1. The 1st defendant is the appellant. The suit out of which the appeal arises was instituted in 1928 for recovery of possession of A and C schedule properties and 1/24th of B schedule properties. The suit was dismissed by the Trial Court, and on appeal in Appeal No. 353 of 1933 a decree was passed in favour of the 2nd plaintiff. The preliminary decree provided that the 2nd plaintiff was entitled to the suit properties as prayed for by him. As regards mesne profits the High Court directed that the Lower Court should make an enquiry as to the mesne profits from the date of the institution of the suit and pass a final decree for payment of the amount that may be found due up to the date of delivery of possession to the 2nd plaintiff.
The 2nd plaintiff filed E. P. No. 29 of 1940 for delivery of possession and delivery of possession of A and B schedule properties was effected in February 1943. C. M. A, No. 104 of 1943 was filed by the appellant herein as against that order. So far as B schedule property was concerned, delivery was ordered on 15-1-1948. The 2nd plaintiff filed I. A. No. 429 of 1940 for the appointment of a commissioner for determining the mesne profits. The application having been struck off for statistical purposes, I. A. No. 558 of 1945 was filed by the 2nd plaintiff to restore I. A. No. 429 of 1940 and to proceed with the application to its further stages.
A commissioner was appointed by the Lower Court to inquire into the mesne profits. In paragraph 4 of the Commissioner's report, it is stated that the defendants contended that the 2nd plaintiff could be granted a decree for mesne profits only up to March 1943 on those lands which he obtained delivery of while the 2nd plaintiff claimed future mesne profits up to January 1947. In paragraph 6, he stated as follows:
'Now the question for determination is as to what amount the plaintiff will be entitled towards mesne profits from' 22-9-1926 till the date of delivery of the lands and other properties mentioned in the A, B and C schedule of the plaint.'
The Commissioner found that a sum of Rs. 9048-5-8 was payable to the plaintiff. Objections were filed as against the Commissioner's report only in regard to the quantum. When the question cameup before the Subordinate Judge of Eluru, it was contended on behalf of the appellant that inasmuch as there had been delivery of possession in 1943 itself, the petitioner would not be entitled to any mesne profits subsequent to that date. In paragraph6 of the judgment, the learned Subordinate Judge summed up the position in the following terms:
'So far as the A and C schedule properties areconcerned, there is no dispute about the mesne profits in regard to their having to be ascertained for a period of 17 years, i. e., from 1926 to 1943 February and for the mesne profits in regard to the B schedule properties being ascertained till 1946. The contest is only in regard to the quantum and not to the periods mentioned above.'
As against the judgment of the Subordinate Judge, Appeal No. 736 of 1952 has been tiled before thisCourt. In the original grounds of appeal, no objection was taken as to the period for which mesne profits had to be paid. Before the appeal was taken up, the appellant sought to raise an additional ground of appeal viz., that the Subordinate Judgewas not entitled to grant mesne profits for more than 3 years from the date of the High Court's decree. This question was not raised in the counter affidavit in I. A. 558 of 1945 on the file of the Subordinate Judge. Elur or before the Commissioneror before the Subordinate Judge.
On the other hand, it was conceded before theCommissioner as also the Subordinate Judge that accounts can be taken up to 1943 in respect of A and C schedule properties and up to 1946 in respect of B schedule properties. It is for the first time that this objection based on provisions of Order XX Rule 12 C. P. C. is raised before this Court. If the objection had been raised in the counter or before the Commissioner, it would have been open to the 2nd plaintiff to file a suit for recovery of the mesne profits beyond the 3 years up to the date of delivery of possession. As the appellant raised no dispute and elected to have the profits determined by the Subordinate Judge up to the date of delivery of possession, we are not inclined to permit, the appellant to raise this new ground of appeal.
2. Even assuming that the appellant is entitled to raise this ground of appeal and contend that the mesne profits could be awarded only up to the expiration of 3 years from the date of the High Court's decree, we are inclined to take the view that having regard to the specific terms of the preliminary decree as also the fact that he had consented to the determination of the profits up to the date of delivery of possession, the determination of the profits up to the date of delivery of possession is perfectly justified.
Order XX Rule 12 C. P. C. provides that an inquiry as to rent or mesne profits may be directed from the institution of the suit until (i) the delivery of possession to the decree-holder, (ii) the relinquishment of possession by the judgment--debtor with notice to the decree-holder through the court, or (iii) the expiration of three years from the date of decree, whichever event first occurs. So under the provisions of Order XX Rule 12, C. P. C., the decree-holder is not entitled to recover mesne profits beyond three years from the date of the decree.
3. Dealing with Section 211 of the earlier Code, the Privy Council held in Grish Chander Lahiri v Shashi Shikhareswar Roy, ILR 27 Cal 951 at p. 969 (PC) as follows:
'The Subordinate Judge gives the plaintiffmesne profits up to the date of possession. Butthat is more than three years from the date of thedecree and to the extent of the excess is unauthorised by Section 211 of the Code.'
The same view was taken in Trailokya Nath Roy Jogendra Nath Roy, ILR 35 Cal 1017. The decisions of the Bombay High Court in Uttamaram v. Kishordas, ILR 24 Bom 149 and Narayan Govind v. Sono Sadashiv, ILR 24 Bom 345 were followed, We agree with the construction placed by Maclean C. J. on the terms of Section 211 of the earlier Code which corresponds to Order XX Rule 12 of the present Code. The observations of the learned Chief Justice at page 1019 are as follows:
'The language of the section appears to me to be clear. It says, 'until the delivery of possession to the party, in whose favour the decree is made, or until the expiration of three years, from the date of the decree, whichever event first occurs'. Now, which event did first occur? The event, which first occurred, was the expiration of three years from the date of the decree, the 25th July 1898. We must give effect to the clear language of the legislature.'
The main question that arises is whether, having regard to the terms of Clause 6 of the preliminary decree, it is open to the appellant to con-tend that mesne profits ought not to be determined up to the date of delivery of possession to the 2nd plaintiff. The decree passed by the High Court isquite clear in terms. It is not in accordance with e terms of Order XX Rule 12 C. P. C. Future mesne profits have not been directed to be determined in general terms.
The decree expressly states that a final decree should be passed for payment of the amount that may be found due up to the date of delivery of possession to the 2nd plaintiff. There is no ambiguity in the construction of the decree, As pointed out by Lord Hobhouse in Maharaja of Bharatpur v. Rani Kanno Dei, ILR 23 All 181 it is not possible for us to place a construction on the decree 'which would make it in accordance with law, rather than to the opposite one.' As we are clear that the decree specifically provides that mesne profits should be determined up to the date of delivery of possession, there is no room for reading the terms of Order XX Rule 12 (c) into the decree and, restrict the mesne profits only up to three years from the date of the decree.
If really the appellant felt aggrieved by the preliminary decree, his remedy was to have preferred an appeal and challenged the correctness of the decree. The preliminary decree has now become final, and it is not open to us to go behind that decree and hold that mesne profits are payable only for a period of 3 years from the date of the decree of the High Court.
In this connection, we may refer to the recent decision of this Court in Narayana v. Tirupathi Devasthanams, : AIR1959AP64 . The question that arose before the learned Judges was whether they could interfere in an appeal as against the final decree with a preliminary decree granting mesne profits for more than 3 years prior to the institution of the suit. The relevant observations are at page 33 and are as follows:
'It may be mentioned that the defendant did not raise any point before the learned Judges that the Subordinate Judge was wrong in awarding mesne profits from the year 1933. The directions given in the decree in respect of mesne profits was confirmed by the High Court. In the circumstances, it is not open in a mesne profits enquiry to go behind preliminary decree which was confirmed by the High Court. But as the decrees have become final, the parties are bound by it.'
The preliminary decree passed by the Subordinate judge may be erroneous, but it cannot be held that it was without jurisdiction. Vide Gora Chand Haldar v. Pratulla Kumar Roy, ILR 53 Cal 166: (AIR 1925 Cal 907) (FB).
4. A single Judge of the Travancore-Cochin High Court held in Krishna Krishnan v. Kandan Velu, AIR 1955 Trav Co. 233, that Order XX Rule 12 C. P. C. merely enables the Court acting under that provision of law to pass decrees for future mesne profits for three years but docs not prohibit them when acting under other provisions like Order XXIII Rule 3 C. P. C. from decreeing future mesne profits for more than three years. We accept that view and hold that as the appellant consented to the determination of future mesne profits for more than three years he is precluded from relying on Order XX, Rule 12, C. P. C.
5. Sri K. Ramachandra Rao, the learned Advocate for the appellant, strongly relied on the decision reported in Godavarli Raja v. Ramachandra-swami, AIR 1943 Mad 354. The learned Judges held that if the preliminary decree provided for mesne profits till delivery of possession, it should be read as one subject to the statutory limit of three years. With great respect, we are inclined to take a different view and follow the recent decision of this Court in : AIR1959AP64 referred to above.
6. Even assuming that the decision in AIR 1943 Mad 354 is correct, we are inclined to take the view that it has no application to the facts of this case inasmuch as the appellant, herein raised no objection to the determination of the mesne profits up to the date of delivery of possession. We therefore overrule the first contention raised by Sri K. Ramachandra Rao.
7. The next question that was raised by Sri K. Ramachandra Rao was that interest in respect of mesne profits ought not to be awarded for more than three years as provided under Order XX Rule 12 C. P. C. We are inclined to take the view that there is no substance in this contention. The definition of mesne profits in Seclion 2(12) C. P. C. provides for interest on such profits. In ILR 27 Cal 951 (PC), it was held by Lord Hobhonse at page 963 that interest may be awarded on the profits which were actually received or might with ordinary diligence have been received therefrom. At page 969, the learned Law Lord pointed out that under the terms of Section 211 of the earlier Code, mesne profits could not he awarded for more than three years from the date of the decree. It was not held that interest was payable only up to three years from the date of the decree and could not be awarded up to the date of payment. The head-note, which is in the following terms,
'that the expression 'mesne profits' included, under Section 211, interest on them but this could only be allowed for not more than three years from the decree, or until possession within that time.'
does not correctly represent what is decided in that case. Reliance was next placed on the passage in Mulla's Code of Civil Procedure (12th edition), Volume II at page 734. which is Rs follows:
'Calculating in this manner, the interest on the profits must be allowed up to the date of ascertainment of the aggregate amount of mesne profits; but in no case should it be allowed for a period longer than three years from the date of the decree.'
The decision relied on by the learned author is the decision in, ILR 27 Cal 951 (PC). We are inclined to take the view that the passage is based on theerror in the head-note and not on the decision itself. Similarly the judgment in Naina Pillai Maracayar v. Arumuga Mudaly, 2 Mad LW 1129: (AIR 1916 Mad 895) proceeds on the basis of the wrong head-note.
8. We are clearly of opinion that interest ispayable till the date of realisation or payment andneed not be restricted only for threq years from thedate of the decree.
9. Sri K. Ramachandra Rao further contended that the defendants are liable to pay only in respect of portions of properly which they are in possession of. There is no substance in this contention as the preliminary decree clearly provides that all the defendants in possession of the properties arc liable to pay the mesne profits. It is not open to us the final decree proceedings to apportion the liability as between the several defendants.
10. We will now deal with the quantum of mesne profits. Items 13 to 17 of A schedule comprise of a house and houses sites in Thanuku, which is the head-quarters of taluk. The Commissioner awarded Rs. 2/- per month for the house. The Subordinate Judge fixed the mesne profits of those items at Rs. 41-12-0 per year. The evidence discloses that the house was being occupied by R. Ws. 3 and 4. R. W. 3 was an Ayurvedic doctor, and R. W. 4 was a sweet-meat vendor. The police constable examined as P. W. 1 stated that he was paying for a portion of the house Rs. 3/- per month.
The Commissioner was not inclined to accept his evidence as the highest rent that be paid was about Rs. 2-8-0. The receipt Exhibit P-1 produced by him was not accepted. We are inclined to think that a rent of Rs. 6/- per month might be fixed in regard to these items. Calculating at the rate of Rs. 6/- per month, the rent would amount to Rs. 72/- per year. The tax payable is Rs. 6-4-9. Deducting that sum, we fix the net income for these items at Rs. 65-12-0 per year. We vary the decree of the Subordinate Judge accordingly.
11. Items 1, 4 and 8 are dry lands in Tanuku. The Commissioner did not award any mesne pro-fits in regard to items 1 and 4 up to 1943. He granted in respect of item 8 Rs. 30/- on the basis of Exhibits P-10 and P-11. The Subordinate Judge came to the conclusion that the Commissioner was wrong in not awarding mesne profits which should have been awarded at the rate awarded for item 8. The learned Subordinate Judge increased the rent from Rs. 30 to Rs. 35 without giving any reasons. We are inclined to hold that in respect of all these three items, the rate ought to have been fixed at Rs. 30 per year up to 1940. After 1940, there was an increase in prices. We are inclined to hold that for all these three items the rate might be fixed at Rs. 60/- per year for the period 1941 to 1943.
12. With regard to the mango garden in item 9, the evidence is that there are 40 mango trees. The Commissioner was wrong in awarding mesne profits on the basis of the rate applicable to dry lands. The learned Subordinate Judge has fixed the profits at Rs. 50/- per year. We are inclined to think that it is too low. We enhance the amount to Rs. 100/- per year up to 1940 and to Rs. 150/-for the years 1941 to 1943.
13. So far as items 10 and 11 are concerned, there is no convincing evidence that there are babul trees on the land. We confirm the finding of the Subordinate Judge in paragraph 17 in regard to this matter. But, so far as the profits from items 10 and 11 are concerned, the learned Judge fixed it at Rs. 10 for the items. He confirmed the filling of the Commissioner in this behalf. The Commissionergives no reasons as to how he fixed the profits at Rs. 10/- for the items. It is stated that the tax paid on the land is Rs. 5/-. We are inclined to think that it would be proper to fix Rs. 20/- for the items up to 1940 and Rs. 30/- for 1941 to 1943. The tax of Re. 1/- deducted by the Subordinate Judge is confirmed. The net figure would be Rs. 19/- up to 1940 and Rs. 29/- from 1941 to 1943.
14. With regard to Item 12, the Commissioner fixed the profits at Rs. 20- per year per acre as in the case of other dry lands. The learned Subordinate Judge slated in paragraph 18 that garden crops could be grown on the surrounding lands. The estimate of the Subordinate Judge is, in our opinion, low. We therefore enhance the amount by fixing Rs. 50/- per acre up to 1940 and Rs. 75/- per acre for the years 1941 to 1943. The tax of Rs. 6-8-0 deducted by the learned Judge from the aggregate amount is confirmed.
15. As regards items 18 to 20, we confirm the judgment of the Subordinate Judge that the rate of Rs. 30/- per acre will stand up to end of 1940. But, so far as the years 1941 to 1943 are concerned, we think it would be reasonable to fix the rate at Rs. 60/- per acre.
16. As regards the B schedule properties, there is no convincing evidence that the Subordinate Judge acted wrongly in fixing Rs. 30/- per year for the entire extent. We confirm the finding of the Subordinate Judge at the rate of Rs. 30/- per year up to 1940. For the years 1941 to 1943, we fix it at Rs. 45/- per year. From these amounts, the tax of Rs. 2/- as per Exhibit D-9(a) will be deducted for the whole area.
17. In regard to C schedule items 1 to 4, we accept Exhibits P-14 and P-15 and hold that the rate of Rs. 50/- per acre would be the proper rate up to the end of 1940. For the years 1941 to 1943, we fix at Rs. 60/- per acre. A sum of Rs. 15/- will foe deducted for tax on the whole area.
18. As regards wet lands, items 2, 3, 5, 6 and 7 of A schedule we are inclined to agree with the Subordinate Judge that the makta of 11 bags per acre for items 2, 3, and 5 & makta of 8 bags for items 6 and 7 is reasonable. As regards the rate of Rs. 7-12-0 per bag adopted by the learned Judge, we confirm the finding taking into account the depression period. However, for the years 1941 to 1943. we fix the rate per bag at Rs. 10/- as the prices had increased after 1940. The tax of Rs. 11/- per acre will be deducted as stated by the Subordinate Judge in paragraphs 22 and 23.
19. The 24th Respondent is the legal representative of the 8th Defendant. The 8th, Defendant was impleaded in the suit as a co-sharer in possession of the property. No relief was sought against him. The preliminary decree also did not grant any relief against him. The Court below was, therefore, wrong in making him liable for mesne profits and costs.
20. The decree of the Court below is modified in the manner indicated above. As the appeal is substantially dismissed, the 1st respondent is entitled to his costs in the appeal. In the memorandum of cross-objections, he will be entitled to proportionate costs. There will be no order as to costs in regard to the 24th respondent.
21. This Appeal having been set down on Friday 1-8-1958 for being mentioned on the letter dated 24-7-1958 of Mr. C. V. Narasimha Rao, Advocate for the 1st Respondent, the Court made the following Order:--
22. In regard to B Schedule property, the Subordinate Judge awarded mesne profits up to 1946. By mistake it was mentioned in the judgment that the profits were payable up to 1943. The mistake will be corrected by substituting the years 1941 to 1946 for the years 1941 to 1943.
23. This Appeal having again been set down this day for being mentioned, the court made the following Order:--
The taxes paid in respect of items 1, 4, 8 and 9 have to bo deducted as was done in the Court below.