SHANKAR Vs. BHAURAO

JUDGEMENT

(1.) Heard learned Counsel for the parties. With the consent of both the parties, second appeal is taken up for final hearing.

(2.) Learned Counsel appearing for the appellants submits that, Direction No.3 i.e. "Enquiry of mesne profit shall be carried separately under Order 20 Rule 12 of Civil Procedure Code" passed by the trial Court, is in absence of any pleadings or prayers in the suit and no such direction can be given in absence of pleadings or prayers to that effect in the suit. In support of his contention, learned Counsel for the appellants placed reliance upon the judgment of the Supreme Court in the case of Ganapati Madhav Sawant (dead) through his L.Rs. vs. Dattur Madhav Sawant, 2008 3 SCC 183and submitted that, the point raised herein is no more res integra and is covered by the above said pronouncement.

(3.) Learned Counsel appearing for the respondent submits that, if the appellants are aggrieved by the sale transaction between the plaintiff and Damaji, in that case if it is permissible, the appellants can challenge the said transaction but in the suit filed by the plaintiff, the contention of the appellants i.e. original defendants that the plaintiff was not entitled to purchase the said land, is rightly rejected by the trial Court. Learned Counsel further submits that, the relief of mesne profits is ancillary relief and the main relief which was prayed in the suit about the removal of encroachment and possession of encroached portion. Therefore, second appeal does not raise any substantial question of law for consideration.