MALATI Vs. KRUTIBAS

JUDGEMENT

(1.) Plaintiff is the appellant against a final decree in a suit for partition.

(2.) After the preliminary decree ascertaining the share of parties, the final decree proceeding was initiated for allotment of the lands in accordance with the shares. In the said proceeding plaintiff filed an application for determination of the profits of the lands in possession of others and for a direction to pay it to him. Total land allotted to the share of the plaintiff is 141 Bharanas 19 Nouties which is the popular term of expression unit of area in Ganjam District. Trial Court appointed a Commissioner who reported that plaintiff is entitled to Rs. 8,712/- in terms of cash equivalent of the produce which would have been the profit. There was no direct evidence before the Commissioner regarding the yield. On the basis of average annual yield and after deducting the average expenses incurred the said amount was determined. Trial Court also examined same witnesses and referred to some documents known as Adangals to come to the same conclusion. Plaintiff claims that he is entitled to about Rs. 50,000/- towards profit for eighteen years for which period he could not enjoy the usufructs of his legitimate share.

(3.) There is no direct evidence relating to the yield per year or the profits arising themfrom. In support of the case of the plaintiff some Adangals have been produced. Trial Court has not believed them. The Adangals did not disclose the average yield per acre or per bharan. In such circumstances, the Commissioner at the spot on examination of some witnesses having come to the couclusion that the profit would be Rs. 8,712/- per acre and the trial Court also, on assessment of evidence having come to the same conclusion. I am not inclined to differ from the finding of the trial Court in that respect since the entire calculation has been based on guess work which cannot be held to be unreasonable.