Mohammed Baig vs Ismail Begh and Others

B.K. Somasekhara, J.—The Judgment and Decree of the learned District Munsif, Bodhan in O.S. No. 213 of 1981 dated 30-7-1996 are sought to be revised in this Revision Petition.

The Petitioner is the defendant in the suit whereas the respondents were the plaintiffs. The suit was filed u/s 6 of the Specific Relief Act, 1963 alleging that the plaintiffs were dispossessed of the suit schedule property by the defendant without their consent and forcibly. On a contest, the learned District Munsif found that the plaintiffs were in possession of the suit property within six months prior to the date of suit and accordingly directed that they be put in possession of the same.

Smt. A. Sushanti, the learned Counsel for the petitioner has contended that the learned District Munsif has exceeded his jurisdiction in deciding the question of title and also awarding mesne profits in a proceeding u/s 6 of the Specific Relief Act.

Mr. Shyam Sundar, the learned Counsel for the respondents/plaintiffs has contended that all questions leading to the final decision were to be decided incidentally to know whether the plaintiffs had been dispossessed within six months prior to the date of the suit and whether they should be restored to the possession and therefore any such expression cannot be taken as exceeding the jurisdiction.

On going through the Judgment of the learned District Munsif, this Court finds no exercise of excess jurisdiction or illegality in passing the decree. The only question involved in the suit (was) covered by Issue No. 1, was whether the plaintiffs were dispossessed from the suit property within six months prior to the suit. Based on evidence, the finding on such an issue is given in the affirmative. Both oral and documentary evidence in the case supported such a finding. The defendant''s case was found to be not, probable. Although controversy was raised regarding the identity of the property, the Court was able to find that the possession of the suit property can be restored to the plaintiffs. Although there are certain expressions made incidentally by the learned District Munsif, ultimately the matter is decided on the main question, whether the plaintiffs were dispossessed within such a period prior to the suit. This Court, in revisional jurisdiction, finds no justification to interfere with such a finding or the decree.

Regarding the other contention that the learned District Munsif could not have ordered recovery of mesne profits in such a suit, there appears to be some force. The scope of such a suit is limited to holding an enquiry into the question whether the person alleging dispossession was in possession of the property within six months prior to the date of suit and neither the question of title nor the possession based on title can be gone into. Therefore, in D. Nataraja Achari Vs. Balambal Animal, ., and Babburu Basavayya and Others Vs. Babburu Guravayya and Another, , it was held that the rule applies only to cases for ejectment or recovery of possession from a person in possession without title together with a claim for mesne profits, past or future. The rule so discharged implies that the relief of mesne profits can be passed only in case of recovery of possession from a person who has no title to be in possession, the enquiry regard ing which cannot be held in such a suit. Moreover, the definition of ''mesne profits'' in Section 2(12) of the CPC implies that the Court will find that a person in possession of such property would be in wrongful possession and makes profit from such wrongful possession which is going to be enquired under Order 20.R.12 of CPC to give a finding as such. In that view of the matter, the relief of mesne profits given is an excess exercise of jurisdiction and illegal and deserves to be set aside.

In the result, the Revision Petition is allowed in part. The Judgment and decree of the learned District Munsif are confirmed except to the extent of awarding mesne profits regarding which the respondents/plaintiffs shall be entitled to seek any other remedy available to them in law including their cross- claim, if any suit is filed by the revision petitioner in accordance with law.

As prayed by die learned Counsel for the Petitioner to enable the petitioner to seek any other legal remedy, the execution of the decree is ordered to be postponed for a period of 15 days from today. There shall be no order as to costs in this petition.