VENUGOPALA Vs. VASANTHA

JUDGEMENT

(1.) THIS second appeal is by the defendants in O. S. 45 /1992 who suffered a decree in that suit which was filed by the plaintiff praying for compensation though termed as mesne profit for being in enjoyment of the suit schedule property. The trial Court had decreed the suit for a sum of Rs. 29,800/- for the year 1990, 1991, and 1992 ending with March with future interest thereon @ 10% per annum. Aggrieved the defendants had filed regular appeal R. A. 22/1995 before the I Addl. District Judge, D. K. Mangalore but without success. Thereafter the present second appeal is filed under S. 100 C. P. C.

(2.) THE defendants in the suit who are appellants before this court had suffered a decree for yielding possession of the suit properties in O. S. 236/1978 on the file of the Principal Munsiff, Puttur for possession of suit 'a' schedule property. Though the suit was dismissed by the trial court it was decreed in appeal preferred by the defendant in the present suit to the lower Appellate Court and the second appeal preferred by the defendant in that suit in R. S. A. 893/1990 before this court was also dismissed on 22-3-1991 confirming the decree passed by the lower Appellate Court. It is thereafter the decree holder had brought the present suit claiming compensation against the judgment-debtor for the use and occupation of the premises which continues to be in the possession of the judgment-debtor notwithstanding the decree that he has suffered. The trial court having quantified the compensation termed as mesne profit for the sum mentioned above, on appreciation of evidence led in by the parties, the defendant had preferred an appeal which was also dismissed against which the defendant has now preferred this second appeal.

(3.) I have heard Ms. Vidya Iyer, learned counsel for the appellants at considerable length. She has put-forth several contentions. Firstly learned counsel has contended that the defendant appellant had effected vast improvements in the property, that they had raised areca plants and the trial Court had not at all taken into consideration the vast improvements that they had effected in quantifying the amount of mesne profit or the compensation in favour of the plaintiff. Learned counsel submits that the very definition of the word "mesne profit" under S. 2 (12) C. P. C. indicates that a person who had effected improvements can claim necessary deductions in the amount of compensation that he has to pay to the rightful owner of the property. The Courts below having not taken into consideration and having misunderstood the word "mesne profit", the judgment and decree passed by the courts below are not sustainable and it should be interfered by this Court. Learned counsel has placed reliance on the decision of the Division Bench of this Court reported in 1988 (1) KLJ 195 particularly para 17.