THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO S.A.No.521 OF 2009 J U D G M E N T: This Second Appeal has been preferred by the sole defendant in the Suit. The respondent is the plaintiff, who has instituted O.S.No.12 of 2004 on the file of the Junior Civil Judge’s Court at Sirpur, seeking eviction of the defendant from the suit schedule house bearing No. 4-62 and 4–63, situate at Sirpur Village and also for mesne profits @ 1,000/- per month till the date of eviction. The Trial Court has framed the following three issues, upon considering the pleadings set up by the parties: 1. Whether the Plaintiff is entitled for recovery of the suit schedule property ? 2. Whether the plaintiff is entitled for mesne profits ? 3. Whether the defendant is the adopted son of the plaintiff as contended by the defendant ? The plaintiff has examined himself as PW-1 and also got exhibited documents Exs.A-1 to A-3. The defendant has examined three witnesses on his behalf. On Issue No.1, the Trial Court has found that the plaintiff is a former Government servant and he was issueless. The plaintiff has demanded the defendant to vacate the house property, whereas the defendant has set up the plea of adoption by the plaintiff. That plea of the defendant has been negatived. Therefore, there was no difficulty for the Trial Court to decree the Suit, based upon the evidence on record. But, however, without any further enquiry into the matter, only on the plea that the claim of the plaintiff that a sum of Rs.1,000/- should be paid as mesne profits, per month, is on the high side, the Trial Court has decreed the Suit ordering for payment of mesne profits @ Rs.400/- per month from 15-01-2003 till the date of decree and thereafter, @ Rs.1,000/- per month till the possession is made over to the plaintiff. The defendant carried the matter in Appeal by filing A.S.No.5 of 2007, on the file of the Senior Civil Judge’s Court, Asifabad. One of the specific pleas which he has urged before the Appellate Court was that the Trial Court could not have ordered for payment of mesne profits @ Rs.400/- per month till the date of decree, thereafter @ Rs.1,000/-, as claimed by the plaintiff, without any further inquiry and collection of necessary evidence in that regard. But however, the Appellate Court has found no merit in the substantial questions of both fact and law urged before it, which center around, essentially, the plea of the defendant that he was taken in adoption by the plaintiff. Since, the Appellate Court also did not find any merit in the said contention, it had returned a finding of fact that the defendant is not taken in adoption by the plaintiff and, therefore, there is no relationship of father and son between the plaintiff and the defendant. Therefore, the Appeal preferred by the defendant has been dismissed. In the present Second Appeal, the following substantial questions of law have been raised: (A) Whether the grant of mesne profits by the trial Court @ Rs.400/- per month from 15-01- 2003 till the date of judgment and further grant of future mesne profits @ Rs.1,000/- per month from the date of judgment till the date of handing over of possession is proper or not in the absence of conducting any enquiry as contemplated under Order 20 Rule 12 CPC (B) Whether the Courts below committed illegality in granting the mesne profits without following the mandatory provisions as contemplated under Order 20 Rule 12 CPC by conducting separate enquiry ? I have heard Sri H. Venugopal, learned counsel for the Appellant and Sri G. Madhusudan Reddy, learned counsel who entered appearance on behalf of the plaintiff – decree holder. Insofar as the findings of fact recorded by both the Courts below are concerned, in respect of Issue Nos.1 and 3, as are framed by the Trial Court, there is hardly anything that is warranted to be said about, much less, any substantial legal infirmity behind those findings for them to be re-adjudicated. As a fact both the Trial Court and the First Appellate Court, have found that the defendant has not been taken in adoption by the plaintiff and on the other hand, the house property, which is the subject matter of consideration in the Suit, was the exclusive property of the plaintiff, who is a retired Government servant and since, he is issueless, he has allowed the defendant to stay treating him merely a tenant. But however, both the Courts have decreed the Suit granting mesne profits. The learned counsel for the Appellant has placed reliance upon a judgment rendered by this Court in KUCHANAPALLI NEELAMMA AND OTHERS v. DEEKONDA SADANANDAM AND OTHERS[1], wherein the learned single Judge of this Court has concluded the issue in the following manner: “16. The contention, as to the maintainability of the suit for recovery of possession in the context of the provisions of the Act, at once, appears to be attractive. However, it cannot be accepted for more reasons than one. Firstly, the plea was not raised either in the Trial Court, or in the Appellate Court. The grievance of the appellants was as to the on-issuance of notice under Section 106 of the Transfer of Property Act. The Courts below repelled the same by stating that the very fact that O.S.No.171 of 1985 was filed by the appellants, denying the title of the respondents, would relieve the latter from the obligations to issue such a notice. Secondly, not a pure question of law, which sometimes can be permitted to be raised even at the stage of second appeal. It is either a pure question of fact, or at least a mixed question of fact and law. For that, a specific plea must exist in the pleadings and it has to be proved through cogent evidence. Therefore, it cannot be entertained at this stage, for the first time. 17. There is some force in the contention of the learned Counsel for the appellants, about the ascertainment of mesne profits. The Trial Court determined the mesne profits, at the rate of Rs.1,000/- per month, just on the basis of guesswork and not on the basis of any cogent evidence. T h e mesne profits in respect of an immovable property have to be decided, after ascertaining the nature of property, the rent or income on that property, based on utility and locality. Admittedly, the respondents did not lead any evidence, in this regard. The Trial Court could have relegated such an enquiry, to a later stage, as provided for under Order 20 Rule 12 CPC. In that view of the matter, the decree insofar as grant of mesne profits is concerned, is liable to be set aside, leaving it open to the respondents to make an application in regard.” Though the learned counsel for the respondent - decree holder would submit that his client is willing to scale down the amount of mesne profits awarded by the Trial Court and as confirmed the First Appellate Court, more with a view to buy peace and give a quietus to the litigation, but nevertheless, the principle that the mesne profits have got to be ascertained on an Application to be moved in terms of Order 20 Rule 2 of the CPC, cannot be lose sight of. Therefore, I am of the opinion that the decree passed by the Trial Court, as confirmed by the First Appellate Court, deserves to be modified to the extent of deleting that portion of the decree, which awarded mesne profits @ Rs.400/- per month from 25-01- 2003 till the date of decree and thereafter @ Rs.1,000/- per month till the date of handing over possession to the plaintiff decree holder. Rest of the decree passed by the Trial Court ordering for eviction of the defendant appellant is confirmed. Only the decree relevant to the mesne profits is set aside. It is open to the plaintiff decree holder to take out a separate Application for determining the mesne profits. The learned counsel appearing on either side have brought to my notice that pursuant to an order passed in E.P.No.5 of 2007 taken out by the decree holder, the defendant has been evicted and possession of the property has been restored to the plaintiff decree holder on 25-08-2009. Therefore, any Application the plaintiff decree holder may move for determining the mesne profits has got to be necessarily scaled from 25- 08-2009 and the same may be decided as expeditiously as possible, preferably within six months from the date of institution of such proceedings. With this, the Second Appeal stands disposed of. No costs. --------------------------------- Nooty Ramamohana Rao, J mrk 18th June 2010 [1] 2005(5) ALD 223