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2020 DIGILAW 390 (AP)

Goka Ramu v. Seelam Nageswara Rao (Died)

2020-05-26

M.VENKATA RAMANA

body2020
JUDGMENT : This is an appeal preferred against decree and judgment dated 16.07.2009 in O.S.No.1145 of 2004 on the file of the learned Principal Senior Civil Judge at Visakhapatnam, under Section 96 CPC. 2. The 1st defendant is the appellant. The respondents 1 and 2 were the plaintiffs and the deceased 3rd respondent was the 2nd defendant. The 3rd defendant is the 4th respondent. During pendency of the suit, the 3rd respondent died. His L.Rs. being the respondents 5 to 8 were brought on record. The 1st respondent also died during pendency of this appeal. His wife the 2nd respondent and the respondents 9 to 11, who have been brought on record, are his L.Rs. In the memorandum of appeal, it is stated that the respondents 3 to 8 are not necessary parties to this appeal. 3. The respondents 1 and 2 instituted the suit against the appellant and the 3rd as well as the 4th respondents for eviction from the plaint schedule property, for past mesne profits of Rs.90,000/-, for grant of permanent injunction restraining the appellant and the respondents 3 and 4 from alienating or otherwise encumbering the plaint ‘C’ schedule property and to direct an enquiry into future mesne profits. 4. The plaint ‘C’ schedule property is the property in dispute. It shall be referred to hereinafter, as ‘the suit property’, for convenience. It is a site of an extent of 1122 ½ Sq.yards together with asbestos sheet roofed shed bearing Door No. 8-186 covered by S.Nos.187/2B and 187/2E at Vepagunta village, within the boundaries mentioned in the plaint schedule. 5. Plaint ‘A’ and ‘B’ schedules together constitute plaint ‘C’ schedule property, which are of 607 ½ Sq.yards and 515 Sq.yards respectively. 6. The claim of the respondents 1 and 2 in the plaint is that the 2nd respondent has purchased the plaint ‘A’ and ‘B’ schedule properties under registered sale deeds dated 21.02.1994 and 22.02.1994 respectively from Sri Goka Balaiah, who is father of the appellant and the 3rd respondent, for valuable consideration. It is further case of the respondents 1 and 2 in the plaint that at the request of Sri Goka Balaiah, he was permitted to remain in the suit property even after he sold this property to the 2nd respondent. 7. It is further case of the respondents 1 and 2 in the plaint that at the request of Sri Goka Balaiah, he was permitted to remain in the suit property even after he sold this property to the 2nd respondent. 7. The respondents 1 and 2 further averred in the plaint that the appellant instituted O.S.No.115 of 1995 on the file of the Court of the learned I-Additional Senior Civil Judge, Visakhapatnam against them, their father and the 3rd respondent for partition of the suit property into three equal shares and allot one such share to him while further seeking the relief of permanent injunction against the respondents 1 and 2 from interfering with his possession and enjoyment of the suit property. This suit was dismissed on contest and appeal presented in A.S.No. 128 of 2002 on the file of this Court, was dismissed during pendency of this appeal, as the record makes out. 8. It is averred further in the plaint that since the appellant, 3rd and 4th respondents have been in unauthorised possession of the suit property, who have been realising profits from fruit bearing trees therein while also leasing out, in as much as the 4th respondent was their tenant of a part of the suit property, since there is a possibility of setting up a plea of adverse possession by them in case the suit is filed for their eviction from the date of purchase of the property by the respondents 1 and 2, it is the claim of the respondents 1 and 2 in the plaint that they were constrained to lay the suit for such reliefs. The 1st respondent was added as one of the plaintiffs according to them, since relief was claimed against him in the earlier suit in O.S.No.115 of 1995. 9. The averments in the plaint relevant for the present appeal alone are considered from the plaint and it also traces out the title of the vendor of the 2nd respondent and source of title of the suit property. 10. The appellant resisting the claim of the respondents 1 and 2 filed written statement denying all the averments in the plaint. The averments in the plaint relevant for the present appeal alone are considered from the plaint and it also traces out the title of the vendor of the 2nd respondent and source of title of the suit property. 10. The appellant resisting the claim of the respondents 1 and 2 filed written statement denying all the averments in the plaint. The main contention of the appellant in the written statement is that in as much as the appeal in A.S.No.128 of 2002 was pending by then, where an injunction was also granted restraining the respondents 1 and 2 from interfering with his possession and enjoyment of the suit property, the present suit could not lie nor the earlier decision in O.S.No.115 of 1995 constituted res judicata since the matter did not attain finality. He further contended in the written statement that they have not been in possession of the suit property unauthorisedly and that he and the 3rd respondent as well as their father have been joint owners of the suit property, which consisted of three portions. Contending that the suit property was not self acquired or absolute property of Sri Goka Balaiah, he asserted in the written statement that it belonged to all of them, since was acquired out of their common exertions, which was always treated as their joint family property. He also contended that their father Sri Goka Balaiah executed documents confirming this fact, which have been referred to in detail in the plaint in O.S.No.115 of 1995. 11. Denying their liability to account for the profits realised from the suit property towards past mesne profits, urging that there was no yield from nine mango trees available in this site, which are very old, he further contended in the written statement that he and the 3rd respondent have been in continuous and uninterrupted possession and enjoyment of the suit property in their own right as joint owners along with their father Sri Goka Balaiah well over the statutory period and thus they have perfected title by adverse possession also. He further claimed that the suit could not be maintained for mis-joinder of the plaintiffs, since the 1st respondent is an unnecessary party, while also denying that the sale deeds dated 21.02.1994 and 22.02.1994 being not true, valid and binding on them. 12. The 6th respondent as 5th defendant filed a separate written statement adopted by other L.Rs. He further claimed that the suit could not be maintained for mis-joinder of the plaintiffs, since the 1st respondent is an unnecessary party, while also denying that the sale deeds dated 21.02.1994 and 22.02.1994 being not true, valid and binding on them. 12. The 6th respondent as 5th defendant filed a separate written statement adopted by other L.Rs. of the 3rd respondent, supporting the version of the appellant in the written statement and further contended that all the L.Rs. of Sri Goka Balaiah are not brought on record, since his three daughters are also necessary and proper parties to the suit. 13. Basing on the above pleadings, the trial Court settled the following issues for trial:- “1. Whether the plaintiff is entitled for possession of the plaint schedule property? 2. Whether the plaintiff is entitled for permanent injunction? 3. Whether the plaintiff is entitled for past and future profits? 4. Whether the suit is bad for mis-joinder of parties? 5. To what relief?” 14. At the trial, the 1st respondent examined himself as P.W.1, while relying on Ex.A1 to Ex.A11 in support of their contention. The appellant examined himself as D.W.1 and one of the persons of their locality as D.W.2 in support of his contention. However, no documents were exhibited at the trial on their behalf in support of their contention. 15. Basing on the material and evidence, the learned trial Judge, mainly going by the outcome in O.S.No.115 of 1995 and its appeal A.S.No.128 of 2002, held that the 2nd respondent has right, title and interest to the suit property and therefore entitled for possession of the same by evicting the appellant, the 3rd and 4th respondents. Consequently, relief of permanent injunction was granted as requested by the respondents 1 and 2. Thus, issues 1 and 2 were held in favour of the respondents 1 and 2 and against the appellant, the respondents 3 to 8. Similarly, issue No.4 in respect of mis-joinder was answered in favour of the respondents 1 and 2, having regard to the nature of the suit and against the appellant and the respondents 3 to 8. Thus, issues 1 and 2 were held in favour of the respondents 1 and 2 and against the appellant, the respondents 3 to 8. Similarly, issue No.4 in respect of mis-joinder was answered in favour of the respondents 1 and 2, having regard to the nature of the suit and against the appellant and the respondents 3 to 8. While deciding issue No.3 relating to mesne profits, on the material, the learned trial Judge awarded Rs.58,500/-, in all, than Rs.90,000/-as claimed by the respondents 1 and 2 and ultimately the suit was decreed granting the relief in favour of the respondents 1 and 2 by the judgment under appeal. 16. Ms. Nimmagadda Revathi, learned counsel for the appellant, seriously assailing the findings recorded by the learned trial Judge on the material and evidence, particularly stressed on the question relating to adverse possession, urging that even though a specific plea was raised in the written statement, no issue was cast in terms of Order-14, Rule-5 CPC and hence the appellant has suffered serious prejudice in the conduct of the trial. Thus, it is contended that an issue in respect thereof is absolutely necessary in the circumstances of the case and therefore, the judgment and decree are liable to be interfered with. 17. The learned counsel further contended that the assessment and evaluation of the mesne profits by the learned trial Judge is not based on the evidence on record or realistic. When there is no proof of quantity of the yield from existing mango trees in the suit property nor the price at which mangoes could be sold at the relevant point of time nor there is evidence relating to quantity of the yield actually received, it is contended that the learned trial Judge could not have arrived at such amount on surmises, by hypothetical consideration. Thus seriously questioning the manner by which the past mesne profits was assessed, either in relation to the structures available in the suit property or in respect of the fruit bearing trees, it is requested that such findings be set aside. 18. Sri Y. Balaji, learned counsel for the respondents 2 and 9 to 11, supported the judgment under appeal basing on the material available. 18. Sri Y. Balaji, learned counsel for the respondents 2 and 9 to 11, supported the judgment under appeal basing on the material available. It is further contended by the learned counsel for the respondents that question of adverse possession in this case did not arise, since there is no specific plea in this respect and even otherwise the facts and circumstances in this case did not require such plea to be raised by separate issue. It is further contended by the learned counsel for the respondents that by virtue of temporary injunction granted in the earlier suit and in the appeal in this Court, the appellant cannot contend that they perfected their right, title and interest to the suit property by adverse possession nor the required period stood exhausted. Supporting the findings so recorded on issues 1 to 3 by the trial Court, the learned counsel for the respondents further contended that the trial Court made a realistic assessment in arriving at the past mesne profits basing on the material. Therefore, it is requested for these respondents, not to interfere with any of the findings recorded by the learned trial Judge nor to set aside the decree and judgment of the trial Court. 19. Now, the following points arise for determination:- 1. Whether the 2nd respondent is the owner of the suit property and is entitled to seek eviction of the appellant and respondents 5 to 8 therefrom? 2. Whether the appellant stood to prejudice for want of an issue settled by the trial Court basing on plea of adverse possession of the suit property against the interest of the respondents 1 and 2? 3. Whether mesne profits as arrived at by the learned trial Judge is based on evidence and material on record and if it is proper? 4. To what relief? POINT No.1:- 20. The suit property was purchased for valuable consideration of Rs.3.20 lakhs by the 2nd respondent from Sri Goka Balaiah under originals of Ex.A6 and Ex.A7 sale deeds dated 21.02.1994 and 22.02.1994 respectively. The property covered by both these sale deeds is described in plaint ‘A’ and ‘B’ schedules, which together comprise plaint ‘C’ schedule viz., the suit property. These sale deeds were preceded by Ex.A5-agreement for sale dated 28.03.1993 executed by Sri Goka Balaiah in favour of the 2nd respondent. The property covered by both these sale deeds is described in plaint ‘A’ and ‘B’ schedules, which together comprise plaint ‘C’ schedule viz., the suit property. These sale deeds were preceded by Ex.A5-agreement for sale dated 28.03.1993 executed by Sri Goka Balaiah in favour of the 2nd respondent. One of the attestors to this sale deed is Smt. Suramma, who is none other than the wife of the original owner Sri Goka Balaiah. 21. Sri Goka Balaiah was a Civil Contractor executing the works of Visakhapatnam Urban Development Authority and Visakhapatnam Municipal Corporation during his lifetime. The 1st respondent was also a contractor given to undertaking construction of houses at Visakhapatnam. Thus, both of them were known to each other. 22. Sri Goka Balaiah was also borrowing various amounts from the 1st respondent either for his business purpose or for meeting necessities of his family, according to the version of the respondents 1 and 2. The fact that he was borrowing money from the 1st respondent is also reflected in Ex.A5-agreement for sale. There is also proof in the nature of Ex.A4-Mortgage deed dated 16.09.1987 whereunder Sri Goka Balaiah had borrowed Rs.30,000/-from Kulapaka Appala Narasaiah. He had also redeemed this simple mortgage on 03.02.1990. This registered redemption receipt is also a part of Ex.A4. Thus, it is a reflection of the nature of Sri Goka Balaiah, who was given to borrowing money for his purposes. 23. Sri Goka Balaiah had purchased 1180 Sq.yards of open site in S.No.31/1-A-1 along with a tiled house at Butchirajupalem, which is a part of Visakhapatnam Municipal corporation, bearing Patta No.6 from Smt. Pillalamarri Hanumayamma under a registered sale deed dated 22.08.1972. He sold it to the respondent No.1 under Ex.A1 sale deed dated 23.02.1985 for a consideration of Rs.1.80 lakhs. The appellant had attested the above sale deed. Contemporaneously, in respect of the surrounding four compound walls to this plot, Sri Goka Balaiah had executed Ex.A2 agreement dated 23.02.1985 confirming such facts among other things. These facts are proved by P.W.1 and also from the documentary evidence referred to above. 24. Out of the sale consideration so realised under Ex.A1, it is the version of the respondents 1 and 2 that Sri Goka Balaiah had purchased the suit property under original of Ex.A3 on 02.03.1985 for Rs.39,500/-from Smt. Dasari Ramayamma. These facts are proved by P.W.1 and also from the documentary evidence referred to above. 24. Out of the sale consideration so realised under Ex.A1, it is the version of the respondents 1 and 2 that Sri Goka Balaiah had purchased the suit property under original of Ex.A3 on 02.03.1985 for Rs.39,500/-from Smt. Dasari Ramayamma. Thus, within a week of the transaction covered by Ex.A1, he purchased the suit property under the original of Ex.A3. 25. Thus, the respondents 1 and 2 had set out the flow of title in respect of this property favouring Sri Goka Balaiah and which according to them stood transferred to the 2nd respondent, upon sale under the originals of Ex.A6 and Ex.A7. 26. The defence of the appellant broadly is not disputing these facts. However, his claim is that the suit property was acquired not only by Sri Goka Balaiah but also due to joint exertions of himself and his elder brother viz., the 3rd respondent. Thus, he claimed that the suit property is a joint family property, while disputing the sale deeds under the originals of Ex.A6 and Ex.A7. He ultimately filed the suit in O.S.No.115 of 1995 on the file of the Court of the learned 1-Additional Senior Civil Judge, Visakhapatnam against the respondents 1 and 2, his father Sri Balaiah, his brother viz., the 3rd respondent. On contest, this suit was dismissed rejecting his version, while confirming sale of the suit property under the original of Ex.A6 and Ex.A7 sale deeds. Ex.A8 is the certified copy of the judgment in O.S.No.115 of 1995. By the date of institution of the suit, the appeal preferred against the decree and judgment in O.S.No.115 of 1995 was pending on the file of the then High Court of Andhra Pradesh at Hyderabad in A.S.No.128 of 2002. The decree and judgment of the trial Court in O.S.No.115 of 1995 was confirmed by the judgment (Ex.A9) in A.S.No.128 of 2002 dated 28.03.2007. 27. Thus, the contention of the appellant in the earlier litigation was rejected and thus it favoured the respondents 1 and 2 in a way confirming purchase of the suit property by 2nd respondent under the originals of Ex.A6 and Ex.A7 sale deeds. 28. As D.W.1, the appellant also stated in cross-examination that he did not prefer any appeal against the decree and judgment in A.S.No.128 of 2002, further. 28. As D.W.1, the appellant also stated in cross-examination that he did not prefer any appeal against the decree and judgment in A.S.No.128 of 2002, further. Thus, the result in the above litigation became final and against the appellant and his brother. 29. The learned trial Judge considered these circumstances and basing on the principle of res judicata, the claim of the appellant was rejected. Thus, it was observed that it is not open for the appellant and the 3rd respondent to make any claim in respect of the suit property in the present matter. 30. The claim set forth by the respondents 1 and 2 in respect of the right title acquired by the 2nd respondent for the suit property, basing on originals of Ex.A6 and Ex.A7 and the circumstances under which the suit property was purchased by Sri Goka Balaiah earlier, who later on transferred under these two sale deeds in favour of the 2nd respondent, were subject matter of O.S.No.115 of 1995 as seen from Ex.A8. Confirming the outcome in O.S.No.115 of 1995 by Ex.A9 judgment in A.S.No.128 of 2002, drives the last nail into the case of the appellant. 31. Thus, when the defence of the appellant was rejected earlier on the very same foundation, on which he tried to build up a claim now in the present matter; it is not open for him to canvass likewise. He and all the other parties to the earlier litigation are bound by the outcome therein. Viewed from such perspective, the observation of the learned trial Judge in this context rejecting the defence of the appellant, is justified. 32. Thus, there is sufficient material and proof to hold that the 2nd respondent became owner of the suit property by virtue of the sale under the originals of Ex.A6 and Ex.A7 by Sri Goka Balaiah, whereby he had transferred his right, title and interest to the suit property in her favour. Thereby, she is entitled to seek possession of the suit property from the appellant and L.Rs. of the 3rd respondent viz., the respondents 5 to 8. In fact, the respondents 5 to 8 did not choose to contest this appeal. 33. Thereby the respondent No.2 is entitled to get the plaintiff and the respondents 5 to 8 evicted from the suit property. 34. Thus, this point is answered. POINT No.2:- 35. of the 3rd respondent viz., the respondents 5 to 8. In fact, the respondents 5 to 8 did not choose to contest this appeal. 33. Thereby the respondent No.2 is entitled to get the plaintiff and the respondents 5 to 8 evicted from the suit property. 34. Thus, this point is answered. POINT No.2:- 35. One of the strenuous contentions of the learned counsel for the appellant is in respect of failure of the learned trial Judge to settle an issue relating to adverse possession in the suit. Thus, it is contended that any amount of prejudice is caused to the appellant to his defence, since there is manifest failure to apply Order-14, Rule-5 CPC. The learned counsel for the respondents 1 and 2 sought to repel such contention on the ground that there is absolutely no necessity to cast such issue in this matter. 36. As seen from the written statement, the appellant, in para-8 raised such plea to the effect that he and his elder brother have been in continuous and uninterrupted possession and enjoyment of the suit property in their own right as joint owners along with their father well over the statutory period and thus, perfected their right to it by adverse possession. The plea so set up by him is not confined to exclusive right and interest allegedly acquired by him by adverse possession. It is associated not only with his elder brother viz., 3rd respondent but also his father. When it is an established fact that his father Sri Goka Balaiah was the vendor of the suit property to the 2nd respondent under the originals of Ex.A6 and Ex.A7 sale deeds, regarding which there is clear proof and also the bar suffered by the appellant on account of the outcome in the earlier suit in O.S.No.115 of 1995, no plea as such for adverse possession could be raised. 37. A transferor of this property, when there is proof of valid transfer in favour of the transferee, is not entitled to set up such plea of adverse possession, particularly in the given established facts and circumstances in this case. The claim set up by the appellant is derivative in nature either through or along with his father. 37. A transferor of this property, when there is proof of valid transfer in favour of the transferee, is not entitled to set up such plea of adverse possession, particularly in the given established facts and circumstances in this case. The claim set up by the appellant is derivative in nature either through or along with his father. But when their defence was lost in the earlier litigation where apparently the appellant did not set up such plea nor did he go for trial on such basis in the earlier suit, it is another precluding factor against him to raise this plea. Apart from it, if at all he intends to make out a claim of adverse possession, it is only from the date of the sale deeds covered by Ex.A6 and Ex.A7 dated 21.02.1994 and 22.02.1994. The suit was laid in the trial Court on 23.11.2004. It should also be borne in mind that by then earlier litigation has not come to an end and his claim for a share in the suit property was pending in A.S.No.128 of 2002 in appeal. Therefore, by the date of presentation of the plaint in the present matter, the statutory period of 12 years according to Article 65 of the Limitation Act did not lapse, even if the version of the appellant is considered for arguments sake, as rightly pointed out by the learned counsel for the respondents. 38. In this backdrop, there was absolutely no necessity to frame or settle an issue relating to adverse possession, as sought to be contended by for the appellant, for the purpose of trial. 39. Therefore, this contention of the appellant has to be rejected accepting the contention of the learned counsel for the respondents. 40. Thus, this point is answered. POINT No.3:- 41. Strenuous contentions are advanced on behalf of the appellant against the manner by which the learned trial Judge arrived at mesne profits. 42. The respondents 1 and 2 relied on the outcome of the commission taken out during pendency of the suit and the report of the learned commissioner. The learned commissioner visited the suit property and noted down the physical features. The report of the learned commissioner is not disputed nor any objections were filed in the trial Court on behalf of the appellant. The learned commissioner visited the suit property and noted down the physical features. The report of the learned commissioner is not disputed nor any objections were filed in the trial Court on behalf of the appellant. This report reflects location of two portioned house with asbestos sheet roof in the suit property, each portion consisting of two rooms that were in occupation of the appellant by then. The learned commissioner also observed another tiled room in this suit property, where mother of the appellant was living. Structures like kitchen room covered with asbestos sheet roof and conveniences like lavatory and bathroom apart from well were found in this premises. The learned trial Judge took into consideration these features and basing on the testimony of D.W.2, held that this property commanded a rent of Rs.500/-per month. 43. The version of D.W.2 elicited in the cross-examination in respect of the rents prevailing in the locality is the main basis for the learned trial Judge to arrive at such rental value per month for the suit property. D.W.2 stated that she is paying Rs.300/-towards rent for his house, which is a tin sheet shed, consisting of one room and varandah. It was the rent he was paying by the date of his examination in the Court viz., 05.03.2009. He further stated that their locality viz., Prahladapuram is a prominent place in Simhachalam town. He further deposed that a single room can fetch Rs.600/-to Rs.1000/-per month in Prahladapuram area, where there are schools, junior colleges etc. In the above circumstances, considering the extent of the suit property viz., 1112 ½ sq. yards in occupation of the appellant and his family, fixing rent at Rs.500/-p.m., is apparently quite moderate and is not on high side. The learned trial Judge took into consideration the best evidence possible viz., the version of D.W.2 on record to determine past mesne profits for three years prior to the institution of the suit at a mean figure at Rs.500/-per month for the entire term of three years. Learned trial Judge did not consider incremental increase in the rents in the locality during that period separately. The finding so recorded in the absence of any cross-appeal or cross-objections from the respondents 1 and 2, should be confirmed. Learned trial Judge did not consider incremental increase in the rents in the locality during that period separately. The finding so recorded in the absence of any cross-appeal or cross-objections from the respondents 1 and 2, should be confirmed. Thus, at the rate of Rs.6000/-per annum ,arriving mesne profits at Rs.18,000/-for the period of three years for occupation of the suit property by the appellant and his family, is just and appropriate. 44. The learned commissioner observed the following trees in the suit property. S. No. Name of the tree Number of trees and usufructs 1. Mango 9 in number, no fruits 2. Lemon 1 in number with fruits 3. Neredu 2 in number, no fruits 4. Seethaphalam 2 in number, no fruits 5. Naarinja 2 in number, no fruits 6. Jaama 1 in number, no fruit 7. Mandara (hibiscus) 1 in number, no fruits 8. Gorintaku (henna) 1 in number He has shown their specific location in his plan appended to the report. Serial nos. 7 and 8 are not fruit bearing trees. They are either flower bearing or supplying greens. The version of the appellant at the trial was that they had never sold mango fruits in open market and whatever yield they were realising, they were distributing among friends and relatives etc. Further their contention is that they are old trees, which were not bearing fruit every year. At the time of visit of the learned commissioner, the appellant had reiterated that stand. The 1st respondent, who was also in attendance during that time at the suit property, stated that the mango trees did not bear any crop during that year. Therefore, these mango trees were not yielding crop regularly as an annual feature is established from the version of P.W.1 himself before the learned commissioner. Thus, this situation during the year 2005 was observed by the learned commissioner. It is a fact having mitigating effect favouring the appellant against the findings recorded by the learned trial Judge in respect of the mesne profits assessed, from these fruit bearing trees. 45. As seen from the material on record, as rightly contended for the appellant there is no evidence that these mango trees and other trees were giving out a particular yield. Nor is there any proof regarding prevailing market rate for these fruits. 45. As seen from the material on record, as rightly contended for the appellant there is no evidence that these mango trees and other trees were giving out a particular yield. Nor is there any proof regarding prevailing market rate for these fruits. Testimony of D.W.2 to the effect that 100 mangoes could get Rs.300/-to Rs.400/-, which version related to the period viz., March, 2009, cannot be the sole basis to assess and evaluate the prices at which these fruits could have been sold from the years 2001-02 to 2003-04, which is the relevant period for the purpose of past mesne profits in this case. 46. No definite and certain evidence was let in on behalf of the respondents 1 and 2 in this respect, particularly with reference to possible income, the appellant and other occupants of the suit property would have realised from these trees. The assessment made by the learned trial Judge is not based on any acceptable evidence nor it is appearing realistic. Surmises or weird guess work cannot be the substitute for evidence to be let in by a party in this context. 47. Thus, the value of mesne profits from these fruit bearing trees as assessed by the learned trial Judge at Rs.40,500/-for the period of three years referred to above, cannot be accepted. For want of evidence, the claim of the respondents 1 and 2 as set out in the plaint or as awarded by the learned trial Judge in the judgment under appeal, should be rejected. Merely because there are fruit bearing trees, it cannot immediately be inferred that they would have offered a regular annual income to the occupants of this premise. Several facts like attending to their growth, management, maintenance etc., are certain ponderables to be looked into in this context. Stray evidence on record, which did not inspire by itself, cannot be the basis to arrive at such figure towards past mesne profits, as was done in the judgment under appeal. To that extent, the findings recorded by the learned trial Judge should be interfered with and setting aside mesne profit to the extent of Rs.40,500/-awarded by the learned trial Judge to the respondents 1 and 2. 48. To that extent, the findings recorded by the learned trial Judge should be interfered with and setting aside mesne profit to the extent of Rs.40,500/-awarded by the learned trial Judge to the respondents 1 and 2. 48. Thus, the claim of the appellant for past mesne profits towards occupation of the suit property by the appellant and his family members at Rs.18,000/-for the period of three years is accepted and to this extent alone the profits shall be awarded in this case. 49. Thus, this point is answered. POINT No.4:- 50. The learned trial Judge also considered grant of the relief of permanent injunction as requested by the respondents 1 and 2 basing on the finding recorded on issue No.1. In as much as the claim of the respondents 1 and 2 is now confirmed as recorded by the learned trial Judge as to right, title and interest of the 2nd respondent being the owner of the suit property and being entitled to get the appellant and other respondents 5 to 8 evicted from the suit property, they cannot subject the suit property for any sale or transfer by any mode or any encumbrances as such. Thus, there is justification in granting such relief by the learned trial Judge in favour of the respondents 1 and 2. 51. Further, in view of the findings on points 1 to 3, this appeal has to be allowed in-part only to the extent of setting aside the decree and judgment of the trial Court in awarding past mesne profits of Rs.40,500/-, while confirming the same in all other respects. In these circumstances, it is desirable to direct the parties to bear their own costs throughout. 52. In the result, the appeal is allowed in part setting aside the decree and judgment of the trial Court in awarding past mesne profits of Rs.40,500/-while confirming the same in all other respects including evicting the appellant and the respondents 5 to 8 from the suit property (plaint ‘C’ schedule property). The appellant and the respondents 5 to 8 are given three months time from this day to vacate the suit property (described in plaint ‘C’ schedule). If the appellant and the respondents 5 to 8 did not vacate the suit property within the above period, the respondent No.2 shall apply to the trial Court for their eviction from the suit property through the process of law. If the appellant and the respondents 5 to 8 did not vacate the suit property within the above period, the respondent No.2 shall apply to the trial Court for their eviction from the suit property through the process of law. The parties are directed to bear their own costs throughout. The 2nd respondent shall be at liberty to file a separate application for determination of future mesne profits. As sequel thereto, all miscellaneous petitions, if any, shall stand closed. Interim Orders, if any, shall stand vacated.