CHITTORUI SUBBANNA Vs. KUDAPA SUBBANNA

JUDGEMENT

(1.) The 1st defendant is the appellant. The suit out of which the appeal arises was instituted in 1928 for recovery of possession of A and C schedule properties and 1/24th of B schedule properties. The suit was dismissed by the Trial Court, and on appeal in Appeal No. 353 of 1933 a decree was passed in favour of the 2nd plaintiff. The preliminary decree provided that the 2nd plaintiff was entitled to the suit properties as prayed for by him. As regards mesne profits the High Court directed that the Lower Court should make an enquiry as to the mesne profits from the date of the institution of the suit and pass a final decree for payment of the amount that may be found due up to the date of delivery of possession to the 2nd plaintiff. The 2nd plaintiff filed E. P. No. 29 of 1940 for delivery of possession and delivery of possession of A and B schedule properties was effected in February 1943. C. M. A, No. 104 of 1943 was filed by the appellant herein as against that order. So far as B schedule property was concerned, delivery was ordered on 15-1-1948. The 2nd plaintiff filed I. A. No. 429 of 1940 for the appointment of a commissioner for determining the mesne profits. The application having been struck off for statistical purposes, I. A. No. 558 of 1945 was filed by the 2nd plaintiff to restore I. A. No. 429 of 1940 and to proceed with the application to its further stages. A commissioner was appointed by the Lower Court to inquire into the mesne profits. In paragraph 4 of the Commissioners report, it is stated that the defendants contended that the 2nd plaintiff could be granted a decree for mesne profits only up to March 1943 on those lands which he obtained delivery of while the 2nd plaintiff claimed future mesne profits up to January 1947. In paragraph 6, he stated as follows: "Now the question for determination is as to what amount the plaintiff will be entitled towards mesne profits from 22-9-1926 till the date of delivery of the lands and other properties mentioned in the A, B and C schedule of the plaint." The Commissioner found that a sum of Rs. 9048-5-8 was payable to the plaintiff. Objections were filed as against the Commissioners report only in regard to the quantum. When the question came up before the Subordinate Judge of Eluru, it was contended on behalf of the appellant that inasmuch as there had been delivery of possession in 1943 itself, the petitioner would not be entitled to any mesne profits subsequent to that date. In paragraph 6 of the judgment, the learned Subordinate Judge summed up the position in the following terms: "So far as the A and C schedule properties are concerned, there is no dispute about the mesne profits in regard to their having to be ascertained for a period of 17 years, i. e., from 1926 to 1943 February and for the mesne profits in regard to the B schedule properties being ascertained till 1946. The contest is only in regard to the quantum and not to the periods mentioned above." As against the judgment of the Subordinate Judge, Appeal No. 736 of 1952 has been tiled before this Court. In the original grounds of appeal, no objection was taken as to the period for which mesne profits had to be paid. Before the appeal was taken up, the appellant sought to raise an additional ground of appeal viz., that the Subordinate Judge was not entitled to grant mesne profits for more than 3 years from the date of the High Courts decree. This question was not raised in the counter affidavit in I. A. 558 of 1945 on the file of the Subordinate Judge. Elur or before the Commissioner or before the Subordinate Judge. On the other hand, it was conceded before the Commissioner as also the Subordinate Judge that accounts can be taken up to 1943 in respect of A and C schedule properties and up to 1946 in respect of B schedule properties. It is for the first time that this objection based on provisions of Order XX Rule 12 C. P. C. is raised before this Court. If the objection had been raised in the counter or before the Commissioner, it would have been open to the 2nd plaintiff to file a suit for recovery of the mesne profits beyond the 3 years up to the date of delivery of possession. As the appellant raised no dispute and elected to have the profits determined by the Subordinate Judge up to the date of delivery of possession, we are not inclined to permit, the appellant to raise this new ground of appeal.

(2.) Even assuming that the appellant is entitled to raise this ground of appeal and contend that the mesne profits could be awarded only up to the expiration of 3 years from the date of the High Courts decree, we are inclined to take the view that having regard to the specific terms of the preliminary decree as also the fact that he had consented to the determination of the profits up to the date of delivery of possession, the determination of the profits up to the date of delivery of possession is perfectly justified. Order XX Rule 12 C. P. C. provides that an inquiry as to rent or mesne profits may be directed from the institution of the suit until (i) the delivery of possession to the decree-holder, (ii) the relinquishment of possession by the judgment--debtor with notice to the decree-holder through the court, or (iii) the expiration of three years from the date of decree, whichever event first occurs. So under the provisions of Order XX Rule 12, C. P. C., the decree-holder is not entitled to recover mesne profits beyond three years from the date of the decree.

(3.) Dealing with Section 211 of the earlier Code, the Privy Council held in Grish Chander Lahiri v Shashi Shikhareswar Roy, ILR 27 Cal 951 at p. 969 (PC) as follows: "The Subordinate Judge gives the plaintiff mesne profits up to the date of possession. But that is more than three years from the date of the decree and to the extent of the excess is unauthorised by Section 211 of the Code." The same view was taken in Trailokya Nath Roy Jogendra Nath Roy, ILR 35 Cal 1017. The decisions of the Bombay High Court in Uttamaram v. Kishordas, ILR 24 Bom 149 and Narayan Govind v. Sono Sadashiv, ILR 24 Bom 345 were followed, We agree with the construction placed by Maclean C. J. on the terms of Section 211 of the earlier Code which corresponds to Order XX Rule 12 of the present Code. The observations of the learned Chief Justice at page 1019 are as follows: "The language of the section appears to me to be clear. It says, until the delivery of possession to the party, in whose favour the decree is made, or until the expiration of three years, from the date of the decree, whichever event first occurs. Now, which event did first occur? The event, which first occurred, was the expiration of three years from the date of the decree, the 25th July 1898. We must give effect to the clear language of the legislature." The main question that arises is whether, having regard to the terms of Clause 6 of the preliminary decree, it is open to the appellant to con-tend that mesne profits ought not to be determined up to the date of delivery of possession to the 2nd plaintiff. The decree passed by the High Court is quite clear in terms. It is not in accordance with e terms of Order XX Rule 12 C. P. C. Future mesne profits have not been directed to be determined in general terms. The decree expressly states that a final decree should be passed for payment of the amount that may be found due up to the date of delivery of possession to the 2nd plaintiff. There is no ambiguity in the construction of the decree, As pointed out by Lord Hobhouse in Maharaja of Bharatpur v. Rani Kanno Dei, ILR 23 All 181 it is not possible for us to place a construction on the decree "which would make it in accordance with law, rather than to the opposite one." As we are clear that the decree specifically provides that mesne profits should be determined up to the date of delivery of possession, there is no room for reading the terms of Order XX Rule 12 (c) into the decree and, restrict the mesne profits only up to three years from the date of the decree. If really the appellant felt aggrieved by the preliminary decree, his remedy was to have preferred an appeal and challenged the correctness of the decree. The preliminary decree has now become final, and it is not open to us to go behind that decree and hold that mesne profits are payable only for a period of 3 years from the date of the decree of the High Court. In this connection, we may refer to the recent decision of this Court in Narayana v. Tirupathi Devasthanams, 1958 Andh. LT 19: (AIR 1959 And-Pra 64). The question that arose before the learned Judges was whether they could interfere in an appeal as against the final decree with a preliminary decree granting mesne profits for more than 3 years prior to the institution of the suit. The relevant observations are at page 33 and are as follows: "It may be mentioned that the defendant did not raise any point before the learned Judges that the Subordinate Judge was wrong in awarding mesne profits from the year 1933. The directions given in the decree in respect of mesne profits was confirmed by the High Court. In the circumstances, it is not open in a mesne profits enquiry to go behind preliminary decree which was confirmed by the High Court. But as the decrees have become final, the parties are bound by it." The preliminary decree passed by the Subordinate judge may be erroneous, but it cannot be held that it was without jurisdiction. Vide Gora Chand Haldar v. Pratulla Kumar Roy, ILR 53 Cal 166: (AIR 1925 Cal 907) (FB).