1957 Supreme(AP) 164

Andhra Pradesh High Court
Judges : K.SUBBA RAO, MOHAMMED AHMED ANSARI
Mahant Narayana Dossjee Varu - Appellant
Versus
Board of Trustees, the Tirumalai Tirupati Devasthanamas, Tirupathi - Respondent
Decided On : 08-30-57

The burden of proof lies on the plaintiff who seeks to claim mesne profits. But the onus of proof shifts to the one or other depending upon presumptions and the evidence adduced is the direct or circumstantial. The onus of proving the amounts actually received lies on the defendant as that matter is within his peculiar knowledge. See Section 106 of the Evidence Act. But even in the case of profits that the defendant might have received, though initially the onus might lie on the plaintiff, it may shift to the defendant if the former has adduced some evidence, direct or circumstantial, raising a presumption in his favour. But the question of burden of proof will become immaterial if both parties have adduced evidence and the Court is called upon to ascertain profits on the basis of the evidence so adduced.

Headnote:

MESNE PROFITS - BURDEN OF PROOF - COMMISSIONER'S REPORT - INTEREST - DEDUCTIONS - LIMITATION - CONSTRUCTION OF DECREE - ACCOUNT BOOKS - RELIABILITY.

Fact of the Case:

The Tirumalai-Tirupati Devasthanams filed two suits against Hathiramjee Mutt, one to recover possession of ten items of property and the other to recover one item of property. The learned Subordinate Judge decreed the suits on 15-6-1942 in favour of the plaintiff for possession and for mesne profits from the year 1933. On appeal, the High Court of Madras confirmed the decrees but allowed mesne profits only on items 1, 2, 4, 6, 8, 9 and 10 and items 7 excluding sub-items (d), (n), (o) and (p ). The decree in the other suit was confirmed. Pursuant to the decrees, the plaintiff filed two applications I. As. Nos. 19 of 1946 and 20 of 1946 for the ascertainment of mesne profits. The learned Subordinate Judge appointed a Commissioner to take evidence and enquiry into the mesne profits. After a protracted enquiry -- the delay was mainly due to the obstructive tactics adopted by the defendant -- the Commissioner submitted his first report on 31-7-1951 and his second report on 17-12-1951. Both parties filed objections. The learned District Judge raised the following three points for his consideration: 1. What is the period during which the petitioner is entitled to mesne profits? 2. Whether the petitioners claim for mesne profits should be limited to the amounts claimed in the plaint? 3. What is the amount of mesne profits to which the petitioner is entitled to on each of the items? The appeals run very much into minute details.

Finding of the Court:

1. The burden of proof lies on the plaintiff who seeks to claim mesne profits. But the onus of proof shifts to the one or other depending upon presumptions and the evidence adduced is the direct or circumstantial. The onus of proving the amounts actually received lies on the defendant as that matter is within his peculiar knowledge. See Section 106 of the Evidence Act. But even in the case of profits that the defendant might have received, though initially the onus might lie on the plaintiff, it may shift to the defendant if the former has adduced some evidence, direct or circumstantial, raising a presumption in his favour. But the question of burden of proof will become immaterial if both parties have adduced evidence and the Court is called upon to ascertain profits on the basis of the evidence so adduced. 2. The Commissioner and the learned Judge were justified in relying upon the inquiries made by the Commissioner behind the back of the defendant and on the estimate of the yield from the fruit bearing and other trees, given by the Commissioner, not based upon any evidence taken by him. 3. After the Code of 1882, interest is given as an integral part of mesne profits. Interest becomes payable from the date the profits are due and as they fall due at the end of every year, interest has to be calculated from year to year. The character of interest as part of mesne profits continues to subsist till payment. The definition of mesne profits under Section 2 (12), Civil Procedure Code does not confine interest or mesne profits only up to the date of delivery of possession. But just like in any other suit to recover money with interest the rate of interest after the Court takes cognizance of a suit, can be regulated by a Court in its discretion in the manner prescribed by Section 34, Civil Procedure Code. 4. In the case of house property, in addition to two months rent for taxes and repairs, 1/12 per cent of the grass income should also be deducted towards collection charges. In the case of other properties, 1/10th of the gross income would be deducted towards taxes and collection charges. 5. The plaintiff is entitled to mesne profits from 1933 onwards.

Issues: 1. On whom the burden of proof lies in an enquiry into mesne profits? 2. Whether the Commissioner and the Court, in ascertaining mesne profits, erred in relying upon the Commissioners personal observations and guesses and the result of the inquiries made by him behind the back of the appellant? 3. What is the rate of interest to be awarded in this case? 4. What are the deductions to be made from the gross profits to ascertain the net profits in respect of house property? 5. Whether the plaintiff is not entitled to recover mesne profits beyond a period of three years from the date of the filing of the plaints?

Ratio Decidendi: 1. The burden of proof lies on the plaintiff who seeks to claim mesne profits. But the onus of proof shifts to the one or other depending upon presumptions and the evidence adduced is the direct or circumstantial. The onus of proving the amounts actually received lies on the defendant as that matter is within his peculiar knowledge. See Section 106 of the Evidence Act. But even in the case of profits that the defendant might have received, though initially the onus might lie on the plaintiff, it may shift to the defendant if the former has adduced some evidence, direct or circumstantial, raising a presumption in his favour. But the question of burden of proof will become immaterial if both parties have adduced evidence and the Court is called upon to ascertain profits on the basis of the evidence so adduced. 2. The Commissioner and the learned Judge were justified in relying upon the inquiries made by the Commissioner behind the back of the defendant and on the estimate of the yield from the fruit bearing and other trees, given by the Commissioner, not based upon any evidence taken by him. 3. After the Code of 1882, interest is given as an integral part of mesne profits. Interest becomes payable from the date the profits are due and as they fall due at the end of every year, interest has to be calculated from year to year. The character of interest as part of mesne profits continues to subsist till payment. The definition of mesne profits under Section 2 (12), Civil Procedure Code does not confine interest or mesne profits only up to the date of delivery of possession. But just like in any other suit to recover money with interest the rate of interest after the Court takes cognizance of a suit, can be regulated by a Court in its discretion in the manner prescribed by Section 34, Civil Procedure Code. 4. In the case of house property, in addition to two months rent for taxes and repairs, 1/12 per cent of the grass income should also be deducted towards collection charges. In the case of other properties, 1/10th of the gross income would be deducted towards taxes and collection charges. 5. The plaintiff is entitled to mesne profits from 1933 onwards.

Final Decision: The decree of the lower court is modified accordingly. The parties will pay and receive proportionate costs.