IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 AS.No. 648 of 1996() ----------------------------- I.A.NO.1616/1988 IN OS.51/1986 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT/PETITIONER/PLAINTIFF: ------------------------------------------------------ PARTHAN, S/O.MADHAVAN, RESIDING AT ENARA HOUSE, KAMBRATHE CHALLA P.O., MUTHALAMADA, PALAKKAD DISTRICT. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, ADV. SMT.SINDHU MANOJ, SRI.T.C.SURESH MENON. RESPONDENTS/RESPONDENTS/DEFENDANTS: --------------------------------------------------------------------- *1. MADHAVAN, S/O. APPU, *(DIED) 2. JANARDHANAN, S/O.MADHAVAN. 3. RAGHUVARAN, S/O.MADHAVAN. 4. PARIJAKSHAN, S/O. MADHAVAN. RESPONDENTS 1 TO 4 ARE RESIDING AT ENARA HOUSE, KAMBRATHE CHALLA P.O., MUTHALAMADA, PALAKKAD DISTRICT. 5. PALAKKAD PRADHAMIKA KRISHI VIKASANA BANK, REPRESENTED BY ITS SECRETRY, PALAKKAD. *ADDL. R6 TO R8 IMPLEADED ADDL. R6: M. SUMATHY, D/O.MADHAVAN, RESIDING AT KARAKKADE, KIZHAKKEMURI, ELAVANCHERY POST, (VIA) NENMARA, PALAKKAD DIST. AS.No. 648 of 1996 ADDL. R7: M. SOORYA KUMARI, D/O.MADHAVAN, RESIDING AT NADUPPATHY KALAM, NANDANKIZHAYA, ANAMARI POST, MUTHALAMADA POST, PALAKKAD. ADDL. R8: USHA DEVADAS, D/O.MADHAVAN, RESIDING AT CHEENIKOLAMBU KALAM, VAVULLIPURAM POST, THONIPADAM, ALATHUR, PALAKKAD. *REMAINING LEGAL REPRESENTATIVES OF THE DECEASED R1 ARE IMPLEADED AS ADDL. R6 TO R8, VIDE ORDER DATED 07/03/2003 ON C.M.P.234/2003. BY ADV. SRI.A.K.MADHAVAN UNNI. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 648 of 1996 ORDER ON I.A.NO.4334/2004 IN A.S. NO.648/1996 CLOSED 30/08/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N. KRISHNAN, J. ........................................... A.S.NO.648 OF 1996 ............................................. Dated this the 30th day of August, 2010. J U D G M E N T This is an appeal preferred against the final decree in O.S.No.51/1986 of the Subordinate Judge's Court, Palakkad. As per the final decree, properties had been allotted towards 1/5th share of the plaintiff. What is challenged in this appeal is only with respect to the mesne profits. Therefore I confine my finding to the question of mesne profits. There are two items of property. One item is having an extent of 4 acres and the other item is having an extent of 18 cents. 2. The learned trial judge when he dealt with the question of mesne profits held that so far as 4 acres item is concerned, the profit would be Rs.24,000/= and for the other item, it would be Rs.1,600/=, i.e., the Commissioner had found that the total derivable income after deducting the expense would be Rs.25,600/=. But the court below held that for two years, the plaintiff had bid the right to cultivate in auction for a sum of Rs.3,000/= each. Therefore the court below held that plaintiff can withdraw Rs.6,000/= deposited by him with respect to 4 acres of property and : 2 : A.S.NO.648 OF 1996 also get at the rate of Rs.320/= per year from item 2 for 10 years. 3. The learned young counsel for the appellant would contend before me that the Commissioner had faultlessly reported about the income derived from the property and therefore, it has to be accepted as such and mesne profits be awarded. 4. Even if I accept the young counsel's argument, there are some defects in following the same. According to the plaintiff, the profit derivable from the property per year would come to Rs.25,600/= i.e., Rs.24,000/= from item 1 of the plaint schedule and Rs.1,600/= from item 2. When he has bid the right to take in auction, he had only deposited Rs.3,000/=. So when that argument is accepted, he is bound to pay the mesne profits as assessed by the Commissioner for the reason that he had cultivated the property during the two years. When that is done and the same rate is calculated for the other years, then there will not be much difference. 1. 5. Therefore I feel that the trial court was justified in holding that the plaintiff can withdraw Rs.6,000/= which : 3 : A.S.NO.648 OF 1996 he had deposited as mesne profits so far as it relates to item 1 and get at the rate of Rs.320/= for a period of 10 years from item 2. No much injustice has been caused to the plaintiff and it is just and proper. Therefore the final decree passed by the trial court does not call for any interference. Therefore the appeal is dismissed but without costs. M.N. KRISHNAN, JUDGE. cl : 4 : A.S.NO.648 OF 1996 M.N. KRISHNAN, J. ........................................... A.S.NO.648 OF 1996 ............................................. 30th day of August, 2010. J U D G M E N T