IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY SECOND DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE C.V.RAMULU APPEAL SUIT No.2357 OF 1992 Between: Bommareddi Venkateswara Reddy and others. ..... APPELLANTS AND Kallam Basivi Reddy and others. ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE C.V. RAMULU APPEAL SUIT No.2357 OF 1992 JUDGMENT: This appeal, under Section 96 of the Code of Civil Procedure, 1908, is directed against the order and decree, dated 08.07.1991, in I.A.No.498 of 1975 in O.S.No.66 of 1964, on the file of the Subordinate Judge, Machilipatnam. The appellants are the legal heirs of defendant No.11 in the suit, who purchased some properties from the other defendants in the suit. They were brought on record during the pendency of the present I.A.No.498 of 1975, which was filed for appointing a Commissioner to ascertain the mesne profits, as defendant No.11 died during the pendency of the said application. The respondents herein are the plaintiffs. They filed the suit O.S.No.66 of 1964 for possession of plaint ‘C’ Schedule properties and for partition of items 1 to 4 and 7 and 8 of the plaint ‘A’ schedule properties and other schedules. The suit was dismissed on 30.09.1966. Aggrieved thereby, an appeal A.S.No.296 of 1967 was filed before this Court, which was allowed and attained finality. Thereafter, an application I.A.No.36 of 1974 was filed for passing a final decree for partition of the property, appointment of Commissioner and other reliefs and the same was allowed on 17.08.1976. In the meanwhile, the present I.A.No.498 of 1975 in O.S.No.66 of 1964 was filed by the respondents herein/plaintiffs before the Court below for appointing a Commissioner to ascertain the mesne profits for items 1 to 4, 7 and 8 of ‘A’ Schedule and ‘C’ schedule properties from the date of filing of suit till delivery of possession and to file a report in the Court. Thereafter, the Court below appointed the Commissioner, who submitted his report. Thereupon, the parties filed their objections to the Commissioners Report. The Court below after taking into consideration of the Commissioner Report, objections filed thereto, and also the submissions made by both the parties, ordered the present I.A. entitling the respondents herein for mesne profits of Rs.2,43,356.89 Ps. and directed that the final decree be drafted after payment of the Court fee only. Aggrieved thereby the present appeal suit is filed by the appellants, legal heirs of defendant No.11 in the suit. The main grievance of the appellants is that the present application is allowed, granting mesne profits of Rs.1,01,527/- in so far as the plaint ‘C’ schedule properties are concerned, which were in possession of defendant No.11. Now the learned counsel for the appellants strenuously contended that these appellants are liable to pay only 1/3rd of the total mesne profits over the ‘C’ schedule properties, even assuming without admitting that the appellants are liable to pay mesne profit to the respondents/plaintiffs. The Court below ought to have seen that the appellants were impleaded in the present application, after the enquiry into the mesne profit was concluded by the Commissioner, and that the appellants did not have any opportunity to adduce any evidence to prove that the mesne profit arrived at by the Commissioner was wrong. In so far as the ‘C’ schedule property was concerned, the mesne profits arrived at by the Commissioner against the appellants was imaginary, exorbitant and was arrived at, without there being any evidence on record. There is no necessity of going into all the details. The findings recorded at paragraph No.6 of the impugned order reads as under: “…. According to the Commissioner the procurement of paddy prices as fixed by the Government will be much lower than the prevailing market rates. It seems much force in the above reasons given by the Commissioner. Except suggesting that to take the prices as mentioned in the paddy procurement orders, the respondents have not filed any record to show that the prices mentioned in the price reporter are false. In the absence of such plea and in the absence of any evidence to the said effect the Commissioner adopting the prices mentioned in the price reporter is quite reasonable and there is nothing to interfere with the finding or the adoption of the prices by the Commissioner on the basis of the price reporter. Therefore, the objection that the Commissioner relied on the prices of the price reporter is not tenable.” The above findings would indicate that absolutely no evidence was placed contra to the finding recorded by the Commissioner for ascertaining the mesne profits against the ‘C’ schedule properties in respect of the appellants, legal heirs of defendant No.11. In view of the same, I am of the opinion that even assuming that there is some lacunae in the impugned order, remanding the matter for reconsideration, as contended by the learned counsel for the appellants, would not serve any purpose and it may result in futile exercise, since it is about 19 years the I.A. was disposed of. Hence, the appeal is devoid of merits and is liable to be dismissed. Accordingly, the Appeal Suit is dismissed. There shall be no order as to costs. _________________ C.V. RAMULU, J March 22, 2010 MD