N.G. VIGNESHWARA BHAT Vs. KARITHYAYINI

JUDGEMENT

(1.) THE suit for recovery of possession on title with mesne profits was initially dismissed by the trial court. But then the decree was reversed in appeal and affirmed in first appeal against appeal. The plaintiff/decree holder has been found entitled to mesne profits under the decree which has become final. The suit was instituted as in forma pauperis on 24 -10 -1980. The property was delivered over to the legal heirs of the decree holder in execution on 17 -11 -2007. It is beyond cavil that the legal heirs are entitled to mesne profits from 24 -10 -1980 to 17 -11 -2011. An Advocate Commissioner had been deputed in the suit who filed Ext. A1 report dated 28 -5 -1988. The decree scheduled property includes 92 cents of areca nut garden which alone is income yielding. The report of the Commissioner indicates the probable income as well as actual income from the decree scheduled property. The execution court has fixed the mesne profits on the basis of the probable income as opined by the Advocate Commissioner.

(2.) IT is true that the quantification of mesne profits has been relegated to the execution stage under the decree. A reference to the definition of 'mesne profits' under Section 2(12) of the Code of Civil Procedure is apposite.

(3.) THE number of areca nut trees as on the date of suit agreement would be a very relevant factor. The income generated from those trees with ordinary diligence alone can be reckoned for mesne profits. Trees subsequently grown in the property are only improvements made by the defendants in wrongful possession. The income from those trees grown/ planted subsequent to the date of agreement cannot be reckoned at all. The income can be assessed only after defraying the expenses for agriculture.