JUDGMENT :

DEBANGSU BASAK, J.

1. Appeal is at the behest of a defendant in a suit for eviction and directed against Order No.240 dated October 7, 2023 passed in Title Suit No.65 of 2005.

2. By the impugned order, the learned Trial Judge accepted the report of the Commissioner appointed for the purpose of calculation of mesne profit and passed a decree for mesne profit.

3. Learned Senior Advocate appearing for the appellant refers to a list of events. He submits that, the appellant was put into possession of the immovable property concerned on May 25, 1991. A suit for eviction and mesne profit was filed by the respondent on October 20, 2001. Decree for eviction was passed on November 30, 2005. An appeal was preferred against such decree on May 18, 2006 when an interim order was passed. The Appeal Court permitted the learned Trial Judge to proceed with the ascertainment of mesne profit in terms of thereof. The Advocate Commissioner submitted a report before the learned Trial Judge. Such report was rejected by the learned Trial Judge by an order dated April 3, 2008. Thereafter, the learned Trial Judge accepted the suggestion of the respondent to appoint M/s Talbot and Co. as a Commissioner by an order dated November 25, 2014 and appointed M/s Talbot and Co. as the Commissioner to quantify the mesne profit.

4. Learned Senior Advocate appearing for the appellant submits that, on December 18, 2014, M/s Talbot and Co. prepared a report which was accepted by the learned Trial Judge on September 7, 2016. Such order of September 7, 2016 was assailed by way of a revisional application being CO No.456 of 2017 which was dismissed by an order dated May 1, 2018.

5. Learned Senior Advocate appearing for the appellant submits that, the Division Bench allowed the appeal of the appellant directed against the decree of eviction by an order dated November 14, 2018. In a Special Leave Petition directed against an order dated November 14, 2018, the Hon’ble Supreme Court set aside the same and permitted the appellant to vacate the premises by April 10, 2020.

6. Learned Senior Advocate appearing for the appellant submits that, appellant also assailed the order dated May 1, 2018 passed by the Revisional Court. The Hon’ble Supreme Court by an order dated October 27, 2020 permitted the appellant to raise all points with regard to the calculation of mesne profit before the learned Trial Judge. He points out that, the appellant vacated the immovable property on December 31, 2020 and thereafter, the impugned order was passed.

7. Learned Senior Advocate appearing for the appellant submits that, in view of the order dated October 27, 2020 passed by the Hon’ble Supreme Court leaving all points open to be considered by the learned Trial Judge while quantifying the mesne profit, the learned Trial Judge erred in proceeding on the basis of that, all points raised by the appellant with regard to the quantification of the mesne profit stood settled by the order dated September 7, 2016. He submits that, learned Trial Judge misconstrued and misapplied the directions contained in the order dated October 27, 2020 passed by the Hon’ble Supreme Court.

8. Learned Senior Advocate appearing for the appellant refers to the report of the Commissioner quantifying the mesne profit. He submits that, the Commissioner proceeded on the basis of hearsay evidence. No documentary evidence was made available with the report of the Commissioner for the purpose of arriving at the rental income of the properties in the surrounding area. Moreover, he points out that, the commissioner did not take into account the rentals of the properties in which the Government or Government agencies are tenants in or around the vicinity of the immovable property concerned. Consequently, according to him, the calculation of mesne profit as done by the Commissioner is without any basis. According to him, the Commissioner proceeded on the basis of hearsay evidence and took into consideration abstract figures.

9. Learn