Research › Search › Judgment

Karnataka High Court · body

2005 DIGILAW 532 (KAR)

SMT. GOURAWWA v. HANUMAGOUDA BASAPPA KODIGOUDRA

2005-08-18

V.G.SABHAHIT

body2005
SABHAHIT, J. ( 1 ) THIS appeal by the plaintiff is directed against the judgment and decree dated 30. 11. 2002 passed in R. A. No. 76/99 on the file of the Additional Civil Judge (Sr. Dn.), Ranebennur, allowing the appeal and setting aside the judgment and decree dated 15. 10. 99 passed in O. S. No. 56/95 on the file of the Civil Judge (Jr. Dn.), Hirekerur, and consequently dismissing the suit of the plaintiff on the ground that it is barred under Order 2 Rule 2 CPC. ( 2 ) THE essential facts of the case leading up to this appeal with reference to the rank of the parties before the trial Court are as follows: the plaintiff filed O. S. No. 56/95 seeking for mesne profits of Rs. 15,000/- from the defendent with interest and costs. It is the case of the plaintiff that he had filed O. S. 2/77 against the defendant for declaration of his title in respect of the land bearing No. 137/a of Divigihalli village measuring 20 guntas assessed at 2. 20 p and for permanent injunction against the defendant. During the pendency of the said suit, he was dispossessed and the prayer for possession of the property was included in the plaint and the suit was decreed on 26. 6. 1986. The said judgment and decree was confirmed in R. A. No. 37/86 vide judgment dt. 6. 4. 1993 and in rsa No. 637/1993, appeals filed by the defendant. Thereafter, the plaintiff filed execution case no. 44/93 and obtained possession of the land on 4. 9. 1994 and thereafter, O. S. No. 56/95 was filed seeking for mesne profits from the defendant from 1968 to 4. 9. 1994 averring that the plaintiff is entitled to mesne profits from the defendant as the defendant was in possession of the property to which he was not entitled to and he has received the income from the property. It is further averred that the income of the property is more than Rs. 4,000/ -. Further, the plaintiff restricted his claim to mesne profits to Rs. 600/- per year from 1968 to 1994. e. for a period of 26 years which comes to Rs. 15,600/- and claimed mesne profits at Rs. 15,000/- from the defendant with interest and costs. It is further averred that the income of the property is more than Rs. 4,000/ -. Further, the plaintiff restricted his claim to mesne profits to Rs. 600/- per year from 1968 to 1994. e. for a period of 26 years which comes to Rs. 15,600/- and claimed mesne profits at Rs. 15,000/- from the defendant with interest and costs. The suit was resisted by the defendant denying the averment made in the plaint and contented that the plaintiff is not entitled to mesne profits as the said claim was not made in the earlier suit and wherefore, the suit claiming mesne profits is not maintainable in view of the provisions of order 2 Rule 2 CPC as the plaintiff did not make a claim for mesne profits while including the prayer for possession by amending the plaint in O. S. No. 2/97 and wherefore, when the said cause of action is common for both mesne profits and possession, a suit claiming only mesne profits is not maintainable when the same was not claimed in the earlier suit. He also averred that the plaintiff is not entitled to Rs. 15,000/- towards the mesne profits as claimed in the suit. The trial Court framed appropriate issues including the issue as to "whether the suit was barred under order 2 Rule 2 Code of Civil Procedure"? The plaintiff got himself examined as PW1 and also got examined PW2 and got marked documents exhibits P1 to P3. On behalf of the defendants, the defendant was examined as DW1 and he also examined DWs 2 and 3 and got marked documents D1 to D4. The trial Court after considering the contention of the parties and the material on record held that the suit was not barred by provisions of Order 2 Rule 2 as contended by the defendant and held that the plaintiff is entitled to mesne profits as sought for in the suit and accordingly, decreed the suit of the plaintiff for mesne profits of Rs. 15,000/- with interest at 10% p. a. from the date of the suit till realisation by its judgment dt. 15. 10. 1999. Being aggrieved by the said judgment and decree, defendant preferred R. A. No. 76/99 and the court of the Civil judge (Sr. dn.) Ranebennur, by judgment dt. 30. 11. 15,000/- with interest at 10% p. a. from the date of the suit till realisation by its judgment dt. 15. 10. 1999. Being aggrieved by the said judgment and decree, defendant preferred R. A. No. 76/99 and the court of the Civil judge (Sr. dn.) Ranebennur, by judgment dt. 30. 11. 2002, reversed the finding given by the trial court and held that the present suit is not maintainable under Order 2 Rule 2 CPC as the claim for mesne profits has not been claimed when the prayer for possession was included in the earlier suit OS. No. 2/77 and since cause of action for mesne profits arose to the plaintiff when she was dispossessed from the suit schedule property and the suit was barred under Order 2 Rule 2 and accordingly, held that the suit was not maintainable and accordingly, reversed the finding of the trial Court and dismissed the suit of the plaintiff vide judgment dt. 30. 11. 2002. Being aggrieved by the said judgment and decree, the plaintiff has preferred" this appeal which was admitted on 14. 2. 2003 for consideration of following substantial question of law: "whether the lower appellate court is right in rejecting the suit of the appellant on the grounf that the same is barred by Order 2 Rule 2 CPC?" ( 3 ) THE learned Counsel for the appellant submitted that the finding of the first appellate court that the suit is barred under Order 2 Rule 2 CPC is clearly erroneous. He further submitted that the cause of action for possession and mesne profits is not the same and even assuming that order 2 Rule 2 Code of Civil Procedure would be applicable, that would be in respect of the mesne profits prior to the decree passed by the trial Court and the entire claim could not have been dismissed as the fresh suit filed for mesne profits from the date of the decree to the date of delivery of possession is maintainable even though not claimed in the earlier suit for possession and is not barred by Order 2 Rule 2. He has relied upon the following decisions: i) Dhanakeerthiah v. Vimalappa, 1972 (2) KLJ 238 ii) Venugopal Pillai And Ors. He has relied upon the following decisions: i) Dhanakeerthiah v. Vimalappa, 1972 (2) KLJ 238 ii) Venugopal Pillai And Ors. v. Thirugnanavalli Ammal, AIR 1940 Madras 934 iii) Sris Chandra Nandy of Kasimbazar Represented By Manager, Kasimbasar Raj Wards Estate v. Joyramdanga Coal Concern Ltd Calcutta, (29) AIR 1942 Calcutta 40 wherein it is held that order 2, Rules 2 and 4 of Code of Civil Procedure clearly indicate that a claim for mesne profits would not be barred under Order 2 Rule 2 CPC ( 4 ) ON the other hand, the learned Counsel for the respondent submitted that admittedly the plaintiff did not make a claim for mesne profits while including the prayer for relief of possession in O. S. No. 2/77 and the said relief had to be included while claiming possession in o. S. No. 2/77 and wherefore, a separate suit for mesne profits is not maintainable. He further submitted that in any view of the matter, the plaintiff is not entitled to file the suit for mesne profits till the passing of the decree as the same had not been included in the earlier suit O. S. No. 2/77, the same is barred under Order 2 Rule 2 CPC. He has relied upon the decision of this Court in Venugopala and Ors. v. Vasantha Alias Subba Rao, 2003 (5) Kar.. 268 wherein this Court has held that "separate suit in respect of claim for period from date of decree till delivery of possession is maintainable and the fact that decree holder had not claimed mesne profit in original suit for recovery of possession is not reason for denying the claim from date of decree to delivery of possession". 268 wherein this Court has held that "separate suit in respect of claim for period from date of decree till delivery of possession is maintainable and the fact that decree holder had not claimed mesne profit in original suit for recovery of possession is not reason for denying the claim from date of decree to delivery of possession". ( 5 ) I have considered the contentions of the learned Counsel for the parties with reference to the material on record and I answer the substantial question of law partly in the negative in so far as it relates to dismissal of the suit for mesne profits from the date of the decree to the date of delivery of possession for the following reasons: the learned Counsel for the respondent has submitted that the plaintiff who could have sought for mesne profits in O. S. No. 2/ 77, has not sought for such a relief in the said suit while including the prayer for possession and therefore, the First Appellate Court has rightly held that the suit is barred under Order 2 Rule 2 CPC. I have considered the contentions of the Counsel for the parties with reference to the material on record and the principles laid down by this Court and also the decisions of the Madras and the Calcutta High Courts relied upon by the learned counsel for the appellant. It is clear from the perusal of the judgment passed by this Court in Dhanakeerthiah's case and venugopal Pillai's case that it is well settled that the cause of action for mesne profits from the date of the decree to the date of delivery of possession is different from the cause of action for possession. Mere fact that no mesne profits was sought for in the suit would not preclude the party from filing separate suit seeking mesne profits from the date of decree to the date of possession. Further, it has been clearly held by this Court in Venugopala and Ors. v. Vasantha alias Subba Rao (supra) as follows: "the defendants are persons who had suffered a decree for yielding possession. Further, it has been clearly held by this Court in Venugopala and Ors. v. Vasantha alias Subba Rao (supra) as follows: "the defendants are persons who had suffered a decree for yielding possession. Assuming that no claim was made for mesne profit, it does not mean that the plaintiff therein is prevented from putting forth a claim for use and occupation of the premises in respect of which he has obtained a decree and which properly continues to be used by the judgment debtor thereafter. The claim towards such use and occupation arises after the date of the decree and the decree gives the cause of action for making a claim of this nature. It consitutes new cause of action and as such the suit was quite tenable. If at all the plaintiff had not asked for mesne profit in the earlier suit to that extent the plaintiff had not asked for mesne profit in the earlier suit to that extent the plaintiff loses and it does not mesan the decree holder cannot seek for compensation for use and occupation of the premises of the land in respect of which he had obtained a decree from the judgment debtor subsequently also. The suit claim itself was based on the judgment and decree in favour of the plaintiff in the earlier round. The defendants being persons in possession of the property in respect of which they had suffered a decree in favour of the plaintiff and their possession subsequent to the decree being to the detriment of the decree holder to the extent that the judgment-debtor denied the decree holder of the use and occupation of the land, he is bound to compensate the decree holder. " ( 6 ) IT is clear from the aforesaid observations made by this Court that even if a claim for mesne profits has not been made in the suit, the suit for mesne profits from the date of the decree for possession till delivery of possession is not barred under Order 2 Rule 2 Code of Civil Procedure and wherefore, to that extent the finding of the first Appellate Court is contrary to the decision rendered by this Court in the above said decisions as the First Appellate Court has proceeded on the basis that since no claim was made in the suit for mesne profits while seeking possession, separate suit for mesne profits was not maintainable. The said finding may hold good only regarding the mesne profits prior to the date of the decree in view of the provisions of Order 2 rule 2 CPC. However, regarding mesne profits subsequent to the passing of the decree till the date of delivery of possession is concerned, the suit is clearly not barred under Order 2 Rule 2 cpc as held by this Court in the above said cases. To that extent the judgment and decree passed by the first appellate court in so far as it relates to the dismissal of the suit claiming mesne profits from the date of the decree till the date of delivery of possession is liable to be set aside. ( 7 ) LEARNED Counsel for the parties submitted that since the parties have already adduced evidence regarding mesne profits and even acording to the claim of the plaintiff he has restricted mesne profits at Rs. 600/- p. a. and has calculated mesne profits from 1968 to 1994, the decree for mesne profits may be passed on the basis of the material on record. It is clear from the averment made in the plaint itself that the plaintiff has restricted his claim regarding mesne profits at Rs. 600/ - per annum and having regard to the extent of land at 20 guntas, the same is reasonable and the trial Court has also decreed the suit on the basis of the mesne profits at the rate of Rs. 600/per annum and wherefore, it is clear having regard to the admitted facts of this case that the decree was passed on 26. 6. 1986 and possession was taken on 4. 9. 600/per annum and wherefore, it is clear having regard to the admitted facts of this case that the decree was passed on 26. 6. 1986 and possession was taken on 4. 9. 1994, the plaintiff would be entitled to mesne profits at Rs. 600/- per annum for eight years three months and 16 days. The same would come to Rs. 5,025/ -. The learned Counsel for the respondent submitted that interest at 10% awarded by the trial Court is excessive and reasonable interest may be awarded having regard to the prevalent rate of interest for the period mesne profits is awarded. Having regard to the prevalent rate of interest from 1986 to 1994, period for which plaintiff is entitled, it would be just and reasonable to award interest at 8% p. a. Accordingly, I hold that the plaintiff is entitled to decree for Rs. 5,025/- with 8% interest per annum from the date of the suit till the date of realisation. Accordingly, I pass the following order: appeal is allowed in part: The judgment and decree passed by the Additional Civil Judge (Sr. Dn.) Ranebennur, in RA No. 76/ 99 dt. 30. 11. 2002 dismissing the suit of the plaintiff is set aside and it is held that in modification of the judgment and decree passed by the court of the Civil judge (Jr. Dn.) Hirekerur in O. S. No. 56/95 Dt. 15. 10. 1999, the appellant is entitled to decree for rs. 5,025/- with interest at 8% p. a. from the date of the suit to the date of realisation, There shall be no order as to costs in this appeal.