THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD APPEAL SUIT No.2385 of 1990 Dated : 16.06.2010 Between : Vajja Audiseshamma ….. Appellant a n d Yerramneni Venkateswarlu & others ….. Respondents THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD APPEAL SUIT No.2385 of 1990 ORDER: This appeal is directed against the quantum of mesne profits granted by the trial Court as per its order in I.A.No.874 of 1984 in O.S.No.358 of 1970 dated 14.12.1987. One Yerramneni Atchaiah, father of the appellant herein, filed O.S.No.358 of 1970 for cancellation of a settlement deed and for a permanent injunction, which was later converted into a suit for possession. On his death during the pendency of the suit, the appellant and third respondent were brought on record as legal representatives and the suit was decreed by the trial Court on 23.07.1976. In A.S.No.950 of 1976 before the High Court, the decree of the trial Court was modified and mesne profits were directed to be paid by the respondents 1 and 2 from the date of the suit till the date of possession, which have to be determined on a separate application. Accordingly, the appellant filed I.A.No.874 of 1984 for determination of the said mesne profits after the appellant and third respondent took possession of the property from respondents 1 and 2 on 16.09.1984. Respondents 1 and 2 contested the request raising various contentions about the period of liability, the extent of property, the nature of the land and the quantum of income received therefrom. The trial Court appointed an Advocate Commissioner for ascertainment of mesne profits before whom, PWs 1 and 2 and RWs 1 to 3 were examined and Exs.P1 to P6 were marked. The Advocate Commissioner in his report dated 03.09.1987 fixed the mesne profits uniformly at Rs.1300/- per year for 14 years from 19.10.1971 to 1983- 84. The Advocate Commissioner also recommended grant of interest @ 12% per annum from first of April of each year and both parties filed their objections against the Commissioner’s report. After hearing the parties, the trial Court passed the impugned order dated 14.12.1987 referring to the definition of Mesne Profits under Section 2 (12) of the Code of Civil Procedure and also noting the history of the litigation from 1970 up to the order. The trial Court observed that no material was placed on record about the market value of the land or the maktha amount realized from the suit land. The trial Court observed the testimony of the appellant to be interested, while the Advocate Commissioner personally inspected the suit land and found it to be soil of ordinary fertility. The trial Court referred to the experience of the Advocate Commissioner in agriculture and presumed his observations to be probable. The trial Court noted the market value of the land shown by the appellant herself in the plaint at Rs.5,500/- per acre and found no difficulty in rejecting the objections of the appellant against the estimated mesne profits by the Advocate Commissioner. The trial Court also observed that Exs.P.3 to P.7 revealed that cotton crop was raised in the land from the year 1977, while there was no material on record to show what crops were raised prior to 1977. Though PWs 1 and 2 stated that commercial crops like cotton and tobacco were raised althrough, the trial Court also took note of the denial by RWs 1 to 3 and, on an analysis of the evidence, was of the view that the Commissioner was not correct in fixing the profits uniformly for all the years. The trial Court also referred to the details of the cultivation claimed by RW.1 and raised an inference that income from the suit land by raising commercial crops will be Rs.600/- per acre while such income from non-commercial crops raised prior to 1977 can be fixed at Rs.275/- per acre. The trial Court also noted that the same was the rental value noted by the appellant herself in the plaint and it was therefore of the view that the mesne profits to be granted have to be restricted to Rs.275/- per acre from 1971-72 to 1976-77 and Rs.600/- per acre for 1978-79 and 1980-81 to 1983-84 for an extent of Ac.1-97 cents. In fixing the period, the trial Court referred to absence of any material to show any derivation of profits by respondents 1 and 2 by raising any crops in 1970-71 and the trial Court also noted for that purpose that 0.22 cents of land was acquired by the Government for digging a canal out of Acs.2.02 cents. Coming to the interest to be awarded, the trial Court was of the opinion with reference to a binding precedent from this Court that award of interest @ 6% per annum will be reasonable and just. The trial Court accordingly allowed the petition without costs making the order executable on payment of Court fee and giving credit to Rs.4800/- deposited and withdrawn on 18.07.1977 towards mesne profits with counter interest thereon. The appellant questioned the said order herein contending that the burden lies on the respondents to account for the profits and not on the petitioner. The appellant also contended that a reasonable presumption ought to have been drawn that cotton/commercial crops were also raised prior to 1977 when they were raised since 1977 as seen from Exs.P3 to P.6. The appellant criticized the trial Court for relying on the rental value and the value of the property in 1968 ignoring steep rise in such values thereafter. The grant of interest was also claimed to be too low and hence the appellant filed the appeal valuing it at Rs.11,000/- for a period of 11 years. Learned counsel for the parties are heard. The only point for consideration is whether the estimation of the mesne profits as adopted by the Appellate Court needs any interference in the appeal? Though the appeal was dismissed for default insofar as the third appellant is concerned, by order of this Court dated 25.04.2006, the same makes no difference to the maintainability of the appeal as the liability of the respondents for payment of mesne profits as per the decree is in respect of respondents 1 and 2, but not on the third respondent. Section 2 (12) of the Code of Civil Procedure defines ‘mesne profits’ as those profits which the person in wrongful possession actually received or might with ordinary diligence have received from the subject property together with interest on such profits. If there is no evidence about the profits actually received by the person in possession, then the Court is left with the burden of assessing probable profits that might have been received from that property with ordinary diligence and in making such estimation, the Courts ordinarily take the assistance of an Advocate Commissioner, who, with his experience and wisdom and based on the oral and documentary evidence placed before him by the parties, will place the tentative estimation of the probable mesne profits before the Court. Similarly, in the present case also, an Advocate Commissioner was appointed by the Court and he gave his report which fell for consideration before the trial Court in the light of the statements made by both the parties. The trial Court made a detailed analysis of all the facts in issue and the grounds of appeal do not dispute the findings of the trial Court about the period for which the respondents 1 and 2 have to be made liable to pay the mesne profits in tune with the directions of the decree. The appellant did not bring to notice any provision or principle by which there can be any retrospective presumption about the nature of the crops that could have been raised in the said land based on any subsequent entries in the revenue records. When the trial Court refused to draw any presumption about commercial crops being raised in the said land prior to 1977 in the absence of any documentary evidence like Exs.P.3 to P.6 during that period, the trial Court cannot be considered to have deviated from any accepted principles of jurisprudence. Similarly, the trial Court gave cogent reasons as to why it agreed with the observation of the Advocate Commissioner about the land being one of ordinary fertility and given the vagaries of nature and the uncertainties of agriculture, reasonable estimation made by the trial Court for the relevant period cannot be considered perverse or baseless. There is no need to replicate the reasoning given by the trial Court, which is analytical and sound and needs no interference by this Court. Even in respect of the interest awarded by the trial Court, the same is in tune with the accepted principles and in the absence of any special circumstances, the grant of such interest cannot be considered unreasonable. The claim of the appellant that the burden of proof is on the respondents 1 and 2 to prove the profits on the basis of facts within their special knowledge will have no relevance after both the parties placed their contentions before the Advocate Commissioner and their objections before the trial Court. It is well settled that question of burden of proof loses its relevance when the evidence of both parties is placed before the Court unless such evidence is equally balanced. Under the circumstances, the appeal has to fail. However, before parting with the case, the able assistance rendered to this Court by Kumari KSL Tejaswi Chowdary, learned counsel on behalf of the appellant, in spite of her being a fresh entrant into the Bar, should be appreciated and placed on record. Accordingly, the appeal is dismissed without costs. ______________________ G.BHAVANI PRASAD, J 16th June, 2010 SUR