Patna High Court
Umesh Chandra Karan And Ors. vs Shail Kumari Devi (Substituted) And ... on 19 August, 2006
Equivalent citations: AIR2007PAT10, AIR 2007 PATNA 10, 2007 (2) AIR JHAR R 241, 2007 A I H C (NOC) 56 (PAT), (2006) 3 PAT LJR 553
Author: Syed Md. Mahfooz Alam
Bench: Syed Md. Mahfooz Alam
JUDGMENT Syed Md. Mahfooz Alam, J.
Page 2023
1. The present second appeal has been filed against the judgment dated 6.6.1989 passed in Misc. Appeal No. 14/1986 / 6/1988 by Sri Kripa Shambhu Sharan, 1st Additional District Judge, Madhubani upholding the judgment dated 19.02.1986 passed by Sri R.N. Singh, Munsif, Jhanjharpur in Title Suit No. 17/8 of 1966/72 by which he allowed the prayer of the decree - holder -respondents for grant of mesne Page 2024 profit at the rate of Rs. 200/- per annum with interest at the rate of 6 per cent per annum from the date of dispossession till the delivery of possession of the suit land.
2. The brief facts of the case are as follows:
Respondent, Janardan Lal Das, filed Title Suit 17/1966 / 8/1972 in the court; of Munsif, Jhanjharpur for declaration of his title and recovery of possession in respect of 2 dhurs of land of survey plot Nos. 392 and 389, respectively, situated in village Simra under Madhubani Sub-Division. Another Title Suit No. 137/1965 / 7/1972 was filed by the father of appellant Nos. 1 and 2 in the court of Munsif, Madhubani against the respondent for declaration of title and recovery of possession in respect of the land measuring 15 dhurs appertaining to plot No. 39. Both the title suits were heard analogous and by a common judgment dated 29.3.1972, both the suits were disposed of by 2nd Additional Munsif, Madhubani. By the said judgment, Title Suit No. 17/1966 was decreed in part. Against the said judgment and decree, the defendant-appellant preferred appeals but lost the first appeal as well as second appeal.
Further case is that after the judgment in Title Suit No. 17/1966 was pronounced the plaintiffs-respondents filed an application on 15.11.1972 under Section 152 of the Code of Civil Procedure for amendment in the said judgment and decree dated 29.3.72. On filing of the application, Miscellaneous Case No. 52 of 1972 was registered. By filing of the amendment petition the plaintiffs respondents prayed for amendment in the judgment and decree for adding the relief of grant of mesne profit against the defendants - appellants. The application was heard by the learned Munsif, Jhanjharpur and the same was allowed, by the learned Munsif by order dated 15.11.1972. Accordingly., judgment and decree passed in Title Suit No. 17 of 1966 was amended and the prayer for grant of mesne profit was allowed to be added in the judgment and decree. Thereafter the learned Munsif proceeded for assessment of quantum of mesne profit and thereafter on perusal of the materials on record, the learned Munsif, Jhanjharpur at Madhubani by his order dated 19.2.1986 determined the quantum of mesne profit and assessed the mense profit at the rate of Rs. 200/-per annum with interest at the rate of 6 per cent per annum from the date of dispossession of the plaintiffs from the suit land till the delivery of possession to the decree-holder. Against the said judgment dated 19.2.1986 passed by the learned Munsif, Jhanjharpur, Misc. Appeal No. 14 of 1986 was preferred by defendant Umesh Chandra Karn (defendant of Title Suit No. 17/1966) which was finally disposed of on 6th June, 1989 by the 1st Additional District Judge, Madhubani, who dismissed the appeal, Against the said order of dismissal, the defendants - appellants have preferred this appeal.
3. At the time of admitting this appeal on 5.9.1990, the following substantial questions of law were formulated by this Court for decision which are as follows:
(i) Could the learned courts below order for amendment of the plaint on the basis of an application filed under Section 152 of the Code which only provides for the amendment of the judgment, decree and order?
(ii) Could the judgment and decree be amended under Section 152 of the Code without amending the plaint by a court which had already become functus officio with regard to the amendment of the plaint?
Page 2025
(iii) Could the plaint be amended by the impugned order passed under Section 152 of the Code much after passing of the judgment and decree especially when there is a provision in Rule 4 of Order 14 for the amendment of the plaint?
(iv)Was the petition filed for the amendment of the plaint, judgment and decree barred under Sub-sections (4) and (5) of Section 11 of the Code?
(v) Could the judgment and decree be amended under the facts and circumstances of the case by filing a petition under Section 152 of the Code especially when there was an appeal and Second Appeal against the said judgment and decree and they were dismissed?
4. It has been argued by the learned Advocate of the respondents that this is the second appeal and this second appeal has been preferred against the concurrent findings of the two courts below whereby both the courts below have allowed the claim of the plaintiffs for awarding mesne profit to the plaintiffs - respondents. The learned Advocate of the plaintiffs - respondents argued that in second appeal this Court is not empowered to interfere with the concurrent findings of the courts below unless the court finds that the findings are perverse. In this regard he has placed reliance upon my own judgment delivered in Second Appeal No. 134 of 1990 in the case of Tarak Nath Singh (D) through heirs and Anr v. Deena Nath Singh and Ors. reported in 2006 (2) BBCJ V-5 page 241. The learned Advocate submitted that as the findings of the courts below with regard to the ascertainment of the mesne profit cannot be said to be perverse and the learned Advocate of the appellants has failed to show that the findings of the courts below on the point of quantum of mesne profit are perverse, this Court in second appeal has got no jurisdiction to interfere with the findings of the courts below. The learned Advocate of the plaintiffs-respondents further argued that the second appeal can only be disposed of on substantial questions of law and not on substantial questions of fact.
5. Relying upon the decision referred above, the learned Advocate of the plaintiffs-respondents argued that during the course of argument, the learned Advocate of the defendants-appellants has failed to point out any illegality in the order dated 19.2.1986 passed by the learned Munsif in Title Suit No. 17/66 and the order dated 6.6.1989 passed by Sri Kripa Shambhu Saran, 1st Additional District Judge in Misc. Appeal No. 14/1986 / 6/1988. The learned Advocate argued that this should be kept in mind that the defendants-appellants had come in appeal against the miscellaneous order passed on 19.2.1986 by Munsif, Jhanjharpur in Title Suit No. 17/1966 whereby he has been pleased to direct the present appellants to pay the mesne profit to the plaintiffs-respondents at the rate of Rs. 200/- per annum with interest at the rate of 6 per cent per annum and not against the order dated 15.11.1972 whereby the learned Munsif had allowed the application of the plaintiffs-respondents filed under Section 152 of the Code of Civil Procedure for amendment in the judgment and decree of Title. Suit No. 17/1966 incorporating the claim of mesne profit by adding the sentence, "The plaintiff of T.S. No. 17/66 shall also be entitled to mesne profit." The learned Advocate submitted that since the order dated 15.11.1972 was never assailed by the defendants-appellants either by filing revision or by filing appeal and the said order attained finality, therefore, in second appeal legality or illegality of the said order cannot be questioned. He submitted that the substantial questions of law which were formulated on 5.9.1990 will show that all the five substantial questions of law are with Page 2026 respect to the order which was passed on 15.11.1972 on the application of the plaintiffs-respondents filed under Section 152 C.P.C. for amendment in the judgment and decree of Title suit No. 17/1966 and not with regard to the order dated 19.02.1986 passed by the learned Munsif, Jhanjharpur in T.S. No. 17/1966 determining the quantum of mesne profit and as such the plea taken by the appellants' lawyer that as the order dated 15.11.1972 passed by Munsif, Jhanjharpur allowing the prayer of plaintiff-respondents for incorporating the relief of mesne profit by way of amendment was without jurisdiction, cannot be available to the appellants at this stage when no appeal was preferred by the appellants against the order dated 15.11.1972 and the said order attained finality. I find substance in the argument of the learned Advocate of the respondents as I find that all the five substantial questions of law formulated in this case are directed against the order dated 15.11.1972 whereunder the application under Section 152 C.P.C. filed by the plaintiffs-respondents for amendment in the judgment and decree of Title Suit No. 17/1966 was allowed.
6. The contention of the learned advocate of the appellants is that since by order dated 15.11.1972 the claim for grant of mesne profit was allowed to be added in the judgment and decree by making amendment in the decree and consequently, order dated 19.2.1986 in Title Suit No. 17/1966 was passed whereby the quantum of mesne profit was fixed and so, the basis of the order passed on 19.2.1986 is the order which was passed on 15.11.1972, as such this Court is entitled to find out that the said order dated 15.11.1972 was legal or not.
7. Keeping in mind the arguments advanced on behalf of both the sides I would like to give my finding on substantial questions of law formulated in this appeal and then I will try to find out whether the findings on substantial question of law will affect the findings of the two courts below regarding ascertainment of mesne profit.
Substantial Question of Law No. (i) & (iii)
8. It has been argued by the learned Advocate of the appellants that the very basis of the order by which grant of relief of mesne profit was added in the judgment and decree dated 29.3.1972 in Title Suit No. 17 of 1966 is illegal and without jurisdiction and as such, the subsequent proceeding for ascertainment of quantum of mesne profit and the subsequent order dated 19.02,1986 regarding the quantum of mesne profit are illegal and without jurisdiction. He submitted that under Section 152 of the Code of Civil Procedure (hereinafter to be called as "C.P.C.") only clerical or arithmetical mistakes in judgments, decrees or orders can be corrected but the grant of mesne profit does not come within the purview of clerical or arithmetical mistakes and as such, the very order dated 15.11.1972 whereby the learned Munsif allowed the application of the plaintiff-respondent filed under Section 152 of the C.P.C. and incorporated the grant of relief of mesne profit in the judgment and decree dated 29.3.1972 by way of amendment is illegal.
9. Let me see - whether the argument of the learned Advocate of the appellants is in accordance with law. In order to look into this aspect of the matter, I would like to quote Section 152 of the C.P.C. which runs as follows:-
Amendment of judgments, decrees or orders - Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental Page 2027 slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.
10. From the wording of the section quoted above, it appears that only clerical or arithmetical mistakes in the judgments, decrees or orders or errors arising therein due to accidental slip or omission can be corrected and not any other mistakes. The question is whether the omission of grant of relief of mesne profit in the judgment and decree can come within the purview of the clerical or arithmetical mistake or it may come under the purview of accidental slip or omission. In order to decide this vital question, it is necessary to go through the order dated 15.11.1972. The said order runs as follows:-
This is an application u/s 152 C.P.C, for amendment of the decree and judgment of T.S. No. 17/66 which was analogously heard with T.S No. 137 of 1965 and was disposed of on 29.3.72 by second additional Munsif in respect of the claim for mesne profit. The Plaintiff of T.S. No. 17/66 filed a petition on 15.12.71 for amendment of the plaint in respect of their claim for mesne profit which was allowed by Munsif 1st court. The plaint however could not bee amended due to mistakes of office and the Judgment was delivered. The question of mesne profit did not come into the mind of the court which delivered the judgment only because the plaint was not amended. If the plaintiffs claim for mesne profit had been incorporated in the plaint there was no reason why the claim of mesne profit could not be allowed. It therefore appears to be a case of accidental omission. The suit of the plaintiff of T.S. 17/66 was decreed in full & so they must be entitled to mesne profit. I am unable to accept the O.P.s contention that the Judgment & decree can not be amended in respect of claim for mesne profits after the Judgment has once been delivered. In A.I.R. 1937 Andhra 191 it has been held that accidental omission as to claim for mesne profits in the Judgment & decree can be amended u/s 152 C.P.C. It is therefore ordered that the judgments & decree be amended as follows in the operative portion.
The plaintiff of T.S. No. 17/66 shall also be entitled to mesne profit.
11. Thus, from the order of the learned Munsif quoted above, it is clear that in the opinion of the learned Munsif, non-incorporation of the claim of mesne profit in the judgment and decree dated 29.3.1972 passed in Title Suit No. 17/66 was the case of accidental omission. But I think that the view taken by the learned Munsif is not in accordance with law and I am of the opinion that omission to decide mesne profit and not to award mense profit in the judgment does not come under the clerical mistake or accidental omission and as such, the judgment and decree with regard to omission of mesne profit cannot be corrected under Section 152 of the C.P.C. In this regard reliance can be placed upon the following decisions - AIR 1968 Assam & Nagland Page 66 (Mrs. Swarna Sharma and Ors. petitioners v. Uttam Chandra Medhik and Ors. opposite parties); (Smt. Sooraj Devi, appellant v. Pyare Lal and Anr. respondents) and ( Master Construction Com. (P) Ltd., appellant v. State of Orissa and Anr. respondents). All the abovementioned decisions speak that only arithmetical and clerical error in the judgment and decree can be cured under Sections 151 and 152 of the C.P.C. or under Section 362 of the Criminal Procedure Code. The decision reported in AIR 1968 Assam & Nagaland Page 66 is very specific on this point which emphatically says Page 2028 that mesne profit does not come under the purview of accidental or clerical mistake and so the mistake cannot be cured under Section 152 of the C.P.C. The relevant lines run as follows:
Where, while passing a decree in title suit no order was passed as to whether the decree-holder was entitled to mesne profits or not, the omission is not of accidental or clerical nature, which can be corrected under Section 152. The only remedy is by filing an appeal or review.
12. Thus, on the basis of the decisions cited above, I have no hesitation to hold that under Section 152 of the Code, the omission to grant relief of mesne profit in the judgment and decree cannot be corrected as the same does not come under the purview of 'clerical or arithmetical error or mistake' arising from any accidental slip or omission. I further find and hold that Section 152 of the Code only provides for amendment in the judgment, decree and order and not amendment in the plaint and, therefore, I hold that under Section 152 of the C.P.C. plaint cannot be amended which can only be amended under Order VI Rule XVII of the C.P.C. (wrongly mentioned Order XIV Rule 4 C.P.C.) Accordingly, these substantial questions of law are decided.
Substantial Questions of Law Nos. (ii) & (v)
13. It has been argued by the learned Advocate of the appellants that it is the admitted case of the parties that in the judgment and decree dated 29.3.1972 passed in Title Suit No. 17 of 1966, grant of relief of mesne profit was left out and later on, it was incorporated in the judgment and decree by order dated 15.11.1972 on the basis of the application filed under Section 152 of the C.P.C. by plaintiff decree-holder but even thereafter the amendment in the plaint with regard to the mesne profit could not be incorporated and as such, without amending the plaint, the learned court below was not authorised to grant mesne profit to the plaintiff. His further argument is that the judgment and decree were amended by the trial court after delivering judgment and without amending the plaint, as such, the entire order of amendment in the judgment and decree with regard to the mesne profit is illegal. I have already stated above that under Section 152 of the C.P.C. only clerical and arithmetical error in the judgment and decree can be corrected and there is separate provision in the C.P.C. for amendment of the plaint as provided under Order VI Rule XVII of the C.P.C, Order VI Rule XVII of the C.P.C. is quoted below:
Amendment of pleadings - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.
14. Thus, it appears that there is separate provision for amendment of the plaint in the C.P.C. independent from Section 152 of the C.P.C. I, therefore, hold that under Section 152 of the C.P.C. plaint cannot be amended and since there is nothing on record to show that after the order dated 15.11.1972 the amendment with regard to the relief of mesne profit was made in the plaint, as such the court was not justified to amend the judgment and decree for incorporating the relief of mesne profit in the judgment and decree after passing the judgment. Accordingly, substantial question of law No. (ii) is decided.
15. It has also been argued by the learned Advocate of the appellants that admittedly, against the judgment and decree dated 29.3.1972 passed in Title Suit No. 17/66 Page 2029 appeal was preferred which was pending on 15.11.1972. The said judgment and decree became final as the first appeal and second appeal filed against the said judgment were dismissed. The learned Advocate submitted that when the appeal was pending against the original judgment and decree passed on 29.3.1972, there was no occasion for the court below to entertain the application for amendment filed under Section 152 of the C.P.C, for amendment in the judgment and decree dated 29.3.1972. I am of the view that this argument of the learned Advocate of the appellants is misconceived as Section 152 C.P.C. does not fix any time limit for incorporating amendment in the judgment and decree rather it says that clerical and arithmetical error in the judgment and decree can be corrected at any time either, on the application of any party or on its own motion by the court. In such view of the matter, I find and hold that the judgment and decree can be amended by filing a petition under Section 152 of the C.P.C. even during the pendency of the appeal against the said judgment and decree and accordingly, this substantial question of law No. (v) is decided.
Substantial Question of Law No. (iv)
16. It has been submitted by the learned Advocate of the appellants that the petition filed under Section 152 of the C.P.C. for amendment in the judgment and decree was barred under Explanations (iv) and (v) of Section 11 of the C.P.C. He submitted that as per explanation (v), any relief claimed in the plaint, which is not expressly granted by the decree, shall be deemed to have been refused and since relief regarding the grant of mesne profit was not granted by the court in the judgment pronounced on 29.3.1972, as such it should be deemed that the said relief was refused by the trial court and, therefore, the order dated 15.11.1972 whereby the relief with regard to mesne profit was subsequently added in the judgment and decree by way of amendment is hit under the provision of Explanation (v) of Section 11 of the C.P.C. Against the said argument of the learned Advocate of the appellants, the learned Advocate of the respondents argued that. it is admitted case of the parties that the plaintiff had not claimed the relief for grant of mesne profit in the plaint but by way of amendment he had tried to add the said relief in the plaint which could not be done as a result of which the relief with regard to the mesne profit was not granted in the judgment, delivered on 29.3,1972 and, therefore, it is wrong to say that the relief with regard to the mesne profit was refused by the court and hence, the principle of res judicata as provided under Explanation (v) of Section 11 of the C.P.C. will not apply in this case. I fully agree with the argument of the learned Advocate of the respondents and accordingly, I hold that the petition filed under Section 152 of the C.P.C. for amendment of the judgment and decree was not barred under Explanation (v) of Section 11 of the C.P.C.
17. As it has been found, above that under Section 152 of the C.P.C. only clerical and arithmetical error can be corrected and the relief of mesne profit does not come within the purview of "clerical and arithmetical error" and when it is decided that under Section 152 of the C.P.C., the trial court was not empowered to amend the judgment and decree without amending the plaint, the question is - whether the order dated 19.2.1986 passed in Title Suit No. 17 of 1966 and the order dated 6.6.1989 passed in Misc. Appeal No. 14/86 / 6/66 by the Additional District Judge, Madhubani can be said to be without jurisdiction and should be set aside. The argument of the learned Advocate of the appellants is that both the orders are illegal Page 2030 and without jurisdiction and, therefore, both the orders should be set aside. He further argued that as the order dated 15.11.1972 was nullity, as such there was no necessity for the appellants to get the order set aside in order to challenge the validity of the order dated 19.2.1986 whereby quantum of mesne profit was determined and against which the appeal has been preferred. In support of his argument, the learned Advocate of the appellants has placed reliance upon the decisions (Sunder Dass, appellant v. Ram Prakash, respondent) and (Krishna Singh, petitioner v. Mathura Ahir and Ors. respondents). The relevant lines from the decision are quoted below:-
An executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding.
xx xx xx The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree....
18. Armed with the above decisions, the learned Advocate of the appellants argued that the very order dated 15.11.1972 which is the basis for passing the order dated 19.2.1986 which is under challenge, is illegal and without jurisdiction and since any such order can be challenged even at the execution stage, as such the appellants are entitled to challenge the initial order passed on 15.11.1972 for incorporating the mesne profit in the judgment and decree. I am afraid that if this argument of the learned Advocate of the appellants is accepted then even after a lapse of several decades any order can be challenged.
19. First of all, I would like to say that the order dated 15,11.72 cannot be termed as nullity or cannot. be said to be without jurisdiction. At best it can be said that the order dated 15.11.72 is not in accordance with law. It is settled principle of law that under Section 152 of the C.P.C. the court is empowered to amend clerical or arithmetical mistake in the judgments, decrees or orders arising from any accidental slip or omission. According to the learned Munsif, the non-incorporation of mesne profit in the judgment and decree was a case of accidental omission as inspite of the order passed on 15,12.1971 for amendment of plaint with regard to the addition of mesne profit, the plaint could not be amended. This goes to show that in the opinion of the learned Munsif, the omission for not adding the relief of mesne profit in the judgment was an accidental omission for which remedy lies under Section 152 of the C.P.C, It is true that omission of grant of mesne profit in the judgment cannot be said to be accidental omission but even then the order dated 15.11.1972 cannot be termed as nullity as the same was not wholly without jurisdiction and the learned Munsif had jurisdiction to pass order for amendment of judgment and decree under Section 152 of the C.P.C. I am of the view that only those orders can be termed as nullity which are passed by the court having no jurisdiction. At best the order dated 15.11.72 can be said to be an order not in continuity with the provision of Section 152 C.P.C. but to avoid the said order, it is necessary to get the order set aside. It is the admitted case of the appellants that against the order dated 15.11.1972 the appellants neither preferred any appeal nor revision meaning thereby that the order dated 15.11.1972 Page 2031 attained finality. Not only this but the record also shows that the appellants accepted the validity of the order and participated in the proceeding initiated on the basis of the said order for ascertainment of mesne profit and when they lost before the Munsif, they preferred first appeal, where they again lost and then they preferred this second appeal. This circumstance goes to show that even if the order dated 15.11.1972 was not in accordance with law, the appellants accepted the validity of the order and by not challenging the said order, they waived their claim. I, therefore, hold that at this stage the appellants cannot challenge the order dated 15.11.1972 even though the order was not in accordance with law as the appellants had already waived their right to challenge the above order by taking part in the proceeding initiated on the basis of the order dated 15.11.1972.
20. The learned Advocate of the respondents has argued that for granting any relief to the plaintiff, it is not necessary that the plaintiff must claim the said relief in the plaint. According to his submission, the court is empowered to grant such relief to the plaintiff which appears to the court just and proper in the background of the case of the plaintiff and the materials available on record even though such relief has not been claimed in the pleading. In support of his argument he has placed reliance upon the decision reported in 2005 (1) BBCJ (V) 419 (Sri Bachhraj Nahar, petitioner v. Smt. Nilima Mandal and Ors., opposite parties). According to the decision cited above, it is for the court to decide what relief the plaintiff is entitled to even though the said relief is not; claimed. In the instant case also, initially the relief of mesne profit was not claimed in the plaint although the amendment was allowed to incorporate the relief of mesne profit in the plaint but unfortunately, the same could not be incorporated and, therefore, I am of the view that incorporation of relief of mesne profit in the judgment and decree at a later stage was not wholly without jurisdiction as the learned Munsif was empowered to decide what proper relief should have been granted to the plaintiff on the basis of the materials available on record. I, therefore, hold that adding the relief of mesne profit in the judgment and decree was within the competence of the learned Munsif who was competent to decide as to what relief should have been granted to the plaintiff on the basis of the materials available on record.
21. Lastly, it has been argued by the learned Advocate of the respondents that this Court, while sitting in second appeal has no jurisdiction to interfere with the concurrent findings of the courts below unless it is shown that the findings of the courts below on the point of quantum of mesne profit are perverse. The learned Advocate of the respondents submitted that the learned Advocate of the appellants has not argued on the point of perverseness in the order dated 19.2.1986 passed by the Munsif, Jhanjharpur in Title Suit No. 17 of 1966 and in the judgment dated 6.6.1989 passed in Misc. Appeal No. 14/1986 / 6/1988 and, therefore, the concurrent findings of the courts below on the. point of quantum of mesne profit cannot be disturbed. At the very outset, I would like to say that the learned Advocate of the appellants has not assailed the findings of the learned Munsif, Jhanjharpur with regard to ascertainment of quantum of mesne profit. Likewise, he. has not argued even a single sentence with regard to perversity in the judgment passed in the Miscellaneous Appeal and, therefore, I hold that as the learned Advocate of the appellants has failed to point out any perversity in the judgment dated 19.2.1986 of the learned Munsif, Jhanjharpur and in the judgment dated 6.6.1989 Page 2032 passed in the Misc. appeal, so this Court is not entitled to interfere with the concurrent, findings of the courts below as provided under Section 100 of the C.P.C. In such view of the matter, I find arid hold that adverse findings recorded against the plaintiff-respondents while deciding substantial questions of law and while interpreting the scope of Section 152 of the C.P.C. do not affect the merit of the case and on that basis, the findings of the court below on the point of quantum of mesne profit cannot be reversed.
22. In the result, I do not find any merit in this second appeal and as such, the same is hereby dismissed on contest but without cost. The findings of both the courts below on the point of quantum of mesne profit are hereby confirmed.