1. In this 1st defendant's Second Appeal the only question of law which falls for determination is whether on the facts and circumstances of the case, the Courts below were justified in awarding the future mesne profits from date of suit till date of delivery of possession to the respondent plaintiff.
2. The parties to this appeal will be referred to by the rank and position assigned to them in the trial Court.
3. The facts leading to this appeal may be briefly stated as follows:
The plaintiff filed 0. S. No. 18/1970 in the Court of the Principal Munsiff, Hassan.
4. The suit was for redemption of four items of immoveable properties mortgaged to the 1st defendant. It is necessary to state that before the suit was filed as above, the plaintiff had filed Miscellaneous Petition No. 79/1969 and deposited Ra. 9,000/- in the Court. That Miscellaneous. Petition was filed under S. 85 of the T. P. Act. In those proceedings the defendant agreed to receive the amount but declined to deliver possession of one of the four suit schedule properties inasmuch as the 2nd defendant had been in possession of the property by virtue of a lease executed by the 1st defendant in his favour and that on account of the provisions of the Karnataka Land Reforms Act, the land therein had vested in the State Government enabling the tenant to get occupancy rights. in regard to other three properties, the 1st defendant was Willing to deliver possession. The plaintiff applicant in the Miscellaneous proceedings did not agree with that and got the application dismissed and filed the original suit for redemption and delivery of possession. The 1st defendant took the same plea as he had taken in the Miscellaneous proceedings and in the written statement filed by him he expressed his willingness to deliver the other three properties on receipt of the mortgage amount and to give constructive possession of the item of property which was in the possession of his tenant calling upon him to attorn to the plaintiff. Thereafter, the matter was adjudicated by the Land Tribunal and also in this Court regarding the validity of the lease granted by the mortgagee in favour of the 2nd defendant. The plaintiff failed in her attempt to get the lease declared void.
5. The trial Court on the pleadings in the case framed as many as five issues including an issue on the question of maintainability of the suit. But we are only concerned with issue No. 2 which is as follows:
'(2) Whether the plaintiff is entitled to redeem the suit schedule item No. I land and obtain possession of it from the 2nd defendant ?'
In the light of the ultimate decision of the High Court upholding the tenancy created and the occupancy rights granted in favour of the 2nd defendant, the Munsiff decreed the suit directing the 1st defendant to deliver actual possession of suit schedule Items 2 to 4 and constructive possession of suit schedule item No. 1, to the plaintiff on receiving Rs. 9,000/- as well as payment of future mesne profits from date of suit till date of delivery of possession. Aggrieved by the judgment and decree of the trial Court, the defendants filed R. A. No. 86/1973 in the Court of the Civil Judge, Hasam . The plaintiff also filed cross-objections in the lower appellate Court in so far as the trial Court's judgment and decree did not provide for actual delivery of possession of suit schedule property item No. 1. The 1st defendant contended in the lower appellate Court that on the facts and circumstances of the case he was not liable for mesne profits in favour of the plaintiff.
6. The lower appellate Court formulated the following three questions for determination:
'(1) Are the appellants not liable for costs and mesne profits?
(2) Is it shown by the respondent-plaintiff that he is entitled to possession of suit schedule item No. 1 from the tenant ?
(3) Is it shown by the respondent-plaintiff that the framing of issues 1 and 2 in the manner as done has caused him prejudice and the burden has been wrongly placed upon him
While negativing the claim of the plaintiff for possession, the lower appellate Court also confirmed The judgment and decree of the trial Court holding that the appellant-defendant was liable to pay costs and mesne profits. Aggrieved by the same, this second appeal is preferred.
7. It is not disputed in this, Court that the plaintiff bad deposited Rs. 9,000/- in ft Miscellaneous Application No. 79/1969, and the some was not deposited in the original suit at the time of institution of suit. Even after the written statement was filed by he defendant-appellant agreeing to hand over actual possession of three item out of four and constructive possession of the other item on receipt of the mortgage amount, the plaintiff did not deposit the mortgage amount.
8. As is evidenced by the certified copy of the order passed on I A. II (for final decree) by the trial Court dated 2nd July, 1977 which is produced in this Court, it is only on 17-9-1974 a sum, of Rs. 9,000/- was deposited in O. S. No. 18/1970 and on 12-7-1977 the amount has been withdrawn by the 1st defendant. Between the date of deposit and date of withdrawal, the obstruction for withdrawl was offered by the plaintiff as she was still insisting that she was entitled to the actual possession of suit item No.1. in these circumstances, I am unable to see how Courts below were justified in ordering future mesne profits from date of suit till date of realisation when defendant 1 was willing to allow redemption and hand-over possession of those properties which in law he could. The plaintiff by her own conduct and the stand taken having deprived the 1st defendant of the benefit of his mortgage amount was certainly not entitled to claim mesne profits. She was ill-advised to do so. The 1st defendant had made it clear that he had been disabled by law which came to be passed subsequently by the Legislature from handing over possession of suit item No. 1. This plea ought to have been accepted by the Courts as sufficient reason for not granting future mesne profits. It is now well settled that the plaintiff is entitled to mesne profits when it is proved to the Court that defendant has continued in possession of immoveable property in contravention of the terms of agreement or in contravention of law. I do not see in the conduct of the defendant as evidenced by the written statement both in the original suit as well as in Miscellaneous proceeding that he was not (?) responsible for the delay in handing over possession of the properties. The Courts below have completely overlooked this aspect in awarding mesne profits and I feel, also costs.
9. Shri Krishnaswamy Rao has feebly attempted to persuade this Court to reject this appeal on the ground that this is a matter which should be gone into at the time of the drawing of the final decree and therefore the second appeal is not maintainable. I do not agree with him. Once the preliminary decree was passed ordering the costs and future mesne profits, overlooking the material facts which were before the Court, the judgment and decree of the trial Court though for preliminary decree had committed an error of law which can be rectified under S. 100 of the C. P. C.
10. For the reasons I have given, I allow this appeal and set aside that part of the judgments and decrees of the trial Court and the lower appellate Court which make 1st defendant responsible for costs and future mesne profits from date of suit tiff date of possession. In other respects, they are confirmed.
11. The parties are directed to bear their am costs throughout.
12. Appeal allowed.