Andhra HC (Pre-Telangana)
S. Subba Rao And Ors. vs Abdul Gafar on 22 October, 2002
Equivalent citations: 2003(6)ALT682, 2003 A I H C 4357, (2003) 6 ANDH LT 682
JUDGMENT P.S. Narayana, J.
1. The unsuccessful defendants in O.S. No. 145 of 1980 on the file of the Subordinate Judge, Machilipatnam had preferred the present appeal being aggrieved by the judgment and decree dated 4-8-1986 made therein.
2. The respondent in the appeal is the plaintiff in the said suit. The respondent-plaintiff filed a suit for recovery of Rs. 18,089-29 ps. being the profits and interest due from the appellants-defendants relating to the schedule land for the years 1970 to 1979 and for costs of the suit.
3. The parties had put in the respective pleadings and the issues were settled and the trial Court after recording the evidence of P.W. 1 and also D.Ws. 1 and 2 and marking Exs. A-1 to A-8 and also Exs. B-1 to B-12, on appreciation of both oral and documentary evidence, had decreed the suit for Rs. 9,724-95ps. with proportionate costs and with subsequent interest at 6% per annum on Rs. 5,750/- from the date of suit till realisation.
4. The respective pleadings of the parties for the purpose of better appreciation of the facts of the case can be looked into at the first instance, which are as hereunder:
The respondent-plaintiff had pleaded that the plaintiff purchased eastern 1/4th plot of 51 1/2 cents in the name of his wife Nazirunnisa under a sale deed dated 16-12-1967 and the plaintiff purchased the third plot from the eastern side of an extent of 51 1/2 cents specified in the plaint schedule by virtue of a sale deed dated 10-4-1970. It was also pleaded that the appellants-defendants along with their father Veerabhadra Rao constitute a Hindu joint family and the said family owned the second plot of 51 1/2 cents out of Ac. 2-06 cents. It was also pleaded that the respondent-plaintiff after purchase of the plaint schedule property got removed the boundary ridge between his two plots and made them a single plot of Ac. 1-03 cent and effected casual repairs, manured, cultivated and transplanted paddy. It was also pleaded that the said Veerabhadra Rao filed O.S. 123 of 1970 on the file of the District Munsif Court, Bandar to the effect that he is entitled to not only his second plot but also the plaint schedule property and filed an application -I.A.No. 721 of 1970 for temporary injunction and had obtained an ex parte interim injunction. Thus, by virtue of the said order, Veerabhadra Rao entered into wrongful possession of the plaint schedule property and since then he had retained possession. It was also further pleaded that the plaintiff herein, the defendant in the said suit, filed an application - I.A.No. 955 of 1970 - to vacate the interim injunction and also filed counter in I.A.No. 721 of 1970 and he had also filed the written statement in the said suit. On 4-7-1974, the said Veerabhadra Rao died in undivided status and the appellants-defendants came on record as plaintiffs 2 to 5 and continued the suit and also the possession of the plaint schedule property. It was also further pleaded that in O.S.No. 123 of 1970 it was held on 29-8-1975 that the said Veerabhadra Rao and after him, his sons are not entitled to the western half i.e. the plaint schedule land of the plaintiff and the injunction was thus vacated.
5. An appeal in A.S.No. 98 of 1975 was filed on the file of the District Court and again in I.A.No. 1344 of 1975 they had obtained ex parte interim injunction on 16-9-1975 and the said appeal was dismissed on 30-4-1979. Thus, from 14-9-1970 till 30-4-1979, the said Veerabhadra Rao and subsequent thereto his sons had been in wrongful possession of the plaint schedule property. It was also pleaded that the plaint schedule land is a fertile land yielding double crop and it fetches a net income of 20 bags of paddy for Sarva and 10 bags of groundnut and 10 bags of Dalva for the second crop. It was further pleaded that the respondent-plaintiff could secure possession of the plaint schedule property only in May, 1979 after the termination of the appeal in A.S.No. 98 of 1975 on 30-4-1979. Thus, in the said circumstances, the respondent-plaintiff instituted the suit claiming the profits.
6. Defendants 1 and 3 filed a written statement substantially denying all the allegations. It was pleaded that as per the alleged sale deed dated 10-4-1970, the plaintiff appears to have purchased 1/4th undivided share in Ac. 2-06 cents in R.S. No. 16/5 of Singarayapalem from one Singaraju Seshagiri Rao, who had neither title nor possession to the suit land. It was also pleaded that the plaintiff has no specific right to any specific property and as such he cannot maintain the suit for profits at all. It was further pleaded that the plaint schedule land along with another 51 1/2 cents abutting on the west has been in possession and enjoyment of the father of the defendants from a very long time having been allotted to his share in the family partition between himself and his brother. The defendants' father and after him these defendants have been in possession and enjoyment of the said land and perfected title by adverse possession also. It is also stated that the plaintiff got removed the bund in between his two plots and made a single plot of Ac. 1-03 cents and cultivated the same with paddy, it is the defendants' father that ploughed the land and transplanted and when the plaintiff made an attempt to trespass into the said land, they filed O.S. No. 123 of 1970 on the file of the District Munsif Court, Bandar and obtained interim injunction and the said suit and the appeal were dismissed and in view of the same, the plaintiff came forward with this speculative suit. Several other aspects had also been pleaded relating to the nature of the land and it was also specifically stated that even in the normal years the yield would be only 3 bags per acre. Defendants 2 and 4 filed an adoption memo.
7. On the strength of the respective pleadings of the parties, the following issues were settled by the trial Court:
(1) Whether the plaintiff is entitled to nine sarva crops, four dalva crops and five groundnut crops as pleaded by him and if so at what rate?
(2) Whether the suit for mesne profits for more than three years prior to the suit is barred by limitation?
(3) Whether the defendants perfected their title to the schedule property and so not liable to pay profits?
(4) Whether the plaintiff cannot maintain the suit?
(5) To what relief"?
8. As already referred to supra, after settlement of issues and after recording evidence the suit was partly decreed and aggrieved by the same, the present appeal had been preferred.
9. Sri Srinivas Rao, learned counsel representing Sri Garapati Krishna Murthy -learned counsel representing the appellants-defendants-with all vehemence had contended that the trial Court had totally erred in decreeing the suit though sufficient material was not placed on the strength of the evidence of P.W. 1 alone, the learned counsel also contended that there is no dispute that what had been purchased by the respondent-plaintiff is only an undivided 1/4th share and unless and until such a party who purchased an undivided share files a suit for partition and gets a specific portion allotted to his share, such party has no right to claim the mesne profits. The learned counsel further contended that even if the definition of mesne profits under the Code of Civil Procedure is followed, unless the possession is wrongful possession or unlawful possession, the plaintiff is not entitled to such relief. At any rate, in the present case the possession of the appellants-defendants during the relevant point of time cannot be styled to be either wrongful possession or unlawful possession and in this view of the matter, the suit as filed itself is not maintainable. The learned counsel also had further contended that the plaintiff having purchased the property under Ex. A-7 to the extent of only 1/4th undivided share had filed the suit for the claim of mesne profits straightaway, which is a misconceived remedy. The learned counsel also had taken me through several other factual aspects and had also contended that the mere fact that a suit was instituted for the relief of permanent injunction would not prevent the opposite party from proceeding further in the matter and hence the claim of mesne profits beyond three years is definitely barred by limitation. The learned counsel also had contended that the present case squarely falls under Article 51 of the Limitation Act, 1963 and the Trial Court had gone wrong in applying Article 113 of the Limitation Act, 1963 and holding that the suit is within limitation. The learned counsel further had taken me through the evidence of P.W. 1, D.W. 1 and D.W. 2 and had contended that the burden to establish the quantum of yielding while claiming mesne profits is on the plaintiff, which he had miserably failed and hence, in this view of the matter also the Court below should have negatived the relief.
10. The learned counsel, to substantiate his contentions, had placed strong reliance on Narayana Dossjee v. Board of Trustees, T.N. Shetti v. Appalarju, T. Venkata Subbamma v. T. Rathamma, Mariumbi v. V. Yeshwanta, Shambu Dayal v. Motila, Muhammed Haneefa Rowther v. Sara Umma, Veera Reddy v. Kodandarami Reddy, 1985 (3) APLJ 54 (SN).
11. Sri Rama Teertha, the learned counsel representing the respondent-plaintiff had made the following submissions:
The learned counsel at the first instance had drawn my attention to Ex. A-4, the certified copy of judgment of the Additional District Judge, Krishna at Machilipatnam, made in A.S.Nos. 98 and 145 of 1975, and had contended that this is a judgment inter-parties and the findings recorded in the said judgment became final and hence the appellants cannot contend anything contrary to the findings which had been recorded in Ex. A-4. The learned counsel further contended that the trial Court had taken into consideration the evidence of P.W. 1 and also D.W. 1 and D.W. 2 and in fact after recording findings in detail had arrived at a conclusion that the respondent-plaintiff is entitled to a portion of the relief only and the relief granted by the trial Court definitely is just and reasonable, which need not be disturbed by the appellate Court. The learned counsel further contended that the question whether Article 51 of the Limitation Act is applicable or Article 113 of the Limitation Act is applicable, will depend upon the facts and circumstances of the case and in view of the peculiar facts, especially in the light of the findings which had been recorded in Ex. A-4, the trial Court had arrived at the correct conclusion to the effect that the residuary Article 113 of the Limitation Act, 1963 alone is applicable to the facts of the case, the learned counsel had also placed reliance on Kumudini Ramdas Shah v. K.M. Mody, . Balappa v. Waman, AIR 1962 Mysore 235. Venkata Ramanayya v. Singayya, 1965 (2) ALT 276 = 1965 (2) An.W.R. 370. The learned counsel further contended that inasmuch as the findings had been recorded relating to the nature of possession and the specific property in Ex. A-4, the contention of the other side that the present suit for the claim of mesne profits for the relevant point of time cannot be maintained at all, cannot be sustained. The learned counsel had pointed out the specific portions of the findings recorded in Ex. A-4.
12. Heard both the counsel at length and also perused the oral and documentary evidence available on record. On the strength of the respective contentions of the parties which had been advanced before this Court, the following points arise for consideration in this appeal.
(a) Whether the suit as framed claiming the relief of profits is maintainable in the facts and circumstances of the case?
(b) Whether the present suit is governed by Article 51 of the Limitation Act, 1963 or Article 113 of the Limitation Act, 1963?
(c) Whether the relief granted by the trial Court is just and reasonable in the facts and circumstances of the case?
(d) If so, to what relief the parties are entitled to?
13. Point No. (a): This point was elaborately argued by both the learned counsel. It is no doubt true that in the pleading itself it was pleaded that the plaintiff purchased the eastern 1/4th plot of 51 1/2 cents in the name of his wife under a sale deed dated 6-12-1967 and the plaintiff purchased the 3rd plot from the eastern side for an extent of 51 1/2 cents mentioned in the plaint schedule under a sale deed dated 10-4-1970. Ex. A-7 is the registered sale deed by Singaraju Sheshagiri Rao for himself and on behalf of his minor sons in favour of the plaintiff. In the cross-examination, P.W. 1 deposed that the contents of Ex. A-7 are true and correct and under Ex. A-7 he purchased joint 1/4th share in Ac. 2-06 cents of land. P.W. 1 also deposed that on the same day his 1/4th share was separated and given possession to him by all the sharers and hence there was no necessity for him to give a notice to all the sharers for partition. P.W. 1 also deposed that after measurement and division only of the 1/4th share purchased by him, Ex.A-7 was executed and registered. However, he has stated that he does not know the reason why it was mentioned in Ex. A-7 that he purchased the joint 1/4th share in Ac. 2-06 cents of land even though his share was separated and given possession to him.
14. The appellants herein, the defendants in the present suit as plaintiffs had instituted a suit - O.S. 123 of 1970 on the file of District Munsif Court, Machilipatnam wherein the present respondent, plaintiff in the present suit, was the defendant and the present appellants being unsuccessful had carried the matter by way of appeal--A.S. 98 of 1975 on the file of the Additional District Judge, Krishna at Machilipatnam which was ultimately dismissed with costs on 30th April, 1979. In the said judgment, the learned Additional District Judge, Krishna at Machilipatnam had stated as follows:
"Seshagiri Rao, the vendor of the defendant, is the son of Chinna Mallapparaju. He sold the land to the defendant. P.W. 6 Seshagiri Rao stated that he has mentioned in Ex. B-5 as if he has sold only undivided share since he intended to file a partition suit. But, however, he has put the defendant in possession of this specific plot. Apart from it, there are various circumstances to prove beyond doubt that deponent is in possession of this disputed land DKLC. His version is that after he purchased the land under Ex. B-5, he removed the bund FDCF of the plaint plot and made a continuous plot GKLJ since the western land is his wife's land. He has been raising paddy crop therein. There is a big separating bund shown as SKC in the plan".
15. Apart from this, in the said judgment there are observations relating to the Commissioner and also finding relating to the possession of the plaintiff herein i.e. the defendant in the said suit relating to DKLC plot. It is needless to say that these findings became final.
16. As already referred to supra, it is no doubt true that in the schedule of Ex. A-7 it is mentioned that the respondent-plaintiff herein had purchased 1/4th undivided share, but, however, in view of the evidence of P.W. 1 coupled with the findings recorded in A.S.No. 98 of 1975 in Ex. A-4, it is clear that the plaintiff herein had been in possession of the specific property and the said possession was disturbed by virtue of an interim injunction obtained by the opposite parties and it is also on record to show that subsequent to the judgment in A.S.No. 98 of 1975 only the respondent in this appeal, the plaintiff, came into possession of the property. The main contention advanced by the learned counsel for the appellants is that nothing prevented the plaintiff herein to approach the Court at a prior point of time and at any rate since the very purchase itself is relating to an undivided share, the question of claim relating to the mesne profits will not arise.
17. Section 2(12) of the Code of Civil Procedure defines mesne profits as follows:
"'mesne profits' of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession".
18. In Muhammed Haneefa Rowther v. Sara Umma (6 supra) it is held (SIC) a co-sharer admittedly in possession of the disputed premises is accountable for receipt of profits during disputed period and claim for profits in that period by other co-sharers cannot be regarded as a claim for mesne profits as defined in Section 2(12) or under Order XX Rule 12 of the Code of Civil Procedure.
19. In Shambu Dayal v. Motilal (5 supra), it was held that possession of co-sharer cannot be wrongful within Section 2(12) of the Code of Civil Procedure and therefore one cannot claim mesne profits against the other in T.N. Shetti v. Appalaraju (2 supra) it was held that the plaintiff - Court auction purchaser of undivided share is entitled to possession only from the date when a specific allotment is made in his favour and a specific allotment is not by a mere division in status and the only legal consequence of a division in status of a joint Hindu family is that the erstwhile coparceners become tenants in common without in principle becoming entitled to a specific portion of the property that belonged to the joint family and the right of the auction purchaser to get mesne profits commences from the date on which his right to possession starts if he is deprived unlawfully of its possession from that date.
20. In Veera Reddy v. Kodandarami Reddy (7 supra) it is held that an alienee from a coparcener is entitled to mesne profits from to the date of which a specific item of property is allotted to him but not from the date of suit. Reliance also was placed on T. Venkata Subbamma v. T. Rathamma (3 supra).
21. There cannot be any dispute that to claim mesne profits, possession must be wrongful or unlawful. Here is a case where no doubt the recital in the document is to the effect that the purchase was undivided 1/4th share, but the evidence of P.W. 1 and also the findings which had been recorded in the prior judgment in A.S. 98 of 1975 on the file of Additional District Judge, Krishna, Machilipatnam are otherwise.
22. In view of the fact that specific findings had been recorded in the prior litigation between the same parties relating to the possession of the specific property by the present plaintiff herein and inasmuch as the evidence of D.W. 1 is also to the effect that forcible entry was made only subsequent to the judgment-Ex. A-4 by the plaintiff. In view of the peculiar facts and circumstances of the case, I am of the considered opinion that the possession of the appellants-defendants during the relevant period is definitely wrongful possession or unlawful possession and hence the contention raised by the counsel for the appellants to the effect that a suit for mesne profits is not maintainable at all on that ground cannot be accepted.
23. Point No. (b): Question of limitation also was argued elaborately by both the learned counsel. It may be appropriate to have a look at Articles 51 and 113 of the Limitation Act, 1963 in this regard and these provisions read as hereunder:
Description of Suit Period of limitation Time from which period
begins to run
51. For the profits of Three years When the profits are
immovable property received
belonging to the plaintiff
which have been wrongfully
received by the defendant.
113. Any suit for which no Three years When the right to sue
period of limitation is accrues.
provided elsewhere in this
Schedule.
24. The main contention advanced by the learned counsel for the appellants-defendants is to the effect that when there is a specific Article governing the field under Article 51 of the Limitation Act, 1963, the trial Court erred in applying Article 113 of the Limitation Act, 1963 which is a residuary Article. The period of limitation prescribed under Article 51 is three years from the date when the profits are received whereas under Article 113 the period prescribed is three years when the right to sue accrues.
25. The learned counsel for the appellants with all emphasis had contended that the relief of mesne profits claimed by the respondent-plaintiff beyond the period of three years is barred by limitation since Article 51 of the Limitation Act, 1963 alone is applicable to the facts of the case. In Mariumbi v. Yeshwanta (4 supra), it was held that the claim of mesne profits must be confined to a period of three years before filing suit. It is not in dispute a litigation was fought by the same parties and by virtue of an order of the Court the respondent-plaintiff herein was prevented from entering upon the land. The details of filing of the suit--O.S. 123 of 1970 on the file of the District Munsif Court, Machilipatnam and carrying the matter by way of appeal had been admitted by both the parties and all the particulars were not spoken by both P.W. 1 and D.W. 1 in this regard. It is also not in dispute that if the accrual of cause of action is taken as the date of judgment--:Ex. A-4, the claim made by the plaintiff is perfectly within the limitation. In Venkata Ramanayya v. Singayya (10 supra), the starting point of limitation in a suit for mesne profits by a Court auction purchaser and the proper Article applicable under the Limitation Act, 1908 had been dealt with at length. Reliance also was placed on Balappa v. Waman (9 supra) and Kumudini Ramdas Shah v. K.M. Mody (8 supra). Here is a case where the parties have been agitating relating to the property in a prior litigation and as per the evidence of D.W. 1 and also the stand taken in the written statement, the suit was thought of only subsequent to the termination of the said litigation and hence, in view of the peculiar facts and circumstances, the trial Court had arrived at a conclusion that Article 113 of the Limitation Act, 1963 is applicable and hence the suit claim is within limitation. I am also in agreement with the view expressed by the trial Court. Inasmuch as this is a matter where by virtue of the pending litigation the respondent-plaintiff could not approach the Court at the earlier point of time and after the dismissal of the appeal--Ex.A-4, the respondent-Plaintiff had rightly instituted the suit well within a period of limitation.
26. Point No. (c): Serious contentions had been advanced by both the counsel on the ground that in the absence of sufficient material the trial Court had granted a decree. However, the learned counsel representing the respondent-plaintiff had submitted that the suit was decreed only partly and in the facts and circumstances of the case a just decision was rendered by the trial Court, which need not be disturbed. It is no doubt true that the evidence of P.W. 1 and D.Ws. 1 and 2 alone is available. No doubt, P.W. 1 and D.W. 1 had deposed about the probable yield and certain other particulars relating to the income out of the land.
27. Learned counsel for the appellants also had placed strong reliance on Narayana Dossjee v. Board of Trustees (1 supra) to the effect that the mesne profits necessary should be the net profits i.e., the profits derived after making deductions towards the necessary expenditure for earning the said profits.
28. As already discussed above, the suit is for recovery of Rs. 18,088.29 ps. with proportionate costs and subsequent interest at 6% per annum on Rs. 5,750/- from the date of the suit till realisation. The plaintiff claimed the profits relating to the plaint schedule property from 14-7-1970 till 30-4-1979 in view of the fact that he was deprived of possession wrongfully and the appellants-defendants had been in possession wrongfully during the period by virtue of O.S.No. 123 of 1970, which was carried by way of appeal in A.S.No. 98 of 1975 on the file of Additional District Judge, Krishna, Machilipatnam. Apart from the oral evidence of P.W. 1, Ex. A-1 dt.17-9-1979 office copy of the registered notice, Ex. A-2 reply registered notice dated 29-10-1979, Ex. A-3 temporary injunction order in LA. 1344 of 1985 in A.S.No. 98 of 1975, Ex. A-4 certified copy of judgment in A.S.No. 98 and 145 of 1978 on the file of the Additional District Judge, Krishna, Machilipatnam, Ex. A-5 copy of petition and affidavit in LA. 134 of 1975 in A.S.No. 98 of 1975, Ex. A-6 certified copy of the commissioner's report in O.S.No. 123 of 1970 on the file of the District Munsif Court, Machilipatnam also had been marked on behalf of the plaintiff. Likewise Ex. B-4 to B-11 alleged cist receipts, Ex. B-12 copy of No. 2 Adangal, Ex. B-1 the registration extract of the sale deed executed by Abdul Kareem in favour of Abdul Nasirunnisa dated 6-12-1967, Ex. B-2 certified copy of deposition of 1st defendant in O.S.No. 123 of 1970 on the file of District Munsif Court, Machilipatnam and Ex. B-3 office copy of registered notice got issued by Singaraju Seshagirirao to Singaraju China Mallaparaju and 7 others had been marked on behalf of the defendants.
29. The trial Court at paragraphs 7 and 8 had dealt with all these aspects in detail and had recorded the findings. P.W. 1 had deposed that the schedule land is fertile land and it yields both the crops and P.W. 1 also had given the details relating to the income and it is no doubt true that except the evidence of P.W. 1 there is no other evidence available on record. It was strenuously contended by the learned counsel for the appellants that on the strength of this material the trial Court had erred in decreeing the suit even partly. The evidence of D.W. 1 is also available apart from the evidence of D.W. 2. D.W. 1 had stated that after the appeal was dismissed the plaintiff had taken forcible possession of 51 cents of land in the entire extent of Ac. 2-06 cents. D.W. 1 also deposed that there is no irrigation facility to this land and the land is rain-fetched and it will be transplanted every year by the end of August. The maximum yield is 8 bags per acre when the yield is good and it is not true to suggest that the land yields 20 bags per acre and D.W. 1 also had given the expenses relating to the cultivation. D.W. 1 further deposed that never groundnut crop was raised in the said land. D.W. 1 also deposed that there are no water facilities to this land. D.W. 1 further deposed that there are about 10 Palmyra trees, small and big, and he had given certain other details. On the strength of the evidence of P.W. 1 and D.W. 1, the trial Court had arrived at a conclusion that the respondent-plaintiff is entitled to a decree for Rs. 9,724-95ps. with proportionate costs and with subsequent interest at 6% per annum on Rs. 5,750/- from the date of suit till realisation. It is not doubt true that as pointed out by the learned counsel for the appellants the due deductions and the other criteria to be followed while ascertaining the mesne profits or fixing the mesne profits had not been cautiously observed. But, however, inasmuch as though the claim was made on the higher side the trial Court after taking into consideration of the facts and circumstances had limited the relief only to some extent, I am of the considered opinion that in the facts and circumstances of the case it is a just decision and hence I am not inclined to interfere with the findings which had been recorded by the trial Court in this regard.
30. Point No. (d): In view of the findings recorded by this Court above, the appeal is devoid of merits and accordingly the appeal is dismissed. But, however, in view of the peculiar facts and circumstances, this Court is not inclined to make any order as to costs.