Balak Ram vs Nand Singh (died) Rep by L.Rs..

Pritpal Singh, J.

Balak Ram has filed this second appeal against the judgment and decree dated November 25, 1975, of the Additional District Judge, Sonepat, by which the decision of the trial Court was affirmed and the appellant''s first appeal was dismissed.

It is not disputed that Nand Singh plaintiffrespondent had obtained a decree for possession of the land in dispute by preemption against the defendantappellant Balak Ram on February 1, 1969. The preemption money was deposited by the plaintiff on February 19, 1969 and he, therefore, became entitled to get possession of the land on that day. The appellant failed to surrender possession till December 25, 1970. The plaintiff, therefore, filed a suit for recovery of Rs. 4500/ as mesne profits for the period from February 19, 1969 to December 26, 1970 for retaining possession of the land in dispute during this period illegally. While contesting the suit, the defendant appellant pleaded that the land in dispute was in possession of his tenants Puran and Gulzar Singh. It was denied that the plaintiff had taken possession of the land in dispute from him on December 26, 1970. He objected that the possession being of tenants they are necessary parties to the suit and that a claim for mesne profits by the plaintiff could not be entertained by a civil Court.

The trial Court held that the possession of the land in dispute was delivered to the plaintiff from the appellant on December 26, 1970 in execution of the preemption decree and as such the plaintiff was entitled to recover Rs. 2913.28 Paise as mesne profits from the appellant for having retained illegal possession of the land during the period from February 19, 1969 upto 26th December, 1976. Puran and Gulzar Singh, the alleged tenants, were not found to be necessary parties to the suit and it was held that the plaintiff''s suit was triable in a civil Court. On these findings a decree for Rs. 2913.28 Paise with proportionate costs was passed in plaintiff''s favour against the appellant. The lower appellate Court affirmed these findings and dismissed the first appeal of the appellant.

The contention of the learned appellant''s counsel at the threshold is that the land in dispute was in possession of the appellant''s tenant, therefore, a suit for mesne profits could not be entertained by a civil Court in view of section 77(3) (n) of the Punjab Tenancy Act, 1887 (for short `the Act''). This contention has no merit and deserves necessarily to be rejected. The said provision of the Act is applicable to a suit by a landlord for arrears rent against his tenant. In the present case the plaintiff has not claimed any rent from a tenant. As a matter of fact it has been held by the first appellate Court in clear terms that the plaintiff had obtained possession from the appellant in execution of the preemption decree and there is no evidence that the appellant had ever informed the plaintiff that the land was in possession of the tenants. No such objection was put forward by the appellant when possession was delivered to the plaintiff in execution proceedings. No tenant came forward to allege that he was in possession of the land. This finding of fact is unassailable in second appeal.

The learned appellant''s counsel placed reliance on a judgment of the Supreme Court in Lucy Kochuvareed v. P Mariappa Gounder and others, A.I.R. 1979 Supreme Court 1214, wherein it was laid down that a broad basic principle governing the liability for mesne profits is discernible from section 2(12) of the Code of Civil Procedure (which defines `mesne profits'' to mean " those profits which the person in wrongful possession of property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession") to the effect that the wrongful possession of the defendant is the very essence of a claim for mesne profits and the very foundation of the defendant''s liability therefor. As a rule, therefore, liability to pay mesne profits goes with actual possession of the land. Manifestly, the principle laid down in this judgment is more helpful to the plaintiffrespondent rather than the appellant. As mentioned earlier a finding of fact has been returned by the lower appellate Court that the appellant was in actual wrongful possession of the land in dispute and in execution proceedings the possession of the land was taken away from him and was delivered to the plaintiff. It is, therefore, clear that in the light of this judgment the plaintiff became entitled to get mesne profits from the appellant.

It was next contended by the learned counsel that even if the plaintiff was delivered possession from the appellant in execution proceedings the jurisdiction of Civil Court to entertain a suit for mesne profits by the plaintiff against the appellant is barred under section 14 read with section 77(3)(n) of the Act. Section 14 reads as follows :

"Any person in possession of land occupied without the consent of the landlord shall be liable to pay for the use or occupation of that land at the rate of rent payable in the preceding agricultural year, or if rent was not payable in the year, at such rate as the Court may determine to be fair and equitable."

It is contended by the learned counsel that the words used in section 14 are "any person possession of land occupied without consent of the landlord" and so the appellant being in possession of the land in dispute against the will of the plaintiff is covered by this section, and in view of section 77(3)(n) of the Act jurisdiction of civil Court to entertain a suit by a landlord for mesne profits recoverable under section 14 is barred. This argument has been answered in an earlier judgment of this Court in Faqir Singh v. Gurbachan Singh and others, 1971 P.L.J. 146. It was held in that judgment that according to section 14 if a person gets into possession of some land without the consent of the landlord, he is liable to pay for the use or occupation of that land at the rate of rent payable in the preceding agricultural year and it the rent was not payable in that year, then at such rate as the Court may determine to be fair and equitable. Under section 77(3)(n) of the Act, a suit by a landlord for arrears of rent or the money equivalent or for sums recoverable under section 14 are triable by Revenue Courts only. However, if the plaintiff brings a case on the allegation that the occupants of the land are trespassers and not his tenants, thereby denying the relationship of landlord and tenant between the parties, a suit for recovery of mesne profits against the occupants is not barred by the provisions of Sections 14 and 77(3)(n) of the Act. In other words it is only when owner of the land deems himself to be landlord of the person in possession of the land occupied without his consent that section 14 comes into play and not when the owner alleges that the occupant of the land is a trespasser. There is, therefore, no merit in the contention that the plaintiff''s suit could not be entertained by a civil Court.

No other point has been urged before me against the impugned judgment of the lower appellate Court. Hence discerning no force in the appeal, I dismiss the same with costs.