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Mesne Profits and Possession are different causes of action

Comment : In this decision the court simply held that Mesne Profits and Possession are different Causes of Action, the COA for Mesne Profits does not accrue till possession turns illegal, which is after possession decree is not complied with. Hence the second suit for mesne profits not hit by mischeif of O2 R2.  
 
Karnataka High Court
Venugopala And Ors. vs Vasantha @ Subha Rao on 14 February, 2003
Equivalent citations: AIR 2003 Kant 279, 2003 (5) KarLJ 268
Author: D S Kumar
Bench: D S Kumar

JUDGMENT

D.V. Shylendra Kumar, J.

1. This second appeal is by the defendants in O. S. 45 /1992 who suffered a decree in that suit which was filed by the plaintiff praying for compensation though termed as mesne profit for being in enjoyment of the suit schedule property. The trial Court had decreed the suit for a sum of Rs. 29,800/,- for the year 1990, 1991, and 1992 ending with March with future interest thereon @ 10% per annum. Aggrieved the defendants had filed regular appeal R. A. 22/1995 before the I Addl. District Judge, D. K. Mangalore but without success. Thereafter the present second appeal is filed under Section 100 C. P. C.

2. The defendants in the suit who are appellants before this court had suffered a decree for yielding possession of the suit properties in O. S. 236/1978 on the file of the Principal Munsiff, Puttur for possession of suit ‘A’ schedule property. Though the suit was dismissed by the trial court it was decreed in appeal preferred by the defendant in the present suit to the lower Appellate Court and the second appeal preferred by the defendant in that suit in R. S. A. 893/1990 before this court was also dismissed on 22-3-1991 confirming the decree passed by the lower Appellate Court. It is thereafter the decree holder had brought the present suit claiming compensation against the judgment-debtor for the use and occupation of the premises which continues to be in the possession of the judgment-debtor notwithstanding the decree that he has suffered. The trial court having quantified the compensation termed as mesne, profit for the sum mentioned above, on appreciation of evidence led in by the parties, the defendant had preferred an appeal which was also dismissed against which the defendant has now preferred this second appeal.

3. I have heard Ms. Vidya Iyer, learned counsel for the appellants at considerable length. She has put-forth several contentions. Firstly learned counsel has contended that the defendant appellant had effected vast improvements in the property, that they had raised areca plants and the trial Court had not at all taken into consideration the vast improvements that they had effected in quantifying the amount of mesne profit or the compensation in favour of the plaintiff. Learned counsel submits that the very definition of the word “mesne profit” under Section 2(12) C. P. C. indicates that a person who had effected improvements can claim necessary deductions in the amount of compensation that he has to pay to the rightful owner of the property. The Courts below having not taken into consideration and having misunderstood the word “mesne profit”, the judgment and decree passed by the courts below are not sustainable and it should be interfered by this Court. Learned counsel has placed reliance on the decision of the Division Bench of this Court reported in 1988(1) KLJ 195 particularly para 17.

4. Secondly, learned counsel submits that the suit itself was not maintainable for claiming mesne profit as the plaintiff had not claimed such mesne profit in the earlier suit O. S. 236/1978 and the present suit was hit by the provisions of Order 2 rule 2 C. P. C. and as such the suit should have been dismissed by the courts below. Learned counsel submits that this appeal is to be allowed and the suit dismissed even at this stage by this court.

5. The third contention is that the trial Court has committed a grave error in awarding the amount of mesne profit as it has done on the premise that the entire suit property is covered by areca plants where as it was not so and that it was very vehemently objected and disputed by the defendant. Learned counsel submits the courts below should have at-least appointed a Commissioner for verification of this aspect of the matter arid then alone could have proceeded to pass any order in favour of the plaintiff.

6. In so far as the submission regarding the suit being hit by the provisions of Order 2 Rule 2, I am afraid I cannot accept such submission canvassed on behalf of the appellants defendants. Admittedly the defendants are persons who had suffered a decree for yielding possession in O. S. 236/1978. That suit though (dismissed had been decreed by the lower Appellate court and confirmed by this court in second appeal. The decree dates back to the original suit claim. Assuming that no claim was made for mesne profit, it does not mean that the plaintiff therein is prevented from putting forth a claim for use and occupation of the premises in respect of which he has obtained a decree and which property continues to be used by the judgment debtor thereafter. The claim towards such use and occupation arises after the date of the decree and the decree gives the cause of action for making a claim of this nature. The cause of action which was not in existence at the time of the filing of the suit is not barred by the provisions of Order 2 Rule 2. In respect of the suit claim for compensation the cause of action arising subsequent to the decree which the plaintiff had obtained pursuant to his suit O. S. 236/1978, it constitutes new cause of action and as such the suit was quite tenable. If at all the plaintiff had not asked for mesne profit in the earlier suit to that extent the plaintiff loses and it does not mean the decree holder cannot seek for compensation for use and occupation of the premises of the land in respect of which he had obtained a decree from the judgment-debtor subsequently also.

7. In so far as the enquiry with regard to the improvements effected by the defendants in the suit schedule land, if at all that was within the scope of the earlier suit for possession. If any improvements had been effected and if that should have been gone into and ascertained to that extent undoubtedly the defendant could have claimed the benefit while computing the mesne profit if they should have been asked for in O. S. 236/1978. The plaintiff not having sought for mesne profit there was no occasion for such enquiry in the suit tiled in the year 1992. The present suit for the use and occupation of the premises is based on such earlier decree and for the premises in respect of which the plaintiff had obtained a decree.

8. The suit claim itself was based on the judgment and decree in favour of the plain-tiff in the earlier round. The defendants being persons in possession of the property in respect of which they had suffered a decree in favour of the plaintiff and their possession subsequent to the decree being to the detriment of the decree holder to the extent that the judgment debtor derived (sic) the decree holder the use and occupation of the land, he is bound to compensate the decree holder. This is precisely what the courts below have done. There was no scope for an enquiry in so far as the so called improvements that had been effected earlier in the present suit filed by the plaintiff.

9. In so far as the 3rd contention of the learned counsel for the appellant is concerned it is with regard to the extent of land in the suit schedule property which is covered by areca plants and this is a question of fact. It is only a matter of quantification of the amount based on facts. There is no scope for interference on the finding of fact by the courts below particularly on the aspect of quantification of the amount that the plaintiff was entitled to recover from the defendant for the use and occupation of the land in the exercise of appellate jurisdiction under Section 100 C. P. C. In the circumstances no scope for admitting this second appeal. Accordingly the same is dismissed


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