KARBALAI BEGUM Vs. MOHAMMAD SAYEED

JUDGEMENT

(1.) -These petitions for review have been filed by Mst. Karbalai Begum who was appellant in Civil No. 1204 of 1978 decided by this court on 7/10/1980['karbatai Begun v. Mom. Suyud, (1980) 4 SCC 396]. We have heard counsel for the parties and the short point raised by counsel for the applicant is that although the suit for joint possession filed by Karbalai Begum was decreed by this court after setting aside the judgment of the High court yet when she applied for execution of the decree, possession was not given to her. According" to the findings of fact, it appears that according to our decision, the suit of the plaintiff-applicant was decreed for joint possession in chakbandi plots Nos. 201 and 274 in Village Zainabad, Tahsil Nawabganj, district Barabanki (U. P. ).

(2.) According to the admitted genealogy, Karbalai Begum was the widow of Syed Lack Husain who was the son of Khadim Husain and the respondents are the soni of the brothers of Khadim Husain. It is, therefore, clear that Karbalai Begum would, according to Mahomedan law, get one-fourth share in the two plots.

(3.) Mr. Anwar Ahmed appearing for the respondents submitted that he wouto have no objection if partition in respect of the two plots is done by metes and bounds by the Tahsildar as the lands have already been the subject-matter of the chakbandi. The applicant also prayed that due to an obvious omission which amounts to an error on the face of the record, while granting relief for possession, this court omitted to give the consequential relief of mesne profits when in fact a sum of Rs. 15,000. 00 had been deposited in the High court to be paid to the plaintiff on account of payment of mesne profits. The quantum of inesne profits, however, is disputed by the respondents and it is not possible for us to decide this controversy in the petition for review. There can, however, be no doubt that since the plaintiff, Karbalai Begum had succeeded fully and got a decree for joint possession, she will be entitled to mesne profits from the date of the decree as also up to the date when possession is delivered to her. We, therefore, review our judgment and decree passed on 7/10/1980 to the extent that we direct that the plaintiff shall also be entitled to mesne profits as indicated above. We further direct that the case may be sent to the Tahsildar, Barabanki who will deliver possession of one-fourth share to Karbalai Begum which, according to her, comes to ll'l'8 1/2bighas. The Tahsildar will determine the mesne profits on the basis of the net yield of the land during a year after taking such evidence as is offered by the parties. The amount of meine profits will be paid out of the balance of Rs. 15,000. 00 deposited before the High court after deducting the cost taxed by this court in Civil No. 1204 of 1978 as also the cost of these applications. The balance of the amount, if any, would be set off against the mesne profits ascertained and if there is any excess that will have to be recovered from the defendants. In case, however, the amount of cost taxed by this court and the amount of mesne profits ascertained according to the Order passed by us, fall below the amount of Rs. 15,000. 00 then only the balance will be refunded to the defendant. In case the amount of Rs. 15,000. 00 falls short of the required amount, i. e. , the cost taxed by this court plus the mesne profits, the Tahsildar, Barabanki will refer the matter to the trial court for passing a further decree of the amount thus fallen short.