IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 WP(C).No. 22401 of 2010(O) -------------------------- EP NO.171/2007 IN OS.54/1984 of SUB COURT, PATHANAMTHITTA .................... PETITIONER(S): --------------- T.M.CHACKO,AGED 67 YEARS, S/O.CHACKO MATHAI,OOTTUKUZHIYIL VEEDU, PULLUPURAM MURI,RANNI ANGADI, RANNI. BY ADV. SMT.C.G.BINDU SMT.C.G.AJITHA RESPONDENT(S): --------------- 1. FLORY GEORGE,W/O.GEORGE VARKEY, KURUDAMANNILAYA KAIPPALLIL,ALUNKAL VEEDU, KOTTATHOOR MURI,AYROOR VILLAGE,RANNI TALUK, PATHANAMTHITTA, PIN 653 713. 2. GEORGE VARKEY,G-382,PANAMPALLY NAGAR, ERNAKULAM,COCHIN-682036. ADV. SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE FOR R1 &2 SRI.K.MOHANAKANNAN FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.22401/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF EP NO.171/2007 IN OS NO.54/84 OF SUB COURT, PATHANAMTHITTA EXT.P2 TRU COPY OF THE PLAINT IN OS NO.79/9\1975 OF MUNSIFF COURT, PATHANAMTHITTA EXT.P3 TRE COPY OF JUDGMENT DATED 4.10.1983 OF THIS COURT IN SA 963/1981 EXT.P4 TRUE COPY OF ORDER DATED 19.1.1984 IN RP NO.99/83 OF THIS COURT EXT.P5 TRUE COPY OF PLAINT IN OS 54/1984 OF SUB COURT, PATHANAMTHITTA EXT.P6 TRUE COPY OF THE WRITTEN STATEMENT IN OS 54/84 EXT.P7 TRUE COPY OF THE OBJECTION TO PETITION IN IA NO.238/1987 IN OS 54/84 EXT.P8 TRUE COPY OF THE PETITION IN IA NO.404/87 IN OS 54/84 EXT.P9 TRUE COPY OF THE ORDER DATED 21.2.1992 OF CRP NO.477/92 OF THIS COURT EXT.P10 TRUE COPY OF ORDER DATED 6.5.1996 OF SPECIAL LEAVE TO APPEAL (CIVIL) NO.4577/1992 OF HON'BLE SUPREME COURT EXT.P11 TRUE COPY OF THE JUDGMENT DATED 22.12.1994 IN OS 54/1984 OF SUB COURT, PATHANAMTHITTA EXT.P12 TRUE COPY OF THE MEMORANDUM OF CROSS OBJECTION IN AS NO.591/1995 EXT.P13 TRUE COPY OF THE JUDGMENT DATED 4.6.2007 IN AS 591/95 EXT.P14 TRUE COPY OF MEMORANDUM OF RP. 945/2008 EXT.P15 TRUE COPY OF COMMISSION REPORT ALONG WITH MAHAZAR AND PLAN EXT.P16 TRUE OPY OF ORDER DATED 15.6.2010 IN EA NO.96/2009 EXT.P16(a) TRUE COPY OF ORDER DATED 15.6.2010 IN EA NO.354/2009 RESPONDENTS' EXHIBITS: EXT.R2(a) TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE SECOND RESPONDENT IN RP 945/2008 EXT.R2(b) TRUE COPY OF THE ORDER IN THE UNNUMBRED A.F.A DATED 30.7.2008 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.22401 of 2010 -------------------------------------- Dated this the 16th day of November, 2010. JUDGMENT This Writ Petition is in challenge of Exts.P16 and P16(a), orders passed by the executing court in E.P.No.171 of 2007 in O.S.No.54 of 1984 of the court of learned Sub Judge, Pathanamthitta. After several rounds of contest, respondents/plaintiffs got a decree in their favour for recovery of possession of the suit property, 7.55 acres with mesne profit. Though, initially value of improvements was allowed in favour of deceased defendant No.1, this Court in appeal reversed that finding and held that deceased defendant No.1 is not entitled to get value of improvements and at the same time found that respondents are entitled to get mesne profits. That decree has become final. Pursuant to that, respondents initiated execution proceedings. An Advocate Commissioner was appointed to ascertain quantum of mesne profits payable to the respondents. Advocate Commissioner has submitted Ext.P15, report assessing mesne profit based on the yield from various improvements including rubber trees found in the property. Petitioner contended that income assessed by the Advocate Commissioner is excessive and at any rate, respondents are not entitled to get mesne profits as regards the rubber trees in the property which according to the petitioner were planted by him. Executing court has passed Exts.P16 and P16(a), orders. As per Ext.P16 executing court declined to set aside report of the Advocate Commissioner and as per Ext.P16 (a), executing court ordered delivery of the property. It is contended by learned WP(C) No.22401/2010 2 counsel for petitioner that evidence on record is sufficient to show that rubber trees were planted by petitioner and hence respondents are not entitled to mesne profits arising therefrom. Learned counsel has taken me through the averments in the plaint to contend that it does not even mean that respondents had planted rubber trees and testimony of plaintiff No.2 to show that it was deceased defendant No.1 who had planted rubber trees in the suit property in the year 1991. According to the learned counsel, Advocate Commissioner has assessed the oldness of rubber trees as about 25 yeas in which case tress must have been planted in 1988 while according to the respondents trespass was in the year 1975 which also indicated that rubber trees were planted by petitioner. Learned counsel for respondents in response has taken me through the written statement filed by deceased defendant No.1 to show that there is no reference to planting of rubber trees in the suit property. According to the learned counsel, since the appellate court has allowed respondent to get mesne profits the entire amount assessed by the Advocate Commissioner is payable to the respondents. 2. So far as the request to set aside the report of Advocate Commissioner is concerned, no sufficient evidence was let in by the petitioner in support of that contention. On going through Ext.P15, report submitted by the Advocate Commissioner and hearing learned counsel I do not find reason to interfere with the income assessed by the Advocate Commissioner in Ext.P15. So far as interest payable on profits from the improvements is concerned, that WP(C) No.22401/2010 3 is part of 'mesne profits' as defined in Section 2(12) of the Code of Civil Procedure (for short, “the Code”). Hence that part of Ext.P16, order requires no interference. 3. But the question really arises whether rubber trees in the suit property were planted by respondent or, by deceased defendant No.1. Going by Section 2(12) of the Code which defines 'mesne profits', it does not include profits due to improvements made by the person in wrongful possession. If the rubber trees were planted by petitioner or deceased defendant No.1, then profits from those rubber trees cannot form part of 'mesne profits' as per definition under Section 2(12) of the Code. Age of the rubber trees stated by the Advocate Commissioner may be approximate. I find that no serious enquiry was conducted by the executing court to find who among the contestants had planted the rubber trees. That matter has to be enquired into by the executing court. But that need not prevent the executing court from ordering delivery of property and allowing mesne profits from the improvements (other than rubber trees). Though it is contended by petitioner that if rubber trees are planted by petitioner or deceased defendant No.1 respondents are entitled to recover possession of the land with those rubber trees also, I do not find merit in that contention. Courts below have not allowed petitioner to remove the rubber trees while surrendering possession of the property to the respondent. Being growing trees it must be treated as immovable property which respondent is allowed to recover possession. Hence respondent is entitled to recover possession of the property WP(C) No.22401/2010 4 with all improvements on it. In the light of what above stated, executing court has to enquire into whether rubber trees in the suit property were planted by petitioner or his deceased predecessor-in-interest or it was planted by respondents and decide based on that finding whether the income from the rubber trees and interest thereon will form part of mesne profit payable to the respondents. Resultantly this petition is allowed to the extent it concerned the order of executing court for payment of profits from the rubber trees and interest thereon to the respondents. The order to that extent is set aside. Executing court is directed to conduct an enquiry as to who planted the rubber trees in the suit property whether it was by the petitioner or his predecessor-in-interest or respondents and based on that finding decide whether profits from the rubber trees (as assessed by the Advocate Commissioner) and interest thereon will form part of mesne profit payable to the respondents. In other respects order passed by the executing court is confirmed. Respondents can take delivery of suit property with all improvements thereon. They can also realise mesne profits assessed by the Advocate Commissioner (other than the profits from the rubber trees with interest payable thereon) in Ext.P15, report. THOMAS P.JOSEPH, Judge. cks