IN THE HIGH COURT OF CHATTISGARH AT BILASPUR
SA No 416 of 2001
1 Rudra Singh
2 Smt Kitabmati
3 Dayanidhi
4 Kripanidhi
5 Jagdish
6 Padum Lal
7 Gend Singh
8 Goverdhan
9 Shri Ram
10 Ubelal
11 Shyam Lal
12 Bhagirathi
13 Shiv Prasad
14 Harishanker
...Petitioners
VERSUS
1 Harish Chand Aghariya
2 State of Chhattisgarh
...Respondents
! Appellants by Shri Awadh Tripathi learned counsel
^ 1 Respondent No 1 by Shri H S Patel learned counsel
2 Respondent No 2 State by Shri Akhil Agrawal
learned Panel Lawyer
Honble Shri Dilip Raosaheb Deshmukh J
Dated: 16/04/2007
: Judgment
Appeal under Section 100 of Civil Procedure Code
J U D G M E N T
(Delivered on this 16th day of April, 2007)
Being aggrieved by the judgment and decree dated
21-9-2001, passed in Civil Appeal No.8A/2001 by the
IInd Additional District Judge, Mahasamund, reversing
the judgment and decree passed by the Ist Civil Judge
Class-I, Mahasamund in Civil Suit No.8A/93 on 10-11-
2000, the appellants/defendants have preferred this
second appeal.
(2) Admittedly, Keshavram and Dharam are the
sons of Haldhar, who owned the suit property. On
death of Haldhar, there was a partition between
Keshavram and Dharam, in which the suit property,
i.e., land in area 8.186 hectares, situated in
Village Jamher, Patwari Halka No.21, Revenue Circle
Pithoura, Tahsil and District Mahasamund (hereinafter
referred to as `the suit property’) fell to the share
of Keshavram and he got it mutated in his name. In
the year 1992, Keshavram and his wife died leaving
behind sons Harish Chand, respondent No.1/plaintiff
and Rudra Singh, appellant/defendant No.1.
Appellant/defendant No.2 is the wife and the
appellants/defendants No.3, 4 and 5 are the sons of
Rudra Singh. Appellants No.7 to 14 are the
purchasers of the suit property from appellants No.1
to 5 and are in possession thereof.
(3) The suit of respondent No.1/plaintiff was
founded on the pleading that Keshavram did not
execute any Will on 26-8-1991 in favour of Rudra
Singh and cause of action for filing the suit for
declaration, partition and mesne profits arose in his
favour when Rudra Singh started mutation proceedings
on the basis of the Will dated 26-8-1991
executed by Keshavram.
(4) The appellants/defendants No.1 to 5 resisted the
suit on the basis of the Will executed by Keshavram
in favour of Rudra Singh, the appellant/defendant
No.1 on 26-8-1991. It was pleaded that they acquired
title over the suit property on the basis of the Will
and, therefore, they could confer valid title to
defendants No.7 to 15 by executing several registered
sale-deeds of the suit property.
(5) The appellants/defendants No.7 to 15 pleaded
that in the year 1988, Keshavram had partitioned his
properties between his two sons, namely, Rudra Singh
and Harish Chand, wherein the suit property fell to
the share of Rudra Singh, who was in sole possession
thereof. After the execution of the sale-deed by the
appellants/defendants No.1 to 5 in their favour in
the year 1995-96, by registered sale-deeds the
appellants/defendants No.7 to 15 acquired title and
were in cultivating possession of the suit property.
(6) The learned trial Court dismissed the suit on
the basis of a mere assumption recorded in para 24
that probably in the year 1988, a partition took
place between Rudra Singh and Harish Chand and
thereafter Harish Chand was never in possession of
the suit property. However, it recorded a finding
that execution of Will by Keshavram in favour of
Rudra Singh was not proved.
(7) Aggrieved by the judgment and decree passed by
the learned trial Court, respondent No.1/plaintiff
preferred first appeal before the Additional District
Judge, Mahasamund. The First Appellate Court
affirmed the finding recorded by the lower Court that
execution of Will by Keshavram in favour of Rudra
Singh on 26-8-1991 was not proved and that the said
document was void and ineffective. However, it
reversed the finding regarding partition on the
ground that the appellants/defendants No.1 to 5
herein did not plead the fact of an oral partition in
the year 1988 in the written statement and such a
pleading was raised only by the purchasers, i.e., the
appellants/defendants No.7 to 15 herein. On
appreciation of evidence also, it reversed the
finding that an oral partition took place between
Rudra Singh and Harish Chand in the year 1988,
wherein the suit property fell to the share of Rudra
Singh. On these premises, the First Appellate Court
decreed the suit in favour of respondent
No.1/plaintiff herein for a declaration that both
respondent No.1/plaintiff Harish Chand and the
appellant/defendant No.1, Rudra Singh were the owners
of 1/2 share of the suit property and, therefore, the
sale-deed of the entire suit property executed by the
appellants/defendants No.1 to 5 in favour of the
appellants/defendants No.7 to 15 did not affect the
title of respondent No.1/plaintiff herein over his
share, i.e., 1/2 of the suit property. It further
declared that respondent No.1/plaintiff herein was
entitled to 1/2 share of the suit property and
possession thereof after partition. Mesne profits
against the appellants/defendants No.1 to 5 herein
for Rs.15,000/- were awarded and thereafter at the
rate of Rs.15,000/- per year were awarded against the
appellants/defendants No.7 to 15 herein.
(8) The second appeal was admitted on the following
substantial questions of law :-
“1. Whether the learned lower
appellate Court was justified in
reversing the well reasoned finding
of the trial Court that there was
partition in the joint family in the
year 1988 and in the said partition
the suit property fell in the share
of defendant No.1?
2. Whether the learned lower
appellate Court was justified in
awarding mesne profit at the rate of
Rs.15,000/- per annum for the year
1994-95 from defendant Nos.1 to 5 and
mesne profit at the rate of
Rs.15,000/- per annum for the year
1995-96 till delivery of possession
after partition from defendant Nos.7
to 15?
3. Whether the above finding is
contrary to oral and documentary
evidence available on record and as
such perverse?”
(9) Shri Awadh Tripathi, learned counsel for the
appellants/defendants conceded during arguments that
he would not assail the finding recorded by both the
Courts below relating to execution of Will by
Keshavram in favour of Rudra Singh on 26-8-1991 and
also the finding recorded by the First Appellate
Court that oral partition in the year 1988 between
Rudra Singh and Harish Chand was not established and
would confine his challenge to the impugned order
only on the question of mesne profits. It is,
therefore, not necessary for me to dwell upon the
substantial question No.1 mentioned above in this
judgment. I would, therefore, confine myself only to
the question of mesne profits.
(10) The First Appellate Court, on appreciation of
evidence, has recorded a finding that the yield from
the suit property per year was about 100 bags of
paddy. On this basis, since respondent
No.1/plaintiff herein was not in possession of the
suit property, calculating the 1/2 share of the
respondent No.1/plaintiff herein at 50 bags per year
and the value thereof at the rate of Rs.300/-, it has
awarded mesne profits at the rate of Rs.15,000/- per
year against the appellants/defendants No.1 to 5 till
1994-95 and thereafter by the purchasers, i.e., the
appellants/defendants No.7 to 15.
(11) The claim for mesne profits is virtually a claim
for damages. There is no rigid rule for determining
the amount of mesne profits and it has to be assessed
by a proper exercise of judicial discretion. Where
the plaintiffs had led evidence regarding mesne
profits, it was not necessary to order a separate
enquiry as contemplated by Order 20 Rule 12(1)(c) of
the Code of Civil Procedure. The test for awarding
mesne profits is not what the plaintiff has lost by
his exclusion, but what the defendant has, or might
reasonably have, made by his wrongful possession. In
such a case, the cultivation profits would be the
primary consideration and not the gross yield from
the agricultural land. The true test for assessing
mesne profits is what an ordinary prudent
agriculturist would have grown.
(12) The entitlement of respondent No.1/plaintiff to
mesne profits cannot be questioned in the facts and
circumstances of the case. Respondent No.1/plaintiff
Harish Chand stated in paragraph 3 of his deposition
that the total yield from the suit property was 200
bags of paddy, but admitted in cross-examination, at
paragraph 10, that the total yield was only 100 bags
of paddy every year. Relying upon the admission of
respondent No.1/plaintiff, the First Appellate Court
has assessed the total yield from the suit property
at 100 bags of paddy every year, but overlooked the
fact that 50% of the total yield needs to be deducted
towards expenses as narrated by Harish Chand, P.W.-1,
Samaru, P.W.-2 and Dharamsingh, P.W.-3. In this way
of the matter, the net yield from the suit property
every year, from which the respondent No.1/plaintiff
was deprived of, ought to have been assessed at 50
bags per year. Deducting therefrom 1/2 share of
respondent No.1/plaintiff, the mesne profit ought to
have been assessed on the basis of the value of 25
bags of paddy every year, which would come to
(25xRs.300/-=) Rs.7,500/-. The First Appellate
Court, without deducting the expenses, assessed the
net yield, which would have fallen to the share of
respondent No.1/plaintiff at 50 bags of paddy, which
was not correct. It is, therefore, held that the net
yield, which would have fallen to the share of
respondent No.1/plaintiff from the suit property
every year, were 25 bags of paddy, valued at
Rs.7,500/-. Substantial question No.2 is, therefore,
answered that the learned Lower Appellate Court ought
to have awarded mesne profits at the rate of
Rs.7,500/- per annum for the year 1994-95 from the
appellants/defendants No.1 to 5 and at the rate of
Rs.7,500/- for the year 1995-96 till delivery of
possession from the appellants/defendants No.7 to 15.
(13) In the result, this appeal is partly allowed.
The judgment and decree passed by the First Appellate
Court dated 21-9-2001 is modified only to the extent
of quantum of mesne profits, which are reduced from
Rs.15,000/- to Rs.7,500/- per year. There shall be
no order as to costs.
JUDGE