1 SA 647.2006 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 647 OF 2006 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders Mr. V.D.Gunale, Advocate for the appellant. ............................... CORAM : S.V. GANGAPURWALA, J. DATE : 15/12/2010 PER COURT : 1. This is defendant no. 2’s Second Appeal. 2. The Suit filed by the plaintiff for mesne profit came to be decreed by the Courts below. Defendant no. 2 assailed the said Judgment. The appellate Court dismissed the Appeal confirming the Judgment and decree passed by the trial Court. Defendant o. 2 has assailed the said Judgment in the present Appeal. 3. Mr. V.D.Gunale, learned counsel for the appellant contends that the Courts below have failed to take into consideration that the Suit itself was not tenable. If they wanted to make such a 2 SA 647.2006 prayer, they could have made it in the earlier Suit. This aspect has not been considered by the Courts below. The learned counsel further contended that there is absolutely no evidence to show the income out of the land held by the present appellant. In absence of any proof of income, the Court could not have awarded such an exorbitant amount as mesne profit. That would be against the basic principle governing the mesne profit. According to the learned counsel, even the plaintiff has admitted that the said land was being used for grazing cattles. 4. With the assistance of the learned counsel, I have gone through the Judgments. 5. It is the fact that the decree has been passed in favour of the plaintiff. The mesne profit is the consequence of the decree being passed in favour of the plaintiff in as much as it is meant to compensate for the loss which he had sustained on account of the possession being with-held by the defendant illegally. 6. The Courts have discussed the evidence on record. The evidence of the witnesses of the plaintiffs have been taken into consideration. Even the defendant’s witness has accepted that 15 – 20 bags of income is being taken. It is not the case that the land was not yielding any income. Even the entries in the 7/12 extract have been taken into consideration, which shows the crops which were 3 SA 647.2006 taken from the said land. 7. The Courts taking into account the totality of the evidence, have awarded the modest amount towards the mesne profit. The present Second Appeal being without any substantial question of law is dismissed, however, with no order as to costs. [ S.V. GANGAPURWALA ] JUDGE knp/SA 647.2006