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2015 DIGILAW 60 (TRI)

Haradhan Choudhury v. Barada Kumar Sen

2015-02-04

DEEPAK GUPTA

body2015
ORDER : 1. Both the CRP No. 80 of 2008 and RSA No. 24 of 2008 are being disposed of by a common order since the dispute is between the same parties and this common order will deal with all the disputes raised by the parties. 2. Sri Haradhan Choudhury and others had filed Title Suit No.21 of 1995 for recovery of possession of suit property which is the subject matter of Title Suit No.21 of 1995 and had also prayed for mesne profits. The suit was decreed and a decree for possession of the suit land and for mesne profits from the date when the defendants in that suit had taken possession of the land was passed in favour of the plaintiffs. The appeal in that suit was filed by the defendants Smt. Hiranmoyee Sen and others. The first appeal as well as the RSA No. 13 of 2005 filed by the defendant Smt. Hiranmoyee Sen and other co-defendants were dismissed and in Execution Petition No.02 of 2005 Haradhan Choudhury and others admittedly got possession of the land which was the subject matter of Title Suit No. 21 of 1995. Thereafter, in the same execution petition Haradhan Choudhury in respect of his decree for mesne profits also sought for attachment and sale of the following property:- “SCHEDULE OF THE SUIT LAND Within District-South Tripura, Mouja-Shuknachhari, Tahasil-Silachari, Revenue Circle-Silachari, P.S. Sabroom, R.S. Khatian 76/1 of Mouja Shuknachhari measuring 1.22 acres Nal land sabek, plot No.501, (Hal plot No.1128) Area 1.22 acres exceeding 3 kanis land.” In this execution petition, Smt. Hiranmoyee Sen and others raised a plea that they were not in possession of the said property and this property had always been in possession of the decree holder Haradhan Choudhury and others and, therefore, prayed that the attachment be not ordered. 3. No order of attachment was passed. After Haradhan Choudhury had filed the application for attachment of the property in which he had admitted that the aforesaid suit land belongs to Smt. Hiranmoyee Sen and others, the said Hiranmoyee Sen and others filed Title Suit No.4 of 2006 praying that they be declared owners of the said property and the defendants, i.e. Haradhan Choudhury and others be directed to handover possession of the suit property to them and also prayed for mesne profits. This suit was decreed on 20-09-2007. This suit was decreed on 20-09-2007. The suit confirming the title of Smt. Hiranmoyee Sen and others was decreed in their favour and a decree for possession was granted in their favour by the trial Court on 20-09-2007 but the trial Court did not grant any mesne profits to them. Against this judgment, both the sides filed appeals being T.A. No. 22 of 2007 and T.A. No. 23 of 2007. Both the appeals were disposed of by a common judgment on 09-04-2008 and the learned lower appellate Court allowed the appeal of the plaintiffs Smt. Hiranmoyee Sen and others and also granted mesne profits to them and dismissed the appeal of the defendants Haradhan Choudhury and others. 4. Haradhan Choudhury and others filed RSA 24 of 2008 against this common judgment. In the mean time, the proceedings were continuing in the execution case and finally, the learned Executing Court on 27-09-2008 dismissed the execution petition on the ground that the Regular Second Appeal No. 24 of 2008 is pending in this Court. That order is the subject matter of Civil Revision Petition 80 of 2008. 5. It is a paradoxical situation that both the parties claim that they are not in possession of the suit land which is the subject matter of RSA 24 of 2008. Each of the parties states that it is the other party which is in possession of the suit land. 6. At this stage, it would be pertinent to mention that in both the suits the learned Courts below granted a decree for recovery of mesne profits from the date the opposite party in each suit was in possession of the suit land without determining what was the date of taking over possession and without even making an in-depth analysis as to what were the mesne profits. In a suit where a party claims that he has been dispossessed and claims damages on account of loss of income or on any other account, he can claim damages till the date of filing of the suit. The party filing the suit has to assess and calculate the damages up to the date of filing of the suit, specifically state in the plaint what is the damages the plaintiff is claiming and has to pay the Court fees on the same. The party filing the suit has to assess and calculate the damages up to the date of filing of the suit, specifically state in the plaint what is the damages the plaintiff is claiming and has to pay the Court fees on the same. Till the date of filing of suit, there can be no claim without assessing the same and valuing the suit accordingly for purposes of Court Fees and valuation. 7. Mesne profits by their very definition mean profits which arise during a particular period. There is no concept of mesne profits prior to the date of filing of the suit. Any claim in relation to a loss suffered prior to the date of filing of the suit will have to be claimed as damages and Court fees on the same has to be paid. However, in the State of Tripura I have found that in innumerable judgments mesne profits are being awarded from the date when the plaintiff has been dispossessed without payment of Court fees till the date of filing of the suit. 8. The Limitation Act prescribes a specific period of limitation for recovery of damages. The limitation for recovery of possession of immovable property is 12(twelve) years and in certain cases may be even more than 12 (twelve) years such as where possession is permissive but limitation for claiming damages is only 3 (three) years. Therefore, damages of only 3 (three) years can be claimed, that too after they are assessed and Court fees are paid off. Needless to say, the damages must be proved in accordance with law. 9. Even with regard to mesne profits, the Court must determine the mesne profits on the basis of cogent evidence led before the Court. The mere bald statement of the plaintiff is the ipse dixit of the plaintiff and is meaningless unless supported by other evidence. Merely because the plaintiff claims that he earns Rs.20,000/- a month from the land does not mean that the statement is correct. He shall have to prove this statement by leading better evidence than this. In the present cases, mesne profits have been granted from a date prior to the filing of the suit which, in my opinion, could not have been done. In any event, the decree in the suit out of which execution petitions arise have become final and nothing can be done about this. In the present cases, mesne profits have been granted from a date prior to the filing of the suit which, in my opinion, could not have been done. In any event, the decree in the suit out of which execution petitions arise have become final and nothing can be done about this. However, as far as the present decree is concerned, I am clearly of the view that the manner in which mesne profits was granted is totally illegal and unknown to law. 10. Since both the parties were not at idem on the issue as to who is in possession of the property, on the last date this Court had passed the following order:- “27.01.2005. Heard in part. The main issue which arises in this case is that which party is in possession of the land which was subject matter of the proposed attachment in the execution petition and also the subject matter of the suit (T.S No.4 of 2006) filed by Smt. Hiranmoyee Sen and others. I have impressed upon the parties that they should amicably settle this matter. I also find that the manner in which mesne profits have been granted is totally illegal. In both cases there is no assessment of mesne profits by the Judges’. They have just on the basis of the claim made decreed the mesne profits without deciding what was the income from the land in question. Secondly, in both the cases the mesne profits have been awarded from the date when the parties/plaintiffs in each of the cases are alleged to have been dispossessed. I am clearly of this view that this is highly improper. Mesne profits by their very nature occur during the pendency of the suit. If any damages are claimed on account of loss of profits prior to the date of filing of the suit, the plaintiff is bound to quantify the said damages and Court fees on the same. There can be no mesne profits prior to the date of filing of the suit. If any damages are claimed on account of loss of profits prior to the date of filing of the suit, the plaintiff is bound to quantify the said damages and Court fees on the same. There can be no mesne profits prior to the date of filing of the suit. Therefore, the parties are directed to appear in person on 4th February, 2015 at 2 p.m. Since both the parties claim not to be in possession of the land, this Court has suggested that a Commissioner shall be appointed to visit the land and he shall ensure that the legal heirs of Hiranmoyee Sen, if not already in possession of the land shall be put in possession unless the said land is found to be in possession of person(s) who are not even parties to this suit.” 11. Even today both the parties state that they are not in possession of the suit land. It is stated by the parties that village and mouja-Suknachari, Tehshil-Silachari falls within sub-division Karbook under Gumti District. Both the parties admit that this land belongs to Smt. Hiranmoyee Sen and Smti. Ratna Sen (Sarkar). Smt. Hiranmoyee Sen has expired and is represented by Barada Kumar Sen, Dipankar Sen, Anup Sen, Smt. Chayanika Sen and Smt. Jana Sen. Admittedly, the aforesaid persons are the owners of this schedule land described hereinabove. 12. Therefore, the Tehsildar, Silachari is directed to visit the spot in the presence of the parties on 06-04-2015 who shall ensure that the aforesaid six persons are put in possession of the property if they are not already in possession thereof. This shall put an end to the dispute with regard to possession. As far as mesne profits are concerned, all the parties through their counsel as well as the parties who are present have admitted before this Court that they are agreeable to the suggestion earlier made by the Court and give up their claim for mesne profits. 13. Plaintiffs-respondents Barada Kumar Sen, Smt. Chayanika Sen, Smt. Jana Sen as well as the defendants Haradhan Choudhury, Smt. Jyoti Rani Das (Choudhury), mother as well as natural guardian of minors Santanu Choudhury and Smt. Manisha Choudhury, are not present. 13. Plaintiffs-respondents Barada Kumar Sen, Smt. Chayanika Sen, Smt. Jana Sen as well as the defendants Haradhan Choudhury, Smt. Jyoti Rani Das (Choudhury), mother as well as natural guardian of minors Santanu Choudhury and Smt. Manisha Choudhury, are not present. Sri D.K. Daschoudhury, Sri Sekhar Dutta and Sri P.K. Ghosh, learned counsel, represent them and state that they accept the proposal made by the Court and give up the claim of mesne profits on instructions imparted to them by their clients. However, these aforesaid persons are also directed to file affidavits within three weeks in this Court that they are agreeable to the order passed and dictated in Court. 14. Both the revision petition and the regular second appeal are disposed of in the aforesaid terms. 15. Send down the lower court records forthwith.