SUBRAMONIA IYER Vs. VENKITACHALAM IYER

JUDGEMENT

(1.) THIS is an appeal by the second plaintiff in O. S. No. 110 of 1119 in the court of the erstwhile Second Judge, Alleppey from an order under S.144 CPC. The suit was for recovery of 47 acres of paddy land with mesne profits from defendants Nos. 6 and 7, on deposit of Rs. 10,800/-. The suit was dismissed with costs. But in A. S. No. 336 of 1124 (T), it was decreed with costs by the Travancore-Cochin High Court. Pursuant to the decree of the High Court, the second plaintiff recovered possession of the property on 3-4-1954. Defendants Nos. 6 and 7 filed C, A. No. 744 of 1957 in the Supreme Court against the decree of the High Court. The appeal was allowed by the Supreme Court with costs, by its judgment dated 30-3-1961. Thereupon an application under S.144 CPC. was filed by defendants Nos. 6 and 7 on 12-6- 1961 for restoration of the property with mesne profits. Though the application was resisted by the second plaintiff on several grounds, the property was delivered back to the 6th and 7th defendants through court in November 1961; and thereafter only the question relating to the mesne profits remained to be determined.

(2.) THE claim for mesne profits relates to the period from April 1954 to November 1961. THE property concerned in this case formed part of a larger block of paddy land, having an extent of 257 acres. THEre was a suit for partition of the whole land, as O. S. No. 102 of 1116, in which the parties to this appeal were also parties. THE appellant herein was appointed receiver in that suit; and during all the relevant period, he was in management of the property. Regarding the claim of the respondents for mesne profits, the appellant contended that it had been fixed in the suit at 2090 parahs of paddy, and that the respondents were not entitled to get anything more than that rate. Secondly, it was contended that the appellant, as receiver, had accounted to the Court in O. S. No. 102 of 1116 for the income of the property, and that the respondents' right was only to get in that suit their share of the income from the property. Thirdly, it was contended that the whole property was leased out from year to year through Court in O. S. No. 102 of 1116 for cultivation, that the appellant had not been able to collect from the lessees the whole income, and that he was not liable for what he has not collected. THE appellant did not let in any evidence in support of his contentions. THE first respondent was partly examined, when it was agreed by the parties that the case can be disposed of by both parties filing statements with regard to the amounts payable as mesne profits, and after hearing their counsel. Accordingly, both parties filed statements; and the case was disposed, of by the lower court after hearing the counsel.

(3.) THESE are all matters of evidence. The appellant did not adduce any evidence in the lower court. If the lessee had deposited any amount in O. S. No. 102 of 1116, the appellant was the only person entitled to receive the same under the decree, as it then stood before it was reversed in the Supreme Court. One does not know whether he has not withdrawn from the court his share of the income in respect of this property. If he has not done it, he may do so even now; but that is no answer to the respondents' claim against him for mesne profits. Again, he cannot absolve himself from the liability by simply saying that he has not realised the whole amount, and that he has filed a suit. He has to establish that he acted in the ordinary course of business in giving the lease, that he took all reasonable steps in recovering the whole rent, and that, in spite of such efforts, he could not recover the same. Without these factual basis, his contention cannot be sustained. We also find from a perusal of the statement which he filed in the lower court that the difference between what he has been found liable to pay and what, according to his contention, he would have been liable, is only a small amount; and there is no justification to remand this case for a further enquiry on these questions of fact.