HIGH COURT OF CHHATTISGARH. BILASPUR SECOND APPEAL No. 122 OF 2007 APPBLLANT PLAINTIFF Ram Manorath Agrawal Versus RESPONDENT DBFBNDANT State ofChhattisgarh JUDGMENT Postfor 1^-6-2009 Sd/- N. K. Agarwal Judge zy mOH COURT OF CHHATTISGARH, BILASPUR SECOND APPEAL No. 122 OF 2007 APPBLLANT PLAINTIFF RESPONDENT DEFENDAIIT Ram Manorath Agrawal, aged about 70 years, son of Late Shri Bharaflal Agrawal, resident of Turi Hatri, Puraiu Basti, RaipLir (CG) Versys State of Chhattisgarh, fhrough CoUector, Raipur (CG) Shri H.B. Agrawal, Sr. Advocate with Shri Pankaj Agrawal, Adv. for fhe appeUant Shri A.S. Kachhawaha, Dy. Advocate General, for the respondent/State. SB: HO BLE SHRI JUSTICB N.K. AGARWAL JUDGMBNT (^-6-2009) Heard on admission. 2. The instant appeal is dtrected against the judgment and decree passed by the Additional District Judge, Bhatapara, Raipur dated 22-11-2006 in Civil Appeal No. 19A/2005, which was preferred by fhe appellant/plaintiff against fhe judgment and decree dated 2-5-2005 passed by Civil Judge Class 1, Baloda Bajar in Civil Suit No. 120A/2002, whereby fhe trial Court although passed decree for possession of the suit land in favour of fhe appellant/plaintiff, but dismissed fhe claim of fhe appeUant/plaintiffreg^rding damages / mesne profit at the rate of Rs. 1830/- per year from the date of instifution of the suit till recovery of possession over fhe suit land and fhe first AppeUate Court affirmed the decree passed by the trial Court. ^- (Hereinafter parties shall be referred to as per their description before the trial Court.) 3. Brief facts of the case are fhat the plaintiff instituted a suit against fhe defendant claiming reMef of possession over the suit land, also claimed mesne profit / damages at the rate of Rs. 1830/- from fhe date of suit tiU recovery of possession on the ground that the defendant encroached upon fhe suit land and constructed a canal illegally. 4. In reply, the defendant pleaded that the land has been acquired for construction of canal by mutual agreement and various persons have aLready been paid compensatiofa. The defendant is ready to pay compensation also for the suit land but the then Bhuswami of the suit land Samsevak and <r Manoharlal did not come forward for its registration in favour of the defendant and, therefore^ the compensation could not te paid to hlm, also pleaded fhat fhe defendant is stifl ready to pay compensation, also pleaded fhat canal was constructed in public \ interest, and fherefore, the suit is liable to be dismissed. 5. The Trial Court framed several issues. After appreciating the pleadings of the parties and the evidence led oral as well as documentaiy, held fhat fhe plajntiff' is Bhumiswaini of fhe suit property and he has been dispossessed by the defendant and therefore, the trial Court passed the decree for possession of the suit land in favoiir of the plaintifi, however fhe tiial Court decided the issue No. 5 regarding damage/mesne profit against the plainttff by holdi^ig tfaat the plaintiff failed to prove damages / and dismissed fhe plaintifi's plaint regarding damages and compensation. The above finding has been afiirmed by ftie 1st AppeUate Court. 6. The appellant moved an application (I.A. No. 1) whereby amendment was sought in the memo ofappeal to raise one more substantial question oflaw which reads ftius:- "C. Whether fhe tdal Court should have directed enquiry about mesne profit as required under Order 20 Rule 12 of fhe Code of Civil Procedure, fherefore, finduig as to para 19 of the judgment is Ulegal and case is liable to be remitted back for disposal afresh by directun^ enquiry as to mesne profit, as required under fhe above said Rule? 7. The main contention raised by Shri H.B. Agrawal, leamed Sr. Counsel appearing for the appellant is fhat the trial Court ought to have directed enquiry regarding mesne profit as required under Order 20 Rule 12 of C.P.C. and, therefore, fhe finding as to para 19 of the t'ial Court's judgment is Ulegal and the case is liable to be remitted back for disposal afresh regarding fhe claim of compensation/ damages put forth by fhe appellant by directing enquuy in this regard. 8. Having heard the contention raised by leamed Sr. Counsel for fhe appellant and having perused the record with utmost cu-cumspection, in my considered opinion, the mstant appeal has no merit The main'contention raised by fhe appeltant was neither pleaded nor raised before both fhe Courts below. Morc over, the damage, id fact, was claimed only for the period fi-om the date of institution of the suit till recover of the possession over the suit land and in fact, no claun regarding mesne profit /damages was raised for the period prior to institution of fhe suit and the specific amount at fhe rate of 1830/- per annum was clauned by the plainttff which according to bofh the Courts below, fhe plaintiff failed to prove. The finding regardii^ daniages / mesne profit was essentially a finding of fact, was ri^ifly recorded based on appreciation of oral as well as documentaiy evldence led by fhe parties. Therefore, in my considered opinion, no substantial question of law arises for determination in this appeal. 9. Appeal is fherefore, liable to be dismissed and is accordingly dismissed at admission stage. Consequently, I.A. No. 1 also stands dismissed. Sd/- N. K. Agarwal Judge