1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR SECOND APPEAL NO.314/2008 WITH CIVIL APPLICATION No. 5399/2008 (Babarao Madhukarrao Kadu and others vs. Hari Janglu Burajkar ) -------------------------------------------------------------------------------------------- Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Mr R D Bhuibhar Adv. for the appellants Mrs. S.Deshpande, Adv.for respondent Coram : A.P.BHANGALE, J. Dated : 12 th November, 2009 Heard learned counsel for the respective parties, at length. 2. By means of this Second Appeal, the appellants have challenged the validity, legality and propriety of the judgment and order dated 6.9.2007 in Regular Civil Appeal No. 93/2004 which was dismissed by learned District Judge-1 Pandharkawada (Kelapur). 3. It appears the case of the appellants is that suit for possession and mesne profit was instituted in the Court of learned Civil Judge, Junior Division, Kelapur Dist. Yavatmal, bearing Regular Civil Suit No. 77/1988 which was decreed on 30th September, 1983 directing to hand over possession of the suit land. It also directed payment of Rs. 500/- per year as compensation for the year 1978 to 1980 for two years. The sum of Rs. 1200/- was payable as compensation. The decree was challenged in higher court but the same was dismissed. Thus, decree for possession was 2 executed pursuant to the order in Execution Application No.17/1997 and possession was handed over on 29.7.2000. 4. For compensation and mesne profit except for the period which was already ordered by the trial Court, Misc. Judicial Case No.7/2001 was filed by the applicant (decree-holder). The said application after enquiry was allowed by the learned Civil Judge Jr. Dn., Kelapur by order dated 21.7.2004 after enquiry, on merits, under Order 20 Rule 12 of the Civil Procedure Code ( in short “ CPC”). Thus, the mesne profits were arrived at at the rate of Rs. 3,000/- per year on the basis of evidence before the learned Joint Civil Judge Jr. Dn. and accordingly, the present appellants were directed to pay the amount of Rs. 60,000/- towards mesne profits for the income taken from 37R of land in Survey No.25/2 situated at village Karanji, Tq.Kelapur, Dist. Yavatmal, with further direction to pay interest at the rate of 5% per annum from the date of application till the amount is released, apart from direction to the applicants to pay the court fees in the sum of Rs. 5,230/-. The judgment and order was challenged in Regular Civil Appeal No.93/2004 which was dismissed by learned Addl. District Judge, Kelapur on 6.9.2007. 5. Learned Advocate for the appellants disputed the reasoning of the Courts below for awarding the mesne profits of Rs. 60,000/- along with payment of interest at the rate of 5% per annum from the date of application till the said amount is released. According to learned Advocate for the appellants considering the original decree for amount of Rs. 600/- per year for the period between 1978 and 1980, the amount decreed in the sum of Rs. 60,000/- by the Courts is exorbitant and ought not to have 3 been ordered more than 600 /- per year as originally decreed. 6. These contentions have been opposed by the learned Advocate for the respondent on the ground that fact finding enquiry was carried out by the trial Court and on the basis of evidence of various witnesses regarding profits earned from the suit lands by the appellants were considered. The quantum of the amount arrived at by the trial Court is based upon evidence of witnesses regarding the irrigation facility available for the suit lands as also difference in prices of essential commodities produced from the suit lands, were in the evidence and the trial Court considering that the irrigation facilities may not be available for whole year but it depended upon regular rains, did consider the calculation of yearly net income of Rs. 5,000/- from the suit lands. However, considering all the circumstances on record particularly when the irrigation facility was not available for the whole year, concluded with considered view on assumption that even if dry crop like jwar and cotton are taken from 37 R of the land with average productivity, the compensation payable would be an amount of Rs. 3,000/- per year. The first Appellate Court appears to have considered the reasons given by the trial Court; as also witnesses examined before the trial Court from the Irrigation Department and also observed in paragraph 9 that it is clear that appellants have got the yield more than Rs. 5,000/- per year and, therefore, net profit must not have been less than Rs.3,000/- as granted by the trial Court. Considering the fact that appellants had illegally encroached upon the field of Respondent ad-measuring about 38 R with loss of about 1R dug possibly in the nullah from which water was taken. 4 It appears that the fact-finding enquiry under Order 20 Rule 12 regarding income from the suit land was carried out with the help of witnesses examined although there could be no documentary evidence regarding agricultural income. The trial Court is certainly at liberty to use its discretion to arrive at the quantum of actual profits that may have been taken from the suit land during the period of encroachment. Considering therefore the finding of facts, I think this court can not interfere with those finding of fact at the stage of Second Appeal, because, right of appeal is neither natural nor inherent. It is substantive statutory right regulated by law at the stage of Second Appeal. This Court is required to consider as to whether there is any question directly or substantially affecting the rights of the parties. In other words, the case must involve substantial question of law. Concurrent findings of fact may be erroneous can not be disturbed by the High Court in exercise of power sunder section 100 of the CPC, as it is not within the domain of this Court to investigate ground on which the findings were arrived at by the Courts of facts. Bearing this principles in mind, after hearing submissions at the Bar, I do not find any substantial question of law so as to interfere with the judgments of the Courts below in this case. Second Appeal is dismissed. Needless to say, in view of dismissal of Second Appeal, Civil Application does not survive. The same is also disposed of. JUDGE. sahare