BHARAT REGINORIES LTD. Vs. YAMUNA BAI

JUDGEMENT

(1.) THESE two appeals arise out of a common judgment out of final decree proceedings in O.S. No. 55/65 passed by the IV Additional Judge, City Civil Court, Hyderabad, in his Judgment dated 14 -8 -1975. We shall take up CCCA. 119/76 first. The 4th defendant -4th respondent is the appellant in the appeal. A preliminary decree was passed for possession and profits with a direction to enquire into the profits against defendants 1 to 5 on 25 -10 -68. The present application is filed by the assignee decree holders for ascertainment of profits. In this appeal it is urged by the learned counsel for the appellant that the appellant is only a tenant and he paid the rent for the relevant period to the judgment - debtor the 5th respondent, and the basis of the profits in this suit is also rent realised by the 5th respondent and hence he cannot be made liable jointly and severally under the decree and the decree so far he is concerned passed against him for Rs. 53,475/ - must be vacated. It must be stated that he has not questioned the quantum of profits awarded. The learned counsel for the appellant in support of his contention relied upon a judgment of this court reported in Roman Catholic M.D.T. Co. op. Society vs. Kotayya : AIR 1955 Andhra 36.

(2.) IT is necessary to say few more facts in order to examine this question. The suit was laid on 4 -5 -1948 -The present appellant was added as a party in I.A. No. 320/65 as per the order of the court dated 29 -9 -1965, but he did not contest the suit and remained exparte. He was added as a party -defendants as he obtained a lease from the contesting defendants pending the suit. The lease in favour of this defendant was granted on 9 -1 -1964 for an extent of Acs. 15.30 guntas. Subsequently another lease deed was entered into with the 5th defendant on 23 -11 -1965 for Acs. 3.32 guntas surrendering Acs. 12 -07 guntas. The decree in this case was passed as already stated on 25 -10 -1963, It is not in dispute that after the decree was passed he did not pay the amount to the 5th respondent but deposited the same into the court and he also delivered possession of Acs. 3 -22 guntas without the necessity of execution on 23 -10 -1974. The judgment in question also directed payment of profits at the rates realised by the 5th respondent under the lease deeds executed by this appellant on 9 -1 -64 and 23 -11 -65, and thus the basis of the profits is only rental fixed in these deeds. It is also not in dispute that this appellants is not in arrears prior to the decree and the amount was paid to the 5th respondent. Under these circumstances the learned counsel urges that it is unjust to keep the decree to pay the profits with joint and several responsibility and he must be exonerated from paying the profits without the necessity of filing separate suit and recovering the amounts from the 5th respondent.

(3.) FURTHER in deciding the liability of mesne profits for wrongfull possession by joint act of several persons the Supreme Court in Lucy Kochuvareed vs. P. Mariappa Gounder : A.I.R. 1979 S.C. 1214 observed.