P NARASAMMA Vs. K S GOVINDA MUDALIAR

JUDGEMENT

(1.) THIS is an application for fixing the future mesne profits at Rs.1,500 per month in respect of the half share of the applicant. In the suit a decree has been passed in favour of the applicant declaring her half share in the suit property. It is also decreed that she is entitled to mesne profits in respect of the suit property at the rate of Rs.300 per month for three years prior to the filing of the suit i.e., 21.11.1981. Thedecreealso declares that future mesne profits shall be decided in separate appropriate proceedings. Accordingly when this application was filed, an order was made by the Court directing ascertainment of mesne profits and a Commissioner was appointed therefor. Later the Commissioner was relieved of his responsibility and the Master was directed to take evidence and ascertain the mesne profits. The Master has passed an order on 24.10.1986 fixing the mesne profits at Rs.1,400 towards the share of the applicant. The Master has discussed the evidence adduced before him in detail for arriving at the said conclusion.

(2.) THE order of the Master is challenged by the respondent in the application. Several contentions have been put forward by learned counsel for the respondent. THE first contention is that the decree-holder has not given evidence in the enquiry though she was P.W.3 in the main suit. According to learned counsel when the decree-holder failed to give evidence herself, the evidence let in by her could not be accepted. I do not agree with this contention. It is a question of ascertaining the mesne profits. THE decree-holder may not personally be aware of the income that may be fetched in the locality for similar properties. But, that would not prevent the decree-holder from letting acceptable evidence regarding the quantum of mesne profits before court. Hence, the fact that the decree-holder has not examined herself is not a matter to be taken into account for negativing the claim made by the decree-holder.

(3.) THE next contention is that the evidence of P.W.1 which has been accepted by the Master, relates to the fair rent fixed in rent control proceedings with reference to a building. P.W.1 has produced a copy of the order of this Court. C.R.P.No.554of 1983 dated 16.2.1984. That arose out of proceedings for fixation of fair rent under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. In that proceeding, fair rent was fixed at Rs.373 for an extent of 360 sq.ft. ft is contended by learned counsel for the respondent that the fair rent for a building cannot be taken to be a relevant criterion for fixing mesne profits. According to him, the test applicable for ascertainment of mesne profits will be entirely different from the test application for fixing fair rent. Learned counsel submits that the provisions of the Act prescribe certain essential requisites for fixation of fair rent and they cannot apply to the fixation of mesne profits. I do no accept the contention of Learned counsel. Fair rent is rent which a building will fetch in a particular locality. THE Rent Control Act prescribes certain conditions in order to ascertain fair rent. On the basis of that, such will be the rent which the building can fetch if it is let out normally in open market. That will be certainly a relevant criterion for fixation of mesne profits. �Mesne Profits� has been defined in Sec.2(12), Code of Civil Procedure, as profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits but shall not include profits due to improvements made by the person in wrongful possession. It is well-known that very often the fair rent fixed under the Tamil Nadu Building (Lease and Rent Control) Act is less than the rent fetched in open market. Hence, mesne profits will be much more than the fair rent of a building fixed under the Tamil Nadu Buildings (Lease and Rent Control) Act. Hence, this contention of learned counsel cannot be accepted.