REGULAR SECOND APPEAL No.4637 OF 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4637 of 2010 DATE OF DECISION: FEBRUARY 10, 2011 Jasbir Singh & others .... Appellants Versus Ranjit Singh & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Baljinder Singh Sra, Advocate for the appellants. * * * * L.N. MITTAL, J. (ORAL) Defendants Jaspal Singh etc. are in second appeal. Suit was filed by Hari Singh plaintiff (since deceased and represented by respondents as his legal representatives) against the appellants for recovery of Rs.5,76,000/-. Plaintiff alleged that he is owner of Mini Bus No.PB-02-C-9719, also having route permit in his name. He used to earn Rs.1,000/- per day by plying the said bus. However on 06.05.2000 at about 8pm while plaintiff's son Jaspal Singh was plying the bus and plaintiff's daughter Sarabjit Kaur was also travelling in the bus and other persons were also there, the defendants forcibly took the bus from them near T point Taran Taran after beating the plaintiff and his son. The defendants refused to return the bus. The defendants themselves operated the bus on different routes. On 03.02.2002, FIR was registered against the defendants. On 12.03.2002, the bus was recovered by the police from defendants' relative Hari Singh. The plaintiff took the bus on Supurdari. Defendants remained in illegal possession of the bus from 06.05.2000 till 12.03.2002 and plied the same and earned Rs.1,500/- per day. The plaintiff, REGULAR SECOND APPEAL No.4637 OF 2010 -2- however, claimed mesne profits for use and occupation of the bus by the defendants @ 1,000/- per day only. The plaintiff accordingly sought recovery of Rs.5,76,000/-. The defendants contested the suit and broadly denied the plaint allegations. It was denied that plaintiff is owner of the bus in question. It was pleaded that defendant No.4 Rasal Singh who is father of defendants No.1 to 3 had half share in the bus as well as its permit and profit and loss, the plaintiff having the other half share. Both of them worked for 8 years according to terms and conditions of agreement dated 25.01.1991. However, in the year 1999, plaintiff tried to grab the share of defendant No.4. It was denied that the bus was snatched forcibly by the defendants on 06.05.2000. Various other pleas were also raised. Learned Civil Judge (Senior Division), Tarn Taran vide judgment and decree dated 04.03.2009 decreed the plaintiff's suit for recovery of Rs.5,76,000/- along with interest @ 6% per annum from the date of filing of the suit till recovery. In first appeal preferred by defendants, learned Additional District Judge, Tarn Taran vide judgment and decree dated 24.09.2010 modified the judgment and decree of the trial court by reducing the amount to Rs.750/- per day i.e. total amount of Rs.4,30,500/-. Feeling still aggrieved, defendants have filed instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants at the outset contended that mesne profits can be claimed only for immovable property and not for bus, REGULAR SECOND APPEAL No.4637 OF 2010 -3- which is moveable property. Reliance in support of this contention has been placed on judgment in the case of Kangabam Bira Singh Versus Manipur Drivers' Union Co-operative Association Ltd. And others, AIR 1957 Manipur 9. This judgment to some extent supports the contention raised by counsel for the appellants. However, in that case, defendants had become full owners of the lorry in question after execution of sale deed and they remained in possession of the lorry and relevant documents were also handed over to them and the plaintiff was left with no interest in the lorry and, therefore, it was held that the plaintiff could not be allowed any decree for recovery of mesne profits or any profits in the said case. Thus in that case, question whether mesne profits could be granted for lorry or not did not survive for determination as plaintiff had no interest in the lorry. Consequently, the said case is completely distinguishable on facts. On the other hand, Section 2(12) of the Code of Civil Procedure defines 'mesne profits' as under: “'mesne profits' of property means those profits, which the person, in wrongful possession of the property, actually received or might, with ordinary diligence, have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession” This provision nowhere refers to mesne profits being for wrongful possession of immovable property only. On the other hand, according to this definition, mesne profits of 'property' means the profits which the person in wrongful possession of such property actually received or might have received therefrom with ordinary diligence. The word 'property' has been used in this definition which would include immovable as well as moveable property. REGULAR SECOND APPEAL No.4637 OF 2010 -4- Consequently, the contention raised by counsel for the appellants is unsustainable. In addition to the aforesaid, the matter may also be examined from another angle. Even if for the sake of argument only it be assumed that suit for mesne profits is not maintainable, as the bus is movable property, the plaintiff could still claim requisite amount by way of damages or compensation for having been deprived of use of the bus. The plaintiff has specifically alleged that he was earning Rs.1,000/- per day by plying the bus. Consequently, by being deprived of possession of the bus, the plaintiff suffered loss of the said amount. Consequently case for damages or compensation is also made out on the facts pleaded in the plaint and mere use of wrong nomenclature of 'mesne profits' would not deprive the plaintiffs of his rightful due. In the aforesaid context, it is to be noticed that defendant No.1 while appearing in the witness box admitted that the bus stood registered in the name of Hari Singh-plaintiff. In fact in cross-examination defendant No.1 admitted that plaintiff was owner in possession of the Mini Bus in question and permit of the said bus was also in the name of Hari Singh-plaintiff. The version of the defendants that defendant No.4 had half share in the bus and its permit is not substantiated by any cogent evidence. Their case is based on so called agreement dated 25.01.1991, but the said agreement stands discharged vide judgment and decree dated 04.10.2007. Plaintiff Hari Singh was registered as well as real owner in possession of the bus as per evidence on record and as even admitted by defendant No.1 in his cross-examination. The bus was recovered in police case at the instance of defendant No.1 pursuant to REGULAR SECOND APPEAL No.4637 OF 2010 -5- disclosure statement made by him, vide recovery memo Exhibit P-1, from the house of defendants' relative. Both the courts below have found as a matter of fact that the defendants has taken possession of the bus. Even otherwise the question of bus being in possession of the defendants' relative would not have arisen. Moreover disclosure statement leading to recovery of the bus at the instance of defendant No.1 cannot be ignored. There is statement of Jai Pal Head Constable, PW-2 in this regard, in addition to the statement of Sarabjit Kaur (plaintiff's daughter) who was also travelling in the bus at the time of incident. Consequently, finding of the courts below in this regard in favour of the plaintiff does not warrant interference in second appeal as it is not shown to be perverse or illegal nor based on misreading or misappreciation of evidence. Defendants cannot take advantage of their own wrong. Under perception that defendant No.4 had half share in the bus, the defendants forcibly took away the bus. They had no right to take the law in their own hands. They could enforce their alleged right in due course of law. Thus even on principles of equity, justice and good conscience and rule of law, the judgments of the courts below do not warrant interference. Learned counsel for the appellant also contended that the plaintiff has not led sufficient evidence to prove the quantum of income from the bus. This contention also cannot be accepted. It is specific plea of the plaintiff that he was earning Rs.1,000/- per day by plying the bus. It is also specific plea of the plaintiff that defendants earned Rs.1,500/- per day by plying the bus, although plaintiff restricted his claim @ Rs.1,000/- per day. The aforesaid plea regarding income from the bus has not been specifically denied by the REGULAR SECOND APPEAL No.4637 OF 2010 -6- defendants. On the other hand, defendant No.1 simply expressed ignorance when cross-examined that the bus was giving income of Rs.1,000/- to Rs.1,500/- per day. Thus practically there is no rebuttal of the evidence led by the plaintiff. Moreover, lower appellate court has reduced the quantum of mesne profits/compensation to Rs.750/- per day. The same does not warrant further reduction. For the reasons aforesaid, no question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 10th February, 2011 'raj'