BALAKRISHNAN Vs. MATHU

JUDGEMENT

(1.) Having been made liable for mesne profits under the terms of a preliminary decree the appellants who have been found to be liable to pay to the plaintiff Rs. 4000/- per annum from 28-7-1967 have filed this appeal challenging the award passed for the mesne profits at the rate of Rs. 4000/- per annum towards the share of the plaintiff. According to them it should be less. In fact the commissioner determined the mesne profits at the rate of Rs. 5000/- per annum. This was challenged on the ground that the Commissioner estimated mesne profits on the basis of the income of the trees as he saw them in the year 1974 and that some of the trees might not have been bearing during certain years and particularly during 1967 and 1968 and therefore it is said that the actual mesne profits must be lesser. The Commissioner met this in his report itself. He had indicated that there was no special means to determine the income for each one of the years accurately. The estimate for the year 1974 would more or less represent the income for the earlier years also i. e. though some of the trees might not have been bearing during earlier years trees which would have been bearing during 1964 and 1967 would have been bearing more during subsequent years. We are told that the income for the year 1974 should be taken to be the income of the previous years also. On the facts and circumstances of the case we see considerable force in this approach. The plaintiff, evidently to have a settlement of the controversy as far as possible, agreed to limit the claim of mesne profits at Rs. 4000/- per annum. Whether this object has been achieved is doubtful, for, this appeal has been pending in this court for five years now.