IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.118 of 2009 Judgment Reserved on: 23.06.2011 Date of decision: 21.09.2011 Krishna Devi & Another … …Appellants Versus Sant Ram … …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant(s): Mr.Sanjeev Kuthiala, Advocate. For the Respondent: Respondent Sant Ram in person. Dev Darshan Sud,J. This appeal is also directed to be listed alongwith RSA No.154 of 2009 as it arose between the same parties. 2. Plaintiff Sant Ram, respondent herein, instituted a suit for mesne profits of Rs.34,100/- alongwith interest at the rate of 18% per annum. 3. The case of the plaintiff, respondent herein, was that in Civil Suit No.253/1 of 1990 a decree was passed against the defendants, appellants herein, where they were directed to vacate the possession of the property. The plaintiff pleaded that a collusive Civil 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 Suit No.215/1997, titled: Shakuntala vs. Sant Ram, was instituted by the defendants in order to bye pass this decree. The suit was contested by the appellants herein on a number of grounds. One of the pleas was that they were not in possession of the suit property. The learned trial Court settled five issues. The first relating to entitlement of mesne profits, the second on maintainability and the third for not giving complete description of the suit property. All the issues were tried together. Considering the evidence on record, namely, Ex.PD, stating that the plaintiff was put in possession of the suit property on 30.12.2003, the learned trial Court concluded that he was out of possession from 12.10.1998 to 30.12.2003. On the question of quantum, mesne profits were claimed at the rate of Rs.1100/- per month. The learned trial Court holds that the criterion for claiming mesne profits is the profits which the person actually earns and mesne profits should be established on the record. The suit was accordingly decreed for a sum of Rs.34,100/- alongwith interest at the rate of 6% per annum from the date of filing of the suit till its realization. 4. In appeal, these findings have been affirmed by the learned appellate Court. While re-appreciating the evidence, the Court holds that on the evidence on record being that of the plaintiff and PW-2 Budh Singh, who stated that he was willing to take the suit land on rent at the rate of Rs.1100/- per month, the appeal 3 filed by the appellants was dismissed. Two Courts have concurrently found against the appellants. 5. This appeal was admitted on the following substantial questions of law:- “1. Whether a decision passed by a Criminal Court in separate proceedings can be binding on the Civil Court and whether the said decision of the Criminal Court, without being corroborated by any evidence, can be made basis of pronouncement of judgment by the Civil Court and whether such judgment is proper in law? 2. Whether without proving the criteria for determination and calculation of the mesne profits derived by the person in wrongful possession, a suit for recovery of mesne profits can be decreed in favour of the plaintiff claiming the mesne profits. 3. Whether a judgment of Criminal Court is binding upon a Civil Court and can be taken as conclusive proof of determining existing rights of parties in contradiction to the provisions of Section 43 of the Indian Evidence Act, 1872 and whether such judgment of the Criminal Court is to be corroborated by independent evidence for reaching a conclusive proof inter se the rights of the parties?” 4 6. Two Courts below have concurrently found against the appellants not on the basis of the judgment of Criminal Court but on the other evidence independently. The interminable course of litigation between the parties has been considered by me in RSA Nos.154 of 2009 and 151 of 2009, titled: Chaman Lal & Others vs. Sant Ram & Others and Subhash Chand & Others vs. Sant Ram & Another. 7. On the question of mesne profits, I do not find that it is merely the statement of the plaintiff and one Budh Singh without anything more which fixes the mesne profits as 1100/- rupees per month. In these circumstances, I cannot persuade myself to award this sum to the plaintiff. In these circumstances, while assessing damages/mesne profits, I deem fit and proper only a sum of Rs.26,000/- as mesne profits, alongwith interest as granted by the learned appellate Court. This appeal is allowed to that extent. September 21, 2011. (Dev Darshan Sud) (aks) Judge.