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2007 DIGILAW 273 (CHH)

RUDRA SINGH v. HARISH CHAND AGHARIYA

2007-04-16

D.R.DESHMUKH

body2007
JUDGMENT 1. Being aggrieved by the judgment and decree dated 21-9-2001, passed in Civil Appeal No.8A/2001 by the IInd Additional District Judge, Mahasamund. reversing the judgment and decree passed by the 1st Civil Judge Class-1 Mahasamund in Civil Suit No,8A/93 on 10.11-2000, the appellants/defendants have preferred this second appeal. 2. Admittedly, Keshavram and Dharam are the sons of Baldhar, who owned the suit property. On death of Haldhar, there was a partition between Keshavram and Dharam, in which the suit property, i.e. land in area 8.186 hectares, situated in Village Jamher, Patwari Halka.No.2l; Revenue Circle Pithoura, Tahsil and District Mahasamund (hereinafter referred to as the suit property') fell to the share ofKeshavram and he got it mutated ill his name. In the year 1992,Keshavram and his wife died leaving behind sons Barish Chand, respondent No.1/plaintiff and Rudra Singh, appellant/defendant No.1; Appellant/defendant No.2 is the wife and the. appellants/defendants No.3,4 and 5 are the sons of Rudra Singh. Appellants No.7 to 14 are the purchasers of the, suit 'property from appellants No.1 to 5 and are in possession there of. 3. The suit of respondent No.1 /plaintiff was founded on the pleading that Keshavram did not execute any Will on 26-8-1991 in favour" of Rudra Singh and cause of action for filing the suit for declaration, partition and mesne profits arose in his favour when Rudra Singh started mutation proceedings on the basis of the Will dated 26-8-1991 executed by Keshavram. 4. The appellants/defendants No.1 to 5 resisted the suit on the basis of the Will executed by Keshavram in favour- of Rudra Singh, the appellant/defendant No.1 on 26-8-1991. It was pleaded that they acquired title over the suit property on the basis of the Will and therefore, they could confer valid title to defendants No.7 to 15 by executing several registered sale-deeds of the suit property. 5. The appellants/defendants No.7 to 15 pleaded that in the year 1988, Keshavram had partitioned his properties between his two sons, namely, Rudra Singh and Harish Chand, wherein the suit property fell to the share of Rudra Singh, who was in sole possession there of. After the execution of the sale-deed by the appellants/defendants No.1 to 5 in their favour in the year 1995-96, by registered sale-deeds the appellants/defendants No.7 to 15 acquired title and were in cultivating possession of the suit property 6. After the execution of the sale-deed by the appellants/defendants No.1 to 5 in their favour in the year 1995-96, by registered sale-deeds the appellants/defendants No.7 to 15 acquired title and were in cultivating possession of the suit property 6. The learned trial Court dismissed the suit on the basis of a mere assumption recorded in para 24 that probably in the year 1988, a partition took place between Rudra Singh and Harish Chand and thereafter Harish Chand was never in possession of the suit property. However, it recorded a finding that execution of Will by Keshavram in favour of Rudra Singh was not proved. 7. Aggrieved by the judgment and decree passed by the learned trial Court, respondent No.1/plaintiff preferred first appeal before the Additional District Judge, Mahasamund. The First Appellate Court affirmed the finding recorded by the lower Court that execution of Will by Keshavram in favour of Rudra Singh on 268-1991 was not proved and that the said document was void and ineffective. However, it reversed the finding regarding partition on the ground that the appellants/ defendant, No.1 to 5 herein did not plead the fact of an oral partition in the year 1988 in the written statement and such a pleading was raised only by the purchasers, i.e., the appellants/defendants No.7 to 15 herein. On appreciation of evidence also, it reversed the finding that an oral partition took place between Rudra Singh and Harish Chand in the year 1988, wherein the suit property fell to the share of Rudra Singh. On these premises, the First Appellate Court decreed the suit in favour of respondent No.1/plaintiff herein for a declaration that both respondent No.1/plaintiff Harish Chand and the appellant/defendant No.1, Rudra Singh were the owners of 1/2 share of the suit property and, therefore, the sale-deed of the entire suit property executed by the appellants/defendants No.1 to 5 in favour of the appellants/defendants No.7 to 15 did not affect the title of respondent No.1/plaintiff herein over his share, i.e., 1/2 of the suit property. It further declared that respondent No.1/plaintiff herein was entitled to 1/2 share of the suit property and possession thereof after partition. Mesne profits against the appellants/defendants No.1 to 5 herein for Rs.15,000/- were awarded and thereafter at the rate of Rs.15,000/- per year were awarded against the appellants/defendants No.7 to 5 herein. 8. It further declared that respondent No.1/plaintiff herein was entitled to 1/2 share of the suit property and possession thereof after partition. Mesne profits against the appellants/defendants No.1 to 5 herein for Rs.15,000/- were awarded and thereafter at the rate of Rs.15,000/- per year were awarded against the appellants/defendants No.7 to 5 herein. 8. I he second appeal was admitted on the following substantial questions of law :- “1. Whether the learned lower appellate Court was justified in reversing the well reasoned finding of the trial Court that there was partition in the joint family in the year 1988 and in the said partition the suit property fell in the share of defendant No.1 ? 2. Whether the learned lower appellate Court was justified in awarding mesne profit at the rate of Rs. 15,000/- per annum for the year 1994-95 from defendant Nos. 1 to 5 and mesne profit at the rate of Rs. 15,000/- per annum for the year 1995-96 till delivery of possession after partition from defendant Nos. 7 to 15 ? 3. Whether the above finding is contrary to oral and documentary evidence available on record and as such perverse?" 9. Shri Awadh Tripathi, learned counsel for the appellants/defendants conceded during arguments that he would not assail the finding recorded by both the Courts below relating to execution of Will by Keshavram in favour of Rudra Singh on 26-8- 1991 and also the finding recorded by the First Appellate Court that oral partition in the year 1988 between Rudra Singh and Harish Chand was not established and would confine his challenge to the impugned order only on the question of mesne profits. It is, therefore, not necessary for me to dwell upon the substantial question No.1 mentioned above in this judgment. I would, therefore, confine myself only to the question of mesne profits. 10. The First Appellate Court, on appreciation of evidence, has recorded' a finding that the yield from the suit property per year was about 100 bags of paddy. It is, therefore, not necessary for me to dwell upon the substantial question No.1 mentioned above in this judgment. I would, therefore, confine myself only to the question of mesne profits. 10. The First Appellate Court, on appreciation of evidence, has recorded' a finding that the yield from the suit property per year was about 100 bags of paddy. On this basis, since respondent No.1/plaintiff herein was not in possession of the suit property, calculating the 1/2 share of the 'respondent No. 1/plaintiff herein at 50 bags per year and the value thereof at the rate of Rs.300/-it has awarded mesne profits at the rate of Rs.15,000/-per year against the appellants/defendants No.1 to 5 till 1994-95 and thereafter by the purchasers, i.e., the appellants/defendants No.7 to 15. 11. The claim for mesne profits is virtually a claim for damages. There is no rigid rule for determining the amount of mesne profits and it has to be assessed by a proper exercise of judicial discretion. Where the plaintiffs had led evidence regarding mesne profits, it was not necessary to order a separate enquiry as contemplated by Order 20 Rule 12(1)(c) of the Code of Civil Procedure The test for awarding mesne profits is not what the plaintiff has lost by his exclusion, but what the defendant has, or might reasonably have, made by his wrongful Possession. In such a case, the cultivation profits would be the primary consideration and not the gross yield from the agricultural land. The true test for assessing mesne profits is what an ordinary prudent agriculturist would have grown:- 12.The entitlement of respondent No./plaintiff to mesne profits cannot be questioned in the facts and circumstances of the case. Respondent No.1/ plaintiff Harish Chand stated in paragiaph 3 of his deposition that the total yield from the suit property was 200 bags of paddy, but admitted in cross-examination, at paragraph 10, that the total yield was only 100 bags of paddy every year. Relying upon the admission of respondent No.1/plaintiff the First Appellate Court has assessed the total yield from the suit property at 100 bags of paddy every year but overlooked the fact that 50% of the total yield needs to be deducted towards expenses as narrated by Harish Chand, P.W.1, Samaru P.W2 and Dharamsingh P.W 3. Relying upon the admission of respondent No.1/plaintiff the First Appellate Court has assessed the total yield from the suit property at 100 bags of paddy every year but overlooked the fact that 50% of the total yield needs to be deducted towards expenses as narrated by Harish Chand, P.W.1, Samaru P.W2 and Dharamsingh P.W 3. In this way of the matter the net yield from the suit property every year, from which the respondent No.1/Plaintff was deprived of ought to have been assessed at 50 bags per year. Deducting there from 1/2 share of, respondent No.1/plaintiff, the mesne profit ought to have been assessed on the, basis of the value of 25 bags of paddy every year, which would come to (25x Rs.300/- =) Rs.7,500/-. The First Appellate Court, without deducting the expenses assessed the net yield, which would have fallen to the share of respondent No.1/ plaintiff at 50 bags of paddy, which was not correct. It is, therefore, held that the net yield, which would have fallen to the share of respondent No.1/plaintiff from the suit property every year, were 25 bags of paddy, valued at Rs.7,500/-. Substantial question No.2 is, therefore, answered that the learned Lower Appellate Court ought to have awarded mesne profits at the rate of Rs.7,500/- per annum for the year 1994-95 from the appellants/defendants No.1 to 5 and at the rate of Rs.7,500;. for the year 1995-96 till delivery of possession from the appellants/ defendants No.7 to 15. 13. In the result, this appeal is partly allowed. The judgment and decree passed by the First Appellate Court dated 21-9-2001 is modified only to the extent of quantum of mesne profits, which are reduced from Rs.15,000/- to Rs.7,500/- per year. There shall be no order as to costs. Appeal Partly Allowed.