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2009 DIGILAW 1492 (PNJ)

Avtar Singh v. Bhupinder Singh

2009-08-24

HEMANT GUPTA

body2009
JUDGMENT HEMANT GUPTA, J. (ORAL) - Defendant No.1 is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit of the plaintiff claiming mesne profits for unauthorized use and occupation of the premises in dispute from 1.8.1999 to 30.6.2002, was decreed. 2. The plaintiff has claimed mesne profits against the defendants having remained in unauthorized possession after the decree for possession was passed against the defendants. The defendants were in unauthorized possession from 1.6.1986 till 3.7.2002, when the possession of premises in dispute was delivered to the plaintiff in execution of decree for possession. The plaintiff claims mesne profits at the rate Rs.2000/- per month. 3. The stand of the defendant-appellant was that he has no concern with the shop in question nor was in possession over the same. He is serving in Punjab State Electricity Board, therefore, question of doing the business of cloth merchant does not arise at all. 4. Bhupinder Singh, deceased son of Sant Singh-plaintiff, appeared as PW-1 and tendered his affidavit Ex.PW-1/A. Primarily reliance of the plaintiff to claim mesne profits is on judgment Ex.P-1 rendered by the Addl. Civil Judge (Sr. Dn.), Fatehgarh Sahib, on 30.11.2000, holding that plaintiff is entitled to mesne profits at the rate of Rs.700/-per month from 2.3.1990 to 2.3.1993. The said judgment was affirmed in appeal. In execution of the said judgment, the appellant has satisfied the decree as well. The Court has increased damages for use and occupation from Rs.700/-per month to Rs.1000/-per month on account of passage of time. 5. Learned counsel for the appellant has vehemently argued that the appellant has no concern with the tenant i.e. M/s Gurbachan Singh Avtar Singh. The appellant cannot be made liable for the mesne profits only because he happens to be son of one of the partners of the aforesaid firm. In fact, the appellant is stated to be an employee of Punjab State Electricity Board and has no concern with the firm or the occupation of the shop in dispute. 6. The plaintiff's suit for recovery of mesne profits for the period from 2.3.1990 to 2.3.1993, was decreed on 30.11.2000. In the said suit, the plaintiff has claimed mesne profits from 1.6.1988 to 28.2.1993, but since the suit was filed on 2.3.1993, the mesne profits for a period of more than 3 years was found to be barred by limitation. 6. The plaintiff's suit for recovery of mesne profits for the period from 2.3.1990 to 2.3.1993, was decreed on 30.11.2000. In the said suit, the plaintiff has claimed mesne profits from 1.6.1988 to 28.2.1993, but since the suit was filed on 2.3.1993, the mesne profits for a period of more than 3 years was found to be barred by limitation. The defendant-appellant while appearing as witness, has admitted the factum of the decree so granted and also the fact that he has paid the decretal amount. The findings recorded in the said judgment that the appellant is liable to pay mesne profits on account of use and occupation of a shop in dispute, has attained finality. In pursuance of the execution of the said decree, the salary of the appellant was attached and decretal amount recovered. The issues in the aforesaid suit operate res-judicata as the issues in the present suit were decided in the earlier suit as well. The claim in the present suit is for a subsequent period and the learned first Appellate Court has accepted the same at a higher rate than what was granted in the previous suit. The increase in the mesne profits is due to passage of time. There is no reason to hold that such increase is unjustified or untenable. 7. After arguments were heard and the judgment reserved, the appellant has filed an application for additional evidence, so as to produce, rent deed and the copies of the judgments in the previous suit. 8. Even if the said documents are taken into consideration, the result of the appeal does not change. A perusal of the judgment dated 18.1.1982 shows that the plaintiff's suit for redemption was dismissed as it was found that suit for possession by way of redemption and suit for possession on the basis of title are different. In further appeal before this Court, the suit for possession by way of redemption was dismissed as from the statement of the mortgagee, it was found that the entire mortgage amount has been paid. The stand of defendant No.1 in the aforesaid suit was that it was inducted as a tenant prior to mortgage. 9. Subsequently, the suit for possession filed by the plaintiff-Sant Singh was decreed on 22.7.1986 vide Ex.R-1. The appeal against the said judgment was dismissed on 16.4.1987. The stand of defendant No.1 in the aforesaid suit was that it was inducted as a tenant prior to mortgage. 9. Subsequently, the suit for possession filed by the plaintiff-Sant Singh was decreed on 22.7.1986 vide Ex.R-1. The appeal against the said judgment was dismissed on 16.4.1987. The second appeal i.e. RSA No.1998 of 1987 before this Court stands dismissed on 11.3.2002. The suit for recovery of mesne profits stands decreed vide judgment and decree dated 30.11.2000. In the previous proceedings the mesne profits have been granted and paid by the appellant, therefore, the reliance of the appellant on the aforesaid documents does not necessitates any change in the findings recorded. 10. Consequently, I do not find that any substantial question of law arises for consideration of this Court. Dismissed