Research › Search › Judgment

Andhra High Court · body

2014 DIGILAW 747 (AP)

Hyder Valli v. G. Venkatramana

2014-06-18

M.SEETHARAMA MURTI

body2014
JUDGMENT M. Seetharama Murti, J. 1. The unsuccessful defendants had preferred this Second Appeal assailing the decree and judgment dated 24.03.2008 of the learned II Additional District Judge, Madanapalle of Chittoor District, made in A.S. No. 15/2007 whereby the learned Additional District Judge, while partly allowing the said First Appeal had partly set aside the judgment and decree dated 30.11.2006 of the learned Junior Civil Judge, Thamballapalle, made in OS. No. 24/2003 filed for declaration of title of the plaintiffs and other reliefs in respect of land in an extent of Ac.1.50 cents out of Ac.6.70 cents of land in Survey No. 484/1 of Boorlapalli village, which is more fully described in the schedule annexed to the plaint. At the time of the admission of the Second Appeal, this Court had taken note of the substantial questions of law mentioned in the grounds 1 and 2 and the said substantial questions of law as mentioned in the grounds of objection read as follows: "(1) Whether both the trial Court and the 1st Appellate Court committed grave error in ignoring the admission of Respondent/Plaintiff about the title of Mushkin Saheb who got it exchanged under Ex. B1 with G. Venkatramanappa? If so, whether Mushkin Saheb retained title to sell it under Ex. A6 to Respondents/Plaintiffs? (2) Whether Respondents/Plaintiffs derive title from Mushkin Saheb after exchange with G. Venkatramanappa under Ex. B1 in 1951 to sell it to Plaintiffs under Ex. A6 in 1964? Whether the son of G. Venkatramanappa's sale in favour of Appellants/Defendants under Ex. B3 binds Respondents/Plaintiffs? (Reproduced verbatim)" 2. I have heard the submissions of the learned counsel for both the sides. I have perused the material record. 3. For adjudication of the lis and to answer the substantial questions of law, it is necessary to refer to the facts and other allied aspects. 4. The respondents/plaintiffs (for short 'the plaintiffs') filed the suit originally for a perpetual injunction in respect of two items of the plaint schedule property. Later, the amendment of the plaint was sought, and in the amended plaint the plaintiffs sought the relief of declaration of title only in respect of second item i.e., Ac. 4. The respondents/plaintiffs (for short 'the plaintiffs') filed the suit originally for a perpetual injunction in respect of two items of the plaint schedule property. Later, the amendment of the plaint was sought, and in the amended plaint the plaintiffs sought the relief of declaration of title only in respect of second item i.e., Ac. 1.50 cents out of Ac.6.70 cents land in Survey No. 484/1 of Boorlapalli village and a consequential perpetual injunction or in the alternative recovery of possession of the said land along with the bore well said to have been installed by the plaintiffs in the said land. 5. The case of the plaintiffs, in brief, is as follows: "The plaint schedule property and other properties originally belonged to one Venkatramana and his family members; after his demise in the year 1925, his wife Vemakka and their daughter Narayanamma had succeeded to his estate; during her life time the said Vemakka had executed a registered a Will dated 21.04.1942 in respect of her properties giving life interest to her grand daughter and vested remainder rights to her great grand children; the plaintiffs are the great grand son and great grand daughter respectively of the Ramalakshmamma; the plaintiffs had purchased the schedule property and other property from Mushkin Saheb under a registered sale deed dated 02.11.1964 and were and are in possession and enjoyment of the same; they had got dug up a bore Well in the plaint schedule property. The defendants without having any manner of right, title and interest in the schedule property had threatened to dispossess the plaintiffs from the said property. The defendants without having any manner of right, title and interest in the schedule property had threatened to dispossess the plaintiffs from the said property. Therefore, the plaintiffs are constrained to approach the Court for appropriate reliefs." On the other hand, the case of the defendants is that they had purchased Ac.3.55 cents out of Ac.6.70 cents in Survey No. 484/1 under a registered sale deed dated 24.04.2000 from its rightful owner G. Sreeramulu, and that the father of the said Sreeramulu had originally purchased/got the said property from Mushkin Saheb under a registered exchange deed dated 24.07.1951, and that he (father of Sreeramulu) had taken possession of the same, and that the defendants have got dug up a bore Well in the said land and had got fixed an electric motor to the said bore Well, and that the remaining extent of Ac.3.35 cents in the above said survey number belongs to the family of P. Obul Reddy, and that the defendants are not concerned with the said property or with the item No. 1 of the plaint-schedule land in survey No. 483/1, and that therefore, the plaintiffs have no right, title and possession over the plaint schedule property." 6. As already noted, after full-fledged trial the trial Court had decreed the suit of the plaintiffs as prayed for. However, the Court of First Appeal while partly dismissing and partly allowing the First Appeal and while confirming the decree for declaration of title and recovery of possession of the plaint schedule land in favour of the plaintiffs, had partly modified the decree of the trial Court by stating that the plaintiffs are entitled to recover the plaint schedule property without the bore Well as the bore Well was installed not by the plaintiffs, but by the defendants. Therefore, the aggrieved defendants are before this Court. 7. (a) This Court had already taken note of the two substantial questions of law raised in the grounds of objection. 7. Therefore, the aggrieved defendants are before this Court. 7. (a) This Court had already taken note of the two substantial questions of law raised in the grounds of objection. 7. (b) The learned counsel for the defendants had contended as follows: "The Court of First Appeal had committed a grave error in ignoring the admission of the plaintiffs about the title of Mushkin Saheb and that the trial Court had failed to consider that the said Mushkin Saheb had not retained title to sell it under Exhibit A6 to the plaintiffs, after the exchange of lands by Mushkin Saheb with G. Venkatramanappa under Exhibit B1 in the year 1951. The plaintiffs are not entitled to claim any title to the property and that the sale under Exhibit B3 in favour of the defendants binds the plaintiffs, and that in view of the substantial questions of law raised and taken note by this Court at the time of the admission of this second appeal, the judgment of the Court of First Appeal is liable to be set aside." Further, the learned counsel for the appellants/defendants had inter alia contended as under: "Though by the year 1951 i.e., at the time of exchange, Mushkin Saheb had no title to the property that was exchanged from his side, he had subsequently acquired title to the property in the year 1952 by virtue of a sale deed dated 02.01.1952, and that therefore, in view of the provision of Section 43 of the Transfer of Property Act, the title to the property that was given by him in exchange had passed later on to Mushkin Saheb, and that therefore the title that had passed to Mushkin Saheb inured to the benefit of G. Venkataramana the transferee under the deed of exchange and that under facts and in law valid title had thus accrued to G. Sreeramulu S/o late Venkataramana, and that the said rightful owner had executed a registered sale deed dated 24.04.2000 in favour of the father of the defendants, and that therefore, the defendants who are the lawful owners of the schedule property are entitled to succeed in the Second Appeal." 7. (c) The learned counsel for the plaintiffs/respondents herein while supporting the decree and judgment of the trial Court had inter alia contended that there is no foundation in the pleadings of the defendants based on the provision of Section 43 of the Transfer of Property Act, and that there is no pleading on the said aspect in the defence of the defendants and that no grounds of objections based on the provision of Section 43 of the said Act were also raised in the present grounds of appeal, and that the said contention is also not a part of the substantial questions of law now raised and that the said contention being a mixed question of fact and law cannot be permitted to be raised without any foundation either in the defence or in the grounds of objection filed before this Court. It was further submitted that no fresh contentions, much less contentions without a foundation in the pleadings, shall be permitted to be raised in a second appeal as the scope and ambit of the provision of section100 of the Code of Civil Procedure is very limited. 8. (a) In a suit of injunction for declaration of title, the legal burden, which never shifts is always on the plaintiffs. In order to prove the title of the plaintiffs, the plaintiffs have filed and had relied upon Exhibits A1, A2 and A4. Exhibit A1 is the registered sale deed dated 24.06.1909; Exhibit A2 is the usufructuary mortgage deed dated 21.04.1942; and Exhibit A4 is the usufructuary mortgage deed dated 11.12.1944. And both the documents A2 and A4, which are mortgage deeds, contain discharge endorsements respectively. Under Exhibit Al, the ancestors of the plaintiffs have purchased the schedule property along with the other property as early as in the year 1909 is not in dispute. The said document is more than 30 years old. Both the Courts below have consistently and concurrently held that the execution of the said document is proved and cannot be disputed. Exhibits A2 and A4 are registered usufructuary mortgage deeds said to have been executed by the ancestor of the plaintiffs in respect of the schedule property and other properties. The said document is more than 30 years old. Both the Courts below have consistently and concurrently held that the execution of the said document is proved and cannot be disputed. Exhibits A2 and A4 are registered usufructuary mortgage deeds said to have been executed by the ancestor of the plaintiffs in respect of the schedule property and other properties. The mortgage debt under Exhibit A4, Usufructuary mortgage deed, was discharged and the discharge endorsement finds a place at the bottom of page 2 of the said document showing that the said mortgage debt was discharged on 12.01.1948. When the plaintiffs were minors, their guardians representing them had executed Exhibit A5, the sale deed dated 02.01.1952 in respect of the plaint schedule property and other property and had alienated the said properties in favour of Mushkin Saheb. The registration extract of the said sale deed is Exhibit A5. After the purchase of the above property under the original of Exhibit A5, the said Mushkin Saheb had mortgaged the said property by executing Exhibit A16 deed dated 16.12.1952. The said mortgage debt was discharged and the said fact is evident from the content of the original of Exhibit A7. As per Exhibit A17, the said Mushkin Saheb had mortgaged the schedule property to one Alli Sab on 12.06.1960. Exhibit A6 is the registration extract of sale deed dated 02.11.1964 whereunder the very same Mushkin Saheb had sold the schedule property along with other properties to the plaintiffs. So, these documents, the details of which are referred to supra, lay bare that the plaintiffs are the owners of the schedule property, particularly, by virtue of Exhibit A6. However, the defence of the defendants is that the father of their vendor i.e., the father of the vendor of the defendants under Exhibit B3 sale deed dated 24.04.2000 had acquired the schedule property along with other properties by way of exchange of properties between him and Mushkin Saheb that is by virtue of the registered exchange deed dated 24.07.1951, and that after the demise of the father of the vendor of the defendants, the vendor of the defendants had succeeded to the said property, and that the said vendor had sold the plaint schedule property along with other property under the registered sale deed dated 24.04.2000 i.e., under Exhibit B3 to the defendants. Thus, according to the defendants, the father of their vendor had acquired title to the plaint schedule property by virtue of an exchange deed dated 24.07.1951, a copy of which is marked as Exhibit B1. 8. (b) Thus, according to the defendants under the original of Exhibit B1 dated 24.07.1951, Mushkin Saheb had exchanged the plaint schedule property as if he is the owner of the said property as on that date. Under the said exchange deed the plaint schedule property was given by way of exchange to the father of the vendor of the defendants. But, the fact remains that Mushkin Saheb, who was a mortgagee, having received the debt amount due to him made a discharge endorsement on 12.01.1948 at page No. 2 of Exhibit A4 evidencing the discharge of mortgage in respect of the schedule property created in his favour on 11.12.1944. Therefore, even by the year 1948 the Usufructuary mortgage debt in favour of Mushkin Saheb was discharged. Therefore, Mushkin Saheb had no right whatsoever over the schedule property even by 12.01.1948. However, without having any right, title and interest over the plaint schedule property, he gave that plaint schedule property in exchange along with other property under Exhibit B1 exchange deed dated 24.07.1951 to the father of the vendor of the defendants. Therefore, when Mushkin Saheb himself had no right over the schedule property by 12.01.1948, he could not have given that property in exchange to the father of the vendor of the defendants by executing the exchange deed under the original of Exhibit B1. However, when the plaintiffs were minors, their guardians have executed the said sale deed dated 02.01.1952 in respect of the plaint schedule and other properties, under the original of Exhibit A5 in favour of Mushkin Saheb. Therefore, the defendants now contend for the first time in this matter that the said Mushkin Saheb who admittedly became the owner of the plaint schedule property by virtue of sale deed dated 02.01.1952 had got valid title to the property and that therefore, even if he had no title to the property by the date of Exhibit B1 (i.e., 24.07.1951) still the title acquired by him in the year 1952 under the original of Exhibit A5 sale deed inures for his benefit and also for the benefit of the transferee/exchange under Exhibit B1 dated 24.07.1951. Therefore, the defendants would contented that the Mushkin Saheb had no right to sell the plaint schedule property and other properties to the plaintiffs on 02.11.1964 by virtue of a sale deed, the registration extract of which is Exhibit A6. Thus, both the parties admit that by the year 1952 by virtue of the original of Exhibit A5 sale deed dated 02.01.1952 Mushkin Saheb became the owner of the property. 8. (c) Coming to the validity and acceptability or otherwise of the contention of the defendants/appellants, their contention may first be restated as follows: "By the year 1951 Mushkin Saheb had no right over the plaint schedule property. However, he had given the same in exchange to the father of the vendor of the defendants by virtue of a deed of exchange Dated 24.07.1951. The copy of the said exchange deed is Exhibit B1. However, Mushkin Saheb had purchased the very same property later in the year 1952. Though Mushkin Saheb had no title to the property in the year 1951 and therefore, he was not capable of giving the said property in exchange in the year 1951, subsequently, he had acquired title to the said property in the year 1952 by virtue of a sale deed dated 02.01.1952 executed by the guardians of the plaintiffs when the plaintiffs were minors. Therefore, by virtue of the subsequent sale deed obtained by Mushkin Saheb in respect of the very same property, the said Mushkin Saheb had acquired valid title and interest in the property exchanged. Hence, pursuant to the statutory principle contained in the provision of Section 43 of the Transfer of Property Act, it shall be treated that the said Mushkin Saheb had valid title to the property that was given in exchange in the year 1951 by him and, therefore, the person who had obtained the very same property in the year 1951 by way of exchange from Mushkin Saheb had got valid title to the property in his turn in view of the principle enshrined in the doctrine of 'feeding the grant by estoppel". 8. (d) The above contention of the defendants/appellants cannot be countenanced in this second appeal for the following among other reasons: "Firstly: The said contention was raised for the first time in the Second Appeal and is a fresh contention. 8. (d) The above contention of the defendants/appellants cannot be countenanced in this second appeal for the following among other reasons: "Firstly: The said contention was raised for the first time in the Second Appeal and is a fresh contention. Hence, the said contention being a fresh contention cannot be permitted to be raised in the second appeal. Secondly: The said contention not being a pure question of law and being a mixed question of fact and law cannot be permitted to be raised in this second appeal. Thirdly: The contention is not part of a defence in the written statement of the defendants 1 and 2. There is no factual foundation in the defence pleaded. Further, the said contention was also not specifically raised in the grounds of objection. No substantial question of law was formulated and stated in the grounds of objection urged in the second appeal. Therefore, the contention is not only a fresh contention raised for the first time in this second appeal but also is a contention without any factual foundation. Therefore, when such contention was not raised in the defence and when no issue was framed and when there is no opportunity to the plaintiffs to meet the said contention, it is impermissible under facts and law for the defendants to raise the said contention for the first time in this second appeal. Fourthly: Admittedly, Mushkin Saheb, Son of Hyder Saheb, is a Muhammadan. Section 43 of the Transfer of Property Act appears in Chapter II of the said Act. Section 2 of the said Act, which deals with Repeal of Acts and saving of certain enactments, incidents, rights, liabilities etc., reads as follows: 2. Repeal of Acts.--Saving of certain enactments, incidents, rights, liabilities, etc.--In the territories to which this Act extends for the time being the enactments specified in the Schedule hereto annexed shall be repealed to the extent therein mentioned. Repeal of Acts.--Saving of certain enactments, incidents, rights, liabilities, etc.--In the territories to which this Act extends for the time being the enactments specified in the Schedule hereto annexed shall be repealed to the extent therein mentioned. But nothing herein contained shall be deemed to affect-- (a) the provisions of any enactment not hereby expressly repealed; (b) any terms or incidents of any contract or constitution of property which are consistent with the provisions of this Act, and are allowed by the law for the time being in force; (c) any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability; or (d) save as provided by Section 57 and Chapter IV of this Act, any transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction, and nothing in the second Chapter of this Act shall be deemed to affect any rule of 3[***] Muhammadan 4[***] law. As per the said provision of law, nothing in the second Chapter of the Act shall be deemed to affect any rule of Muhammadan law. Therefore, the provision of Section 43 will not inure for the benefit of Mushkin Saheb who is admittedly a Muhammadan. Therefore, when he has no right, title and interest in the plaint schedule property by the year 1951, in which year he had exchanged the plaint schedule property without any manner of right, it follows that by virtue of Section 43 of the Transfer of Property Act, which is inapplicable to Muhammadans, he cannot be heard to say that the valid title which he had acquired in respect of the plaint schedule property in the year 1952 would inure for his benefit and validate the transaction of exchange in the year 1951. As a sequel, it must be held that the benefit of principle of law enunciated in Section 43 of the Transfer of Property Act will be of no avail to the defendants who are claiming through Mushkin Saheb. As a sequel, it must be held that the benefit of principle of law enunciated in Section 43 of the Transfer of Property Act will be of no avail to the defendants who are claiming through Mushkin Saheb. However, the learned counsel for the defendants/appellants would contend that Section 2 of the Act only says that 'nothing in the second Chapter of the Act shall be deemed to affect any rule of Muhammadan law' and therefore, it does not follow that the general rules in Chapter II cannot apply to transfers made by Muhammadans and that it shall be construed that where there is no inconsistent rule of Muhammadan law, the Sections in Chapter II apply proprio vigore but when there is an inconsistent rule, the Sections in the said Chapter do not apply. However, he could not point out from the rules of Muhammadan Law, any legal position in support of the contention that the provision of Section 43 of the Transfer of Property Act is not inconsistent with any rule of Muhammadan Law. Be that as it may. Fifthly: Assuming for a moment that Section 43 of the Transfer of Property Act can be invoked even by a Muhammadan like Mushkin Saheb, the defendants must establish that the necessary facts for Calling in aid the principle in the doctrine of feeding the grant by estoppel do exist in the case on hand and that the preconditions required for invoking the benefit of the said provision of law are satisfied. To avail the benefit of the provision of law under Section 43 of the Transfer of Property Act the defendants have to satisfy certain pre-conditions and also the existence of the facts relevant to the ingredients of the section of law. In this regard, it is necessary to refer to the provision of law in Section 43 of the Act, which reads as follows: "43. Transfer by unauthorised person who subsequently acquires interest in property transferred.--Where a person [fraudulently or] erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option." A plain reading of the above provision of law shows that the doctrine incorporated in the provision of law may apply when there is a fraudulent or erroneous representation by the transferor that he is authorised to transfer the property. Further, the transferee must act upon such representation. The doctrine will not apply when the transferee knows the truth that the transferor is not entitled to transfer the property. There is neither pleading nor evidence to satisfy the aforementioned requirements enunciated in the provision of law. Since the contention based on the above provision of law was not pleaded, no issue was framed and no evidence was adduced. Thus the present submissions based on the above said provision of law which do not have a foundation in the defence do not warrant consideration. In the absence of pleading and proof as required under law, the defendants/appellants are not entitled to place reliance on the provision of law. Further, whenever the ingredients under Section 43 of the Transfer of Property Act are found to exist, and upon the transferor acquiring interest in the property transferred earlier without interest, there springs into existence an option for the transferee to have the transfer operate on such newly acquired interest. That option accrues to the transferee proprio vigore and not by anything he has to do. The transferee has an option to claim or not to claim the benefit. Therefore, unless the option is exercised, the newly acquired interest does not automatically pass. This option should be exercised during a period in which the contract of transfer subsists. In the case on hand, there is no pleading and proof of this requirement as well. Above all, after acquiring the title to the plaint schedule property in the month of January of 1952, the said Mushkin Saheb had once mortgaged the property under the deed of mortgage dated 16.12.1952. The said mortgage debt was discharged by him. He had again mortgaged the property to one Ali Sab on 12.06.1960. These facts are borne out by the record. Later he had again conveyed the property to the plaintiffs by virtue of a registered sale deed dated 02.11.1964. The copy of the said sale deed is exhibited as Exhibit A6. The said mortgage debt was discharged by him. He had again mortgaged the property to one Ali Sab on 12.06.1960. These facts are borne out by the record. Later he had again conveyed the property to the plaintiffs by virtue of a registered sale deed dated 02.11.1964. The copy of the said sale deed is exhibited as Exhibit A6. The above acts of Mushkin Saheb and his conduct in twice mortgaging the property and in again conveying the property by sale of the property to the plaintiffs would make it manifest that the transferee under the exchange deed of the year 1951 did not exercise the option and had not claimed the benefit as contemplated under law. As a sequel to the said events it follows that Mushkin Saheb who had acquired the property in the year 1952 had dealt with the property as his own and had exercised all rights of ownership and had thus retained title to the property till he had conveyed it to the plaintiffs under the original of Exhibit A6, i.e., the sale deed of the year 1964. Therefore, judged from any angle the submissions advanced for the first time in the second appeal without any foundation in the pleadings and without an iota of evidence in support of the said submissions do not merit consideration. Therefore, the said contentions of the appellants/defendants are necessarily to be rejected as being devoid of merit. The said contentions are accordingly rejected. Sixthly: The learned counsel for the appellants/defendants sought to further contend on the aspects of appreciation of evidence based on burden of proof, weakness of the defence which cannot be taken into consideration and the bar of limitation. However, the substantial questions of law do not cover within their ambit any such issues and therefore, any contentions which are not germane for consideration and which are not necessary for determination of the substantial questions do not advance the cause of the appellants/defendants. Therefore, the said aspects, which are mixed questions of facts and law, and which are not the subject matters of the substantial questions of law cannot be permitted to be raised in the second appeal in view of the clear mandate of Section 100 of the Code. Therefore, the said aspects, which are mixed questions of facts and law, and which are not the subject matters of the substantial questions of law cannot be permitted to be raised in the second appeal in view of the clear mandate of Section 100 of the Code. Lastly: Both under facts and law, the contentions advanced on behalf of the appellants/defendants afresh in the Second Appeal are devoid of merit and are factually and legally not tenable. To sum up: By the year 1951, Mushkin Saheb had no right, title and interest in the property. Therefore, he could not have exchanged the plaint schedule property under Exhibit B1, the deed of exchange, of the year 1951. The settled legal principle is -- 'No one can transfer a better title than what he has'. Since Mushim Saheb had no title to the schedule property by the year 1951, no valid title was conveyed to the transferee under the exchange deed. From the Son of the said transferee under the said exchange deed, who had no valid title, the defendants have purchased the property. Therefore, the defendants cannot claim any valid title, right and interest in the plaint schedule property. Further, having acquired title to the property in the year 1952, the said Mushkin Saheb had twice mortgaged the very same property and had later conveyed the property to the plaintiffs by virtue of a registered sale deed dated 02.11.1964. As already noted, the copy of the said sale deed is exhibited as Exhibit A6. Therefore, the contention of the defendants that Mushkin Saheb had retained no title to sell the plaint schedule property to the plaintiffs under the original of Exhibit A6 is devoid of merit for the reasons already assigned supra. Therefore, the sale deed under Exhibit B3, dated 24.04.2000 does not bind the plaintiffs as the father of the vendors under Exhibit B3 had not acquired valid title to the plaint schedule property under the exchange deed of the year 1951. In the facts (sic) circumstances of the case, this courts (sic) the considered view that the sub (sic) questions of law raised in this (sic) appeal are mixed questions of fact and law and are not substantial questions of law. In the facts (sic) circumstances of the case, this courts (sic) the considered view that the sub (sic) questions of law raised in this (sic) appeal are mixed questions of fact and law and are not substantial questions of law. On a careful consideration of the facts and the evidence on record, this Court finds that the questions raised are devoid of merit, in any view of the matter. Viewed thus, this Court finds that the Second Appeal is devoid of merit and is liable to be dismissed." 9. Before parting with the case, what is to be noted is that the court below while granting decree in favour of the plaintiffs for declaration of title and recovery of possession of the land though without the bore-well, had not granted the relief to the plaintiffs in regard to future mesne profits from the date of the suit. The learned counsel for the respondents/plaintiffs having placed reliance on a decision in G. Subrahmanyam (died) per L.Rs. v. G. Leela and others 2011 (5) ALT 790(D.B) would contend that a court can pass a decree for mesne profits pendente lite suit and future profits till the decree is obeyed even if such a relief is not specially asked for either by ordering enquiry or suo motu. The settled legal position is not disputed. As a general rule the decision on the issue of future mesne profits will not be made in the suit filed for declaration of title and recovery of possession and the Trial Courts more often than not postpone the determination of the issue of future mesne profits by leaving it open for determination in a separate application to be filed in that regard under Order XX of the Code of Civil Procedure. In general, the determination of future mesne profits is a pure question fact and no uniform pattern of assessment exists as the determination of profits depends on several variables including the nature and quality of the property and the probable and reasonable income etcetera. Hence, this is a fit case to leave the aspect of mesne profits to be determined in an enquiry to be made as to the amount of mesne profits from the date of the suit till date delivery of vacant peaceful possession of the property. Such a course meets the ends of justice. Hence, this is a fit case to leave the aspect of mesne profits to be determined in an enquiry to be made as to the amount of mesne profits from the date of the suit till date delivery of vacant peaceful possession of the property. Such a course meets the ends of justice. Therefore, it is needless to mention that the plaintiffs are entitled and are at liberty to move an appropriate application before the trial court for award of mesne profits (future mesne profits) from the date of the suit and till the decree is obeyed; In case, any such application comes to be filed, the trial Court shall, after giving an opportunity to the defendants to file their counter, if any, hold an inquiry as contemplated under law and dispose of the said application in accordance with the procedure established by law. In the result, the Second Appeal is dismissed accordingly. There shall be no order as to costs. The defendants are granted six months time from today to deliver vacant possession of the plaint schedule land without the bore-well. On failure of the defendants to do so, the plaintiffs are at liberty to obtain possession of the plaint schedule property by following the procedure established by law. Miscellaneous petitions, if any, pending in this appeal shall stand dismissed. Appeal dismissed.