall dispose of the appeal by considering the said question in accordance with law and dispose of the appeal as expeditiously as possible. no order as to costs in this appeal.