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1953 Supreme(Pat) 46
PATNA HIGH COURT
S.K.Das, J.
Raghu Mahton
Versus
Bulak Mahton
Appeal From Appellate Decree No. 1551 of 1949 ;
Decided On : MARCH 17, 1953
A claim for mesne profits must be specifically made in the plaint, and the court decree must explicitly allow such a claim. The court cannot award mesne profits as part of a general relief if no specific claim was made.
Headnote:
MESNE PROFITS - CLAIM - COURT DECREE - INTERPRETATION - JURISDICTION - CIVIL PROCEDURE CODE, ORDER 20, RULE 12 - SECTION 145 - STAY ORDER - LIABILITY FOR MESNE PROFITS - INTERPRETATION OF ORDERS - SURETYSHIP - UNDERTAKING - JURISDICTION OVER SURETIES - MAIN LEGAL POINT: A claim for mesne profits must be specifically made in the plaint, and the court decree must explicitly allow such a claim. The court cannot award mesne profits as part of a general relief if no specific claim was made.
Fact of the Case:
The appellant filed a suit for possession of land and, in the alternative, a money decree for the amount paid to the defendants for settling the land. The trial court dismissed the suit against the defendants who had dispossessed the appellant but decreed it against the defendants who had settled the land with the appellant. Both parties appealed, and the appellate court allowed both appeals, holding that the defendants who had dispossessed the appellant had no right of occupancy and that the appellant's title was valid. The appellant obtained delivery of possession and then applied for ascertainment of mesne profits. The trial court granted the application, but the appellate court reversed the decision, holding that the appellant was not entitled to mesne profits.
Finding of the Court:
The court found that the appellant had not made a specific claim for mesne profits in the plaint and that the appellate court decree did not allow such a claim. The court also found that the respondents, who had obtained a stay order during the pendency of their appeal, did not undertake to pay mesne profits as a condition for obtaining the stay order.
Issues: 1. Whether the appellant had made a specific claim for mesne profits in the plaint. 2. Whether the appellate court decree allowed the claim for mesne profits. 3. Whether the respondents were liable for mesne profits under Section 145 of the Civil Procedure Code or independently of that section.
Ratio Decidendi: 1. The court held that the appellant had not made a specific claim for mesne profits in the plaint. The court noted that the plaint did not state the amount of past mesne profits claimed and did not pay ad valorem court fees on such amount, as required by Order 7, Rule 2, of the Civil Procedure Code and Section 7(1) of the Court-fees Act. The court also noted that the plaint did not contain a specific claim for future mesne profits, apart from a statement that Re. 1 was paid as court fees thereon. 2. The court held that the appellate court decree did not allow the claim for mesne profits. The court noted that the decree did not specifically mention mesne profits and that the value of the appeal was only Rs. 1800, which did not include any claim for past or future mesne profits. 3. The court held that the respondents were not liable for mesne profits under Section 145 of the Civil Procedure Code or independently of that section. The court noted that the respondents did not become sureties or undertake any of the obligations mentioned in Clauses (a), (b), and (c) of the section. The court also noted that the respondents did not execute any security or hypothecation bond undertaking to pay mesne profits and that the orders of the Registrar did not impose any such condition.
Final Decision: The court dismissed the appeal, holding that the appellant was not entitled to claim mesne profits.
Das, J.
1. This second appeal by the plaintiff is directed against the judgment and decree passed by the learned third Additional Subordinate Judge of Patna dated 12-8-1949 by which the learned Subordinate Judge reversed the judgment and a final decree for mesne profits passed by the learned Munsif of Bihar on 20-9-1948. The material facts are the following.
The appellant before me brought a suit for recovery of possession of 6.27 acres of land in village Kathauli, police station Bihar. The suit was numbered Title Suit No. 217 of 1940. The case of the appellant was that the land was the bakasht land of the landlords, who were defendants second party in the action, and it was settled with the present appellant by means of a registered document, dated 1-5-1940. It was alleged that the defendants first party (some of the respondents before me) dispossessed the appellant from the land. The appellant made two prayers- (a) a prayer for declaration of the appellants title to the land and recovery of possession; and
(b) in the alternative, a money decree against the defendants second party for Rs. 1,800/-, the amount for which the defendants second party had settled the land with the appellant, in case the appellant was unable to get a decree for possession. The learned Munsif who dealt with the suit in the first instance dismissed the action against the defendants first party but decreed it against the defendants second party for the money claimed. Two appeals were preferred which were heard by the second Subordinate Judge of Patna. One appeal was filed by the defendants second party and the other by the present appellant. The learned Subordinate Judge allowed both the appeals and held that the defendants first party had not acquired any right of occupancy in the lands in suit and they could not resist the title acquired by the present appellant on the strength of the settlement which had been made by the entire body of 16 annas landlords. The operative portion of the order of the learned Subordinate Judge read as follows: "The result is that both the appeals are allowed, the judgment of the learned Munsif is set aside and the suit decreed." This was on 20-11-1944. There were two second appeals to this Court which were both filed by the defendants first party. These appeals were dismissed on the ground that they were concluded by findings of fact. This was on 23-12-1947.
On 19-3-1948, the appellant obtained delivery of possession. Thereafter, the appellant made an application for ascertainment of mesne profits lor the period from 16-8-1940, which was stated to be the date of dispossession in para. 12 of the plaint, to 19-3-1948, the date of delivery of possession. This application was contested by the defendants first party on two main grounds; (a) that the appellant did not claim mesne profits; and (b) that the learned Subordinate Judge who heard the appeal did not pass any preliminary decree for mesne profits and, therefore, the appellant was not entitled to ask for an ascertainment of mesne profits or for a final decree for such mesne profits. The learned Munsif negatived these contentions and held that the appellant was entitled to get mesne profits subject to a set off of a certain sum of money. In appeal the learned Additional Subordinate Judge held that the appellant was not entitled to any mesne profits. He allowed the appeal and dismissed a cross-objection which the appellant had filed with regard to the amount of set off. Hence this second appeal by the appellant.
2. Learned counsel for the appellant has contended before me that the learned Subordinate Judge was wrong in his view that the appellant was not entitled to a final decree for mesne profits. His contention is that on a true reading of the plaint it will be found that the appellant had claimed antecedent and future mesne profits, and the decree of the lower appellate Court, properly interpreted, allowed that claim; therefore, the appellant was entitled to a
