KABUL SINGH Vs. SARMUKH SINGH

JUDGEMENT

(1.) The plaintiff-appellant has filed this suit for possession of the agricultural land measuring 256 Kanals 13 Marlas as well as for the recovery of Rs. 19,500/- as mesne profits from the date of the institution of the suit and further mesne profits along with interest till the delivery of the possession of the land.

(2.) It was alleged in the plaint that the land originally belonged to one Tabe. On his death, it was inherited by his widow Smt. Hukman. She died on June 5, 1958. Thereafter, the land seems to have been mutated in favour of Kabul Singh, the plaintiff-appellant, on the basis of the Will executed by the said Hukman in his favour. Sarmukh Singh (now deceased) defendant-respondent instituted a suit in the Court of the Subordinate Judge Jullundur for a declaration of the suit land, against Kabul Singh, plaintiff-appellant. In that suit, he propounded a Will dated May 1, 1958, by Hukman superseding her earlier Will in favour of Kabul Singh. The said suit was decreed by the trial Court in favour of Sarmukh Singh but in the appeal which was filed on behalf of Kabul Singh the plaintiff-appellant in present case, the appellate Court set aside the decree passed by the trial Court and dismissed his suit. The second appeal filed by Sarmukh Singh was also dismissed. During the pendency of the second appeal in the High Court Sarmukh Singh had also made an application for the grant of an ad interim injunction restraining Kabul Singh from taking possession of the suit land or interfering with his possession during the pendency of the appeal. In that application status quo was ordered to be maintained on furnishing security for mesne profits by Sarmukh Singh, Raghbir Singh, defendant-respondent furnished security on behalf of Sarmukh Singh. It is in this background that Kabul Singh, plaintiff-appellant, filed the present suit for possession of the suit land as well as for the mesne profit both against Sarmukh Singh and Raghbir Singh, defendant-respondent, the surety. The suit was contested on behalf of the defendants. On the pleadings of the parties, the trial Court framed the following issues:-

(3.) As regards the decree for possession of the suit land, the same has become final against Sarmukh Singh (now deceased) as it was never challenged by him by way of an appeal. The present appeal has been filed by the plaintiff challenging the decree of the trial Court dismissing his suit for mesne profits. Thus, the only question involved in this appeal is: whether the suit for the recovery of mesne profits also was maintainable in the civil Court or not? As observed earlier the trial Court has dismissed the plaintiff's suit for the recovery of mesne profits on the ground that section 77(3) of the Act was a bar to the grant of that relief as claimed by the plaintiff. Section 77(3)(a) of the Act, reads :-