BALKISAN GAMBHIRSHET AGARWAL Vs. TUKARAM SHAHADU MALI

JUDGEMENT

(1.) These two are cross-appeals and arise out of a suit filed by the plaintiff for mesne profits in respect of survey No. 587 measuring 15 acres, 36 gunthas and assessed at Rs. 30-5-0 at Raver. The short facts leading to this suit are as below:

(2.) The plaintiff is the owner of the above land. It was governed by the Bombay, Tenancy and Agricultural Lands Act, 1948. The plaintiff served a notice terminating the tenancy of defendant No. 1, who was a tenant, under section 34 of the, said Act as from March 31, 1955. As defendant No. 1 did not surrender the land, he made an application to the Mamlatdar as required by section 29 of the, said Act. This application was dismissed by the Mamlatdar on Oct. 5, 1955. The plaintiff appealed to the Prant Officer who made an order in eviction in his favour on Feb. 29, 1956. Defendant No. 1 went in revision before the Revenue Tribunal and obtained stay of the execution of the order passed by the Prant; Officer. He furnished security for mesne profits for. two years before the Revenue Tribunal and the surety was defendant No. 2. The Tribunal on July 13, 1956, remanded the proceedings to the Prant Officer for decision. The Prant Officer after hearing the parties on Sept. 12, 1956, made an order in favour of the plaintiff. Defendant No. 1's revisional application to the Revenue Tribunal failed and his further application to this Court also failed. Ultimately, the plaintiff obtained possession in April 1957.

(3.) Thereafter the plaintiff instituted the present suit for mesne profits for the years 1955-56 and 1956-57 on Sept. 20, 1957. As to the mesne profits of 1955-56 he restricted the claim to Rs. 1,600 as he had not sufficient Court-fee to pay, but for 1956-57 he claimed the full amount of Rs. 2,000. Defendant No. 1 resisted the suit contending that he continued to be in possession till the plaintiff's tenancy appeal No. 286 of 1955 was finally decided as a tenant, and that the plaintiff was entitled only to the rent. He contended that for the year 1955-56 he was bound to pay only one-sixth share in the produce and regarding 1956-57, five times the assessment. The trial Court decreed the claim of the plaintiff fully, while in the District Court, it was modified. The District Court held that the net income of the land could only be Rs. 1,070 per year. The District Court awarded a sum of Rs. 2,140 for the two years in dispute. Dissatisfied with this order, the plaintiff has filed second appeal No. 669 of 1960 and the defendants have filed second appeal No. 762 of 1960.