Madras High Court
The Nazareth Cooperative Building ... vs Kanakaraj (Died), Mrs. Alexandra ... on 19 June, 2003
Equivalent citations: 2003(3)CTC217
JUDGMENT P. Thangavel, J.
1. The plaintiff as appellant has come forward with this Second Appeal against the judgment and decree dated 31.3.1992 and made in A.S. No. 99 of 1989 on the file of the learned II Additional District Judge, Tirunelveli, confirming the judgment and decree dated 21.4.1989 and made in O.S. No. 264 of 1983 on the file of the learned Subordinate Judge, Tuticorin.
2. The facts that are necessary for disposal of this Second Appeal are as follows: property described in the plaint belonged to the defendant and the said house was constructed by him by borrowing loan from the plaintiff Society. The defendant had defaulted to repay the loan amount and, therefore, the suit property was brought to sale in public auction by the plaintiff Society as per the Award passed by the defendant under the Tamil Nadu Co-operative Societies Act and Rules, 1983. The property was sold in auction on 30.9.1977 and the sale was confirmed in favour of the plaintiff Society on 20.5.1978. The plaintiff has taken possession of the said house as owner thereof while one Abdul Muthalif was in possession of the property as tenant on a monthly rent of Rs. 50/-. The plaintiff filed a suit in O.S. No. 688 of 1979 on the file of the Court of District Munsif, Srivaikuntam, against Abdul Muthalif for eviction and for arrears of rent of Rs. 1200/-. The said Abdul Muthalif resisted the above said suit stating that the rent for the demised premises was Rs. 25/- per month, that possession of the demised premises was not taken by the plaintiff Society, that the rent for the demised premises was paid to the defendant and that, therefore, the plaintiff Society is not entitled to any relief in that suit. The suit was disposed on 24.4.1981 wherein decree for payment of arrears of rent was granted while refusing to order for eviction against Abdul Muthalif from the demised premises. The plaintiff Society preferred an appeal in A.S. No. 148 of 1981 on the file of the Subordinate Court, Tuticorin, against the judgment and decree dated 24.4.1981 and made in O.S. No. 688 of 1979. The appeal filed by the plaintiff Society as appellant was dismissed on 18.12.1982 but with a finding that the plaintiff Society is the absolute owner of the demised property. The said Abdul Muthalif continued to be in possession of the demised premises as a tenant and he vacated the same on 25.01.1983 by sending a letter dated 28.01.1983 to the plaintiff Society. The possession of the said premises was delivered to the plaintiff Society on 31.01.1983 through Mohammed Hussain, brother of Abdul Muthalif. From that date, the plaintiff Society is in possession and enjoyment of the said property. The defendant, who has no right, title and possession to the suit property, trespassed into the suit property on 28.02.1983 and remains in possession. He had also cut and removed two trees of value Rs. 200/- on 23.4.1983. A complaint was given to the Police in connection with the same. A notice was issued to the defendant by the plaintiff Society on 25.4.1983 to deliver possession of the demised premises along with damage of Rs. 200/- and after receipt of the said notice, the defendant sent a reply to the same on 04.5.1983 containing untenable allegations. In the said reply notice, the defendant had claimed ownership to the demised premises. It is under the said circumstances, the plaintiff has come forward with the suit for declaration of title of the Society, for possession and for damages as claimed in the plaint.
3. The defendant resisted the suit claim on the following grounds: suit property was sold in auction in favour of the plaintiff Society and the same was confirmed on 20.5.1978. Even then, the plaintiff Society is not the absolute owner of the suit property. The defendant is not a party to the suit in O.S. No. 688 of 1979 and also the appeal in A.S. No. 148 of 1981 and, therefore, the said decisions will not bind the defendant. The suit was barred under Section 47 as well as under Order II Rule 2 of the Code of Civil Procedure. The suit property was not delivered to the plaintiff Society by Abdul Muthalif, through his brother, as claimed by the plaintiff. Abdul Muthalif, who was a tenant under this defendant, delivered possession to this defendant on 26.01.1983 and this defendant is in possession and enjoyment of the said property from then. The defendant has not trespassed into the suit property after 31.01.1983 as alleged by the plaintiff. There was no action on the complaint given by the plaintiff against the defendant because of its falsity. Since the plaintiff Society had not taken delivery of possession by filing a petition within one year from the date of becoming absolute owner, the suit is not maintainable. Accordingly, the defendant has sought for dismissal of the suit.
4. After considering the submission made on both sides, in the light of the material evidence available on record, the trial Court has come to the conclusion that the plaintiff Society is not entitled to any relief sought for in the suit and accordingly, dismissed the suit. Aggrieved at the judgment and decree dated 21.4.1989 and made in O.S. No. 264 of 1983 on the file of the Court of Subordinate Judge, Tuticorin, the plaintiff as appellant has preferred the appeal in A.S. No. 99 of 1989 on the file of the learned II Additional District Judge, Tirunelveli. After considering the submission made on both sides, in the light of the material evidence available on record, the first Appellate Court confirmed the judgment and decree passed by the trial Court and dismissed the first appeal but with direction and liberty to the plaintiff Society to initiate proceeding against the defendant to recover the amount due to the Society from the defendant by means of separate suit. Aggrieved at the said judgment and decree dated 31.3.1992 and made in A. S. No. 99 of 1989 on the file of the first Appellate Court, the plaintiff as appellant has come forward with this Second Appeal.
5. The following substantial questions of law were framed for consideration at the time of admitting this Second Appeal.
1. Whether the Courts below are right in dismissing the suit for declaration and for recovery of possession by the Court Auction Purchaser without taking proceedings under Order 21, Rule 95 C.P.C.?
2. Whether the Courts below are right in dismissing the suit merely on the ground that the rights of the Court Auction Purchaser is to apply for delivery especially when the title of the Appellant was not disputed?
3. Whether the findings of the Courts below regarding the maintainability of the suit are vitiated having regard to the rights of the court auction purchaser to file a suit within 12 years from the date of confirmation of Sale being not barred under Articles 64 and 65 of the Limitation Act?
4. Whether the findings of the Courts below regarding the delivery of the premises as stated under Exs. A.1, A.4, A.14 and A.15 is correct in the absence of any contra evidence and the findings in the earlier proceedings in O.S. No. 688 of 1979 on the file of District Munsif Court, Srivaikuntam?
5. Whether the Courts below is right in holding that the suit is not maintainable by virtue of Section 47 C.P.C. especially when the cause of action for the suit is long subsequent to the termination of the earlier proceedings for sale and confirmation of sale under Ex.A.1?
6. One Gnanadurai, Secretary, and Jagannathan, former Secretary of Nazareth Co-operative Building Society Limited, Nazareth, were examined as P.Ws. 1 and 2 while the first respondent herein Kanakaraj, who is dead, and one Samuel were examined as D.Ws. 1 and 2 before the trial Court. Exs. A.1 to A.22 were marked on the side of the appellant. No document was produced before the trial Court by the respondent.
7. The fact remains that the appellant Society is advancing housing loan to its members for construction of house and the first respondent, as member of the Society, had borrowed loan for construction of the house, which is the subject matter of this appeal. Admittedly, the respondent herein had failed to repay the loan amount due to the appellant Society and the suit property owned by the respondent herein was brought to sale as per the Award already passed under the Tamil Nadu Cooperative Society Act and Rules, 1983. The suit property was sold on 30.9.1977 and the appellant Society was permitted to purchase the same in the said public auction. The sale of the suit property was confirmed on 20.5.1978 in favour of the appellant Society and a Sale Certificate as seen in Ex.A.1 dated 24.10.1978 was issued to the appellant by the Deputy Registrar (Housing), Madurai Region, Madurai. The said fact is not in dispute between the parties to the proceeding. Admittedly, the respondent herein filed an appeal questioning the correctness of the sale and issue of Sale Certificate as seen in Ex.A.1 dated 24.10.1978 in C.M.A. (CS) No. 9 of 1980 on the file of the District Judge - cum - Special Tribunal for Co-operative Cases, Madurai. The learned District Judge / Special Tribunal for Co-operative Cases, Madurai, heard the arguments of both sides and dismissed the appeal confirming the order of the Deputy Registrar (Housing), Madurai, passed in C.E.P. No. 11/76-77 dated 06.12.1977. Admittedly, there is no further proceedings against the order passed in C.M.A. (CS) No. 9 of 1980 as seen in Ex.A.2 and it has become final. Therefore, it is evident that the appellant Society has become the absolute owner of the suit property by virtue of the purchase made and issue of Sale Certificate as seen in Ex.A.1 dated 24.10.1978. The respondent herein, who lost the property in the proceedings initiated against him as mentioned above, has no right to question the right and title of the appellant Society to the suit property in the above said circumstances.
8. The learned counsel appearing for the respondents herein vehemently contends that the title of the appellant Society had extinguished because of the fact of not taking action for delivery of the possession of the demised property within one year from the date of the sale becomes absolute in favour of the appellant Society as contemplated under Article 134 of the Limitation Act, 1963, and in view of the fact of non-initiation of proceedings as contemplated under Section 47 of the Code of Civil Procedure. It is also contended by the learned counsel appearing for the respondents that in view of the fact of extinguishing of title to the suit property, the appellant Society has no right to ask for declaration or possession with regard to the suit property.
9. Per contra, the learned counsel appearing for the appellant Society contends that the title to the suit property for the appellant Society cannot be extinguished in view of not initiating proceedings in Execution Court under Article 134 of the Limitation Act, 1963, referred to above or for not initiating action under Section 47 of the Code of Civil Procedure. The learned counsel appearing for the appellant herein further contends that the appellant Society has got every right to come forward with a suit based on its title. That apart, the learned counsel contends that the tenant Abdul Muthalif, who was in possession at the time of purchasing the property in auction by the appellant Society, had not only attorned the tenancy but also delivered possession to the appellant Society and the said fact is supported by the verdicts of Courts and documents covered under Exs. A.4 to A.6 and A.8 to A.16.
10. A perusal of Ex.A.4 dated 12.11.1977, letter written by Abdul Muthalif to the President of the appellant Society, would disclose that the appellant Society had informed to Abdul Muthalif about the purchase of the suit property in public auction and had asked to attorn the tenancy by paying rent. Abdul Muthalif had informed to the appellant Society that the above said fact was informed to the first respondent herein, who, in turn, had informed that he had initiated proceeding against the sale of the suit property in favour of the appellant Society in public auction. The same information was furnished by Abdul Muthalif to the appellant Society in the letter Ex.A.5 dated 10.6.1978. Ex.A.6 dated 03.7.1978 is the letter sent by Abdul Muthalif to the Advocate for the appellant Society. In the said letter, Abdul Muthalif had sought for the date of delivery of the suit property to the appellant Society and also informed about the pendency of the appeal proceedings initiated by the respondent. It is specifically stated in Ex.A.6 by Abdul Muthalif that he is prepared to pay the rent to the appellant Society if the dispute with regard to the ownership of the suit property is settled. It will otherwise mean that he was prepared to attorn the tenancy in favour of the appellant Society subject to the result of the appeal proceedings pending in C.M.A. (CS) No. 9 of 1980 before the District Judge - cum - Special Tribunal for Co-operative Cases, Madurai.
11. Ex. A.10 is the judgment in the suit in O.S. No. 688 of 1979 filed by the appellant Society against Abdul Muthalif for evicting him and for delivery of possession to the appellant Society herein as plaintiff and also for arrears of rent and mesne profits. After contest, the learned District Munsif, Srivaikuntam, in O.S. No. 688 of 1979 has held that the appellant Society is the owner of the suit property, that the said Abdul Muthalif had already attorned the tenancy in favour of the appellant Society and that the appellant is entitled to the arrears of rent from the date of sale of the suit property in public auction in favour of the appellant Society. A perusal of Ex.A.10 further would disclose that the delivery of possession sought for by the appellant Society was negatived. Ex.A.11 is the decree granted in O.S. No. 688 of 1979 referred to above. The appellant Society as appellant preferred an appeal in A.S. No. 148 of 1981 on the file of the Additional Subordinate Judge, Tuticorin, against the judgment and decree dated 24.4.1981 in O.S. No. 688 of 1979 on the file of the learned District Munsif, Srivaikuntam. Exs. A.12 and A.13 dated 18.12.1982 are the judgment and decree in A.S. No. 148 of 1981. The Appellate Court also, after considering the appeal on merits, has confirmed the verdict of the trial Court. Therefore, it is evident from Exs. A.10 to A.13 that the appellant Society was held to be the owner of the suit property, the tenant Abdul Muthalif had attorned the tenancy in favour of the appellant Society as per Exs. A.7 and A.8 marked in the above said suit and that the appellant is entitled to recovery of arrears of rent from Abdul Muthalif. The above said judgment has become final as seen from the records available before Court in the year 1982.
12. The learned counsel appearing for the respondents herein contends that he is not a party to the proceedings initiated in O.S. No. 688 of 1979 and A.S. No. 148 of 1981 referred to above and that, therefore, the above said decisions will not be binding on him. It is relevant to point out that the property of the respondent herein was brought to sale and the said property was purchased by the appellant Society to whom a Sale Certificate was issued as seen in Ex.A.1 dated 24.10.1978. The right and title to the suit property in Appellant Society were confirmed in the appeal in C.M.A. (CS) No. 9 of 1980 by the competent Court as seen in Ex.A.2 dated 18.4.1980. The said decision has become final admittedly. Abdul Muthalif is none other than the tenant of the respondents herein. As already pointed out, the Courts have concluded, after contest between the landlord and tenant in O.S. No. 688 of 1979 and in appeal in A.S. No. 148 of 1981, that there is attornment of tenancy by the tenant in favour of the appellant Society.
13. The Honourable Apex Court in TIRUMALA TIRUPATI DEVASTHANAMS v. K.M. KRISHNAIAH has held as follows:
"A judgment not inter partes is admissible in evidence under Section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. ........... .......... ........... a previous judgment not inter partes, was admissible in evidence under Section 13 of the Evidence Act as a "transaction" in which a right to property was "asserted" and "recognized". ........... .......... ........... A previous judgment, not inter partes was admissible in evidence under Section 13 to show who the parties were, what the lands in dispute were and who was declared entitled to retain them. ............... ............. ...........
For the aforesaid reasons, we reject the contention of the learned counsel for the respondent - plaintiff and hold that the TTD could rely on the judgment in O.S. No. 51 of 1937 as evidence to prove its title in regard to the suit property, even though the present plaintiff was not a party to that suit."
14. In view of the decision of the Honourable Apex Court referred to above, the contention raised by the learned counsel for the respondents herein that the decision rendered in O.S. No. 688 of 1979 and A.S. No. 148 of 1981 cannot be applied against him as he was not a party to the above said proceedings cannot be accepted. If the verdict given in the above said judgments are taken into consideration, it is quite clear that the tenant Abdul Muthalif had attorned the tenancy in favour of the appellant Society and, therefore, the Court in the above said suit and appeal had directed to pay the rent to the appellant Society from the date of sale.
15. Ex. A.14 dated 28.01.1983 is the letter given by Abdul Muthalif to the President of the appellant Society. A perusal of Ex.A.14 would disclose that the said Abdul Muthalif had vacated the suit property on 25.01.1983 and the said fact has been informed to the President of the appellant Society. If there is no attornment of tenancy as already decided by the Court, after hot contest, there is no need for Abdul Muthalif to communicate the fact of vacating the demised premises to the appellant Society. That is also a point in favour of the appellant Society.
16. Ex.A.15 dated 31.01.1983 is the letter given by Mohammed Hussain, brother of Abdul Muthalif, to the appellant Society wherein he had admitted the delivery of possession of the suit property to the appellant Society on 31.01.1983. It is also admitted in the said letter that he will pay the arrears of rent for four months without default along with the trees standing in the demised property. P.W.2 Jegannathan is one of the attestors of Ex. A.15. Of course, P.W.2 is the former Secretary of the appellant Society. But he would state that the suit property was handed over to the appellant Society by Mohammed Hussain, brother of Abdul Muthalif, as mentioned in Ex. A.15 and he has attested the document Ex. A.15 executed in connection with delivery of possession by the tenant to the appellant Society. D.W.1, the first respondent herein, would admit that there is no strained relationship between him and Abdul Muthalif and his brother. He would also admit that there is no strained relationship between him and P.W.2 as well as to the President and Secretary of the appellant Society. The above said fact would disclose that there can be no reason to give evidence by P.W.2 against the interest of D.W.1 and to support the genuineness of Ex. A.15. If the said facts are taken into consideration, it is quite clear that physical possession was handed over to the appellant Society by the tenant even on 31.01.1983.
17. The learned counsel appearing for the appellant has brought to the notice of this Court the decision reported in TINCOURIE MAZUMDAR AND ANOTHER v. SRI KISHAN CHAND BORAL AND ANOTHER . A Division Bench of the Calcutta High Court in the said decision has held as follows:
"Mere failure on the part of an auction-purchaser to take delivery of possession within the time limited by Art. 180 of Sch. I, Limitation Act is to make it difficult for him to seek the assistance of the Court in order to put him into possession. Inspite of his failure in that behalf he may get into possession by an amicable arrangement with the judgment-debtor or in any other way. His title remains alive unless it is lost either by way of a sale gift etc. or by operation of some stature, for example S. 28, Limitation Act."
............. ............ ............ ............ ............. ............ ............ ............ Art. 180, Limitation Act does not prescribe the period of limitation for the institution of a suit by the auction-purchaser. Article 180 merely prescribed the period of limitation for an application for delivery of possession to the auction purchaser.
The period of limitation prescribed for a suit by an auction-purchaser in a case like the present where the judgment-debtors were in possession at the date of the sale is prescribed by Art.138, Limitation Act which prescribes the period of 12 years from the date when the sale becomes absolute."
18. The decision referred to above would not only disclose that the period of one year prescribed under Article 134 of the Limitation Act is only for filing a petition in Execution Court but also for filing a suit based on title within a period of 12 years. The above said decision further would disclose that possession of the property can be taken by the auction purchaser not only through Execution Court or by an amicable arrangement with the judgment debtor but also by other way. But in this case, the respondents herein are seriously fighting with the appellant Society from taking delivery of possession inspite of the purchase made by the appellant Society and that, therefore, there is no chance of taking possession by amicable settlement. But the appellant Society has negotiated with the tenant and had made him to attorn the tenancy in favour of the appellant Society after disposal of the appeal in C.M.A. (CS) No. 9 of 1980 referred to above and got possession on 31.01.1983 after institution of suit in O.S. No. 688 of 1979 and also appeal in A.S. No. 148 of 1981 referred to above.
19. In view of the said position, the contention raised by the learned counsel for the respondents herein that the appellant Society had failed to take delivery of possession as contemplated under Section 134 of the Limitation Act within the period of one year by filing a petition before the Execution Court and, therefore, the appellant Society got its title extinguished cannot be accepted.
20. A perusal of Ex. A.17 dated 26.7.1983, complaint given to the Police by the appellant Society against the first respondent herein and the registration of the First Information Report, and receipt issued by the concerned Police as seen in Ex.A.18 dated 10.12.1983, would disclose that the appellant Society had specifically stated that they have taken possession of the demised property on 31.01.1983 and the first respondent herein had trespassed into the suit property in the second week of February 1983. The above said documents would also lent support to come to a conclusion that possession of the suit property ought to have been taken by the appellant Society from the tenant Abdul Muthalif on 31.01.1983. The respondent, who has no right, title and possession to the suit property, has no right to enter into the suit property subsequent to 31.01.1983. In any event, the fact of entering into the suit property after 31.01.1983 by the first respondent herein has to be termed only as a trespass and the respondent has to be treated only as a trespasser. The appellant Society, who has got title to the suit property by virtue of the purchase made by the Society, has got every right to file a suit for recovery of possession from the trespasser based on title.
21. A Division Bench of the Calcutta High Court in the case reported in PROVINCE OF BENGAL v. PROBASH CHANDRA GHOSE AND OTHERS has held as follows:
"An omission on the part of the auction-purchaser to take possession within three years of the sale being made absolute as required by Art. 180, Sch. 1, Limitation Act, does not extinguish the title of the auction-purchaser. The Bench also pointed out that the title of an auction-purchaser, may be extinguished either by transfer 'inter vivos' or 'in invitum' or by the operation of some statute or by adverse possession.
............ ................ S. 28, Limitation Act, contemplates a suit for recovery of possession of an auction purchaser of immoveable property as provided for in Art. 137 or Art. 138, Limitation Act, that is, if the auction-purchaser fails to take possession within a period of 12 years from the date when the sale becomes absolute, the title becomes extinguished under S. 28, Limitation Act, and the title becomes transferred to the persons who were in possession for the requisite period."
22. In SHYAM NATH AND OTHERS v. DURGA PRASAD, ETC. , it has been held that the rights of auction-purchaser were extinguished by S. 28 of Limitation Act. Rights, if any, would accrue in favour of judgment-debtor and not in favour of objector if the auction purchaser had not filed an application for delivery of possession of the property purchased in Court auction in execution of money decree within the period prescribed under the relevant Article after the date of confirmation of sale and suit also was not instituted within 12 years from the date when sale became absolute.
23. In UMA SHANKER (DEAD) AND OTHERS v. SARABJEET (DEAD) BY L.Rs. AND OTHERS , the Honourable Apex Court was pleased to hold as follows:
"On assessment of evidence, the trial Court was right in coming to the conclusion that on account of the dispossession of Damri Lal after the compromise decree, a fresh cause of action arose in his favour. There was no occasion for Damri Lal to have the compromise decree executed since he has given possession under the compromise decree. It was his dispossession thereafter which gave rise to the next round of litigation. Such litigation is not barred under Section 47 of the Civil Procedure Code. Section 47 bars a separate suit only in respect of questions relating to the execution, discharge or satisfaction of the decree. If there is a subsequent dispossession after the decree for possession is complied with, a suit to obtain possession is not barred simply because there was an earlier decree obtained by the plaintiff for possession which decree had been complied with. In fact, there will be no question of executing the earlier decree when it has already been complied with".
24. In PATTAM KHADER KHAN v. PATTAM SARDAR KHAN AND ANOTHER , the Honourable Apex Court was pleased to hold as follows:
"There can be a variety of factors conceivable by which delay can be caused in issuing the sale certificate. The period of one year limitation, now prescribed under Article 134 of the Limitation Act, 1973, in substitution of a three year period prescribed under Article 180 of the Indian Limitation Act of 1908, is reflective of the legislative policy of finalizing proceedings in execution as quickly as possible by providing a quick forum to the auction-purchaser to ask delivery of possession of the property purchased within that period from the date of the sale becoming absolute, rather than from the date of issuance of the sale certificate. On his failure to avail such quick remedy, the law relegates him to the remedy of a suit for possession in a regular way".
25. The principles laid down by the High Courts and the Honourable Apex Court would disclose that the fact of not initiating proceedings under Section 47 of the Code of Civil Procedure as contemplated under Article 134 of the Limitation Act, which is for quicker remedy, cannot bar the auction purchaser to approach the competent Court under common law to take delivery of possession within a period of 12 years from the date of the sale being made absolute. Therefore, the contention raised by the learned counsel appearing for the respondent that the suit is barred under Section 47 of the Code of Civil Procedure cannot be sustained in view of the case laws cited above.
26. The learned counsel appearing for the respondents relied on the decision reported in HARNANDRAI BADRIDAS v. DEBIDUTT BHAGWATI PRASAD AND OTHERS to support his contention that the suit will be barred for want of initiating proceedings under Section 47 of the Code of Civil Procedure. Of course, it has been held by the Honourable Apex Court in the case cited above that as a result of amendment of Section 47, the purchaser at a sale in execution of a decree, whether he is the decree-holder or not, is unquestionably a party to the suit for the purpose of Section 47. It has also been held that having regard to this, all questions arising between the auction-purchaser and the judgment-debtor must be determined by executing Court and not by a separate suit. It is relevant to point that it has already been held that possession of the suit property has been taken from the tenant of the demised premises by the appellant Society even on 31.01.1983 and the first respondent herein had trespassed into the suit property subsequently and is also denying the title of the appellant Society to the suit property. Therefore, it is a separate cause of action and, therefore, the appellant Society is entitled to file a suit on that separate cause of action against the respondents herein. In view of the said position, the decision of the Honourable Apex Court will have no application to the facts and circumstances of this case. In view of the said position, the decisions relied on by the learned counsel for the respondents reported in PERUMAL AND OTHERS v. RAMACHANDRA PADAYACHI AND OTHERS (1982 MLJ 65) and KASI PADAYACHI v. MUTHUKUMARASWAMI NAIDU (1980 (1) MLJ 259) will also have no application to the facts and circumstances of this case.
27. In view of the foregoing reasons, this Court is not able to agree with the concurrent finding of the Courts below that the appellant Society is not entitled to the relief of declaration and possession as prayed for. The appellant Society is also entitled to recover past and future mesne profits as already ordered in the earlier proceedings. The quantum of past and future mesne profits due to the appellant Society from the respondent from the date when he is in occupation of the property as a trespasser will be decided in a separate proceedings under Order XX Rule 12 of the Code of Civil Procedure. In view of the said position, the judgment and decree passed by the first appellate Court have to be set aside and accordingly, set aside.
28. In fine, the judgment and decree of the first Appellate Court are set aside and the Second Appeal stands allowed. The appellant is entitled to the reliefs of declaration, possession and damages from the date of trespass, as prayed for in the suit. The past and future mesne profits and damages due to the appellant Society from the respondents have to be worked out under Order XX Rule 12 of the Code of Civil Procedure separately. Time for delivery of possession is two months from the date of receipt of a copy of this order. In view of the peculiar circumstances of this case, both parties are directed to bear their own cost. In view of the disposal of the second Appeal, the petition in C.M.P. No. 7789 of 1992 is closed as unnecessary.