Bombay High Court
Popat Genu Khanekar vs Baban Laxman Mandekar(Died ... on 28 January, 2021
Bench: C.V. Bhadang
10-sast-97267-20 with iast-97268-20 with iast-97271-20
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL (ST) NO.97267 OF 2020
WITH
INTERIM APPLICATION (ST) NO.97268 OF 2020
WITH
INTERIM APPLICATION (ST) NO.97271 OF 2020
Mr.Popat Genu Khanekar ..Appellant
V/s.
Baban Laxman Mandekar (Died)
Through Lrs
1) Droupadabai B. Mandekar & Ors. ..Respondents
----
Mr.Ajay A. Joshi for the Appellant.
Digitally signed
Nilam by Nilam Kamble
Kamble Date: 2021.01.28
17:23:50 +0530 ----
CORAM : C.V. BHADANG, J.
DATE : 28th JANUARY 2021
P.C.
1. Interim Application No.169 of 2021 is an application for
condonation of delay of 217 days in filing a Second Appeal. On
hearing the learned counsel for the Applicant and perusal of the
application I do not find that a case for condonation of delay is
made out. However, in order to give quietus to the matter, I have
heard the learned counsel for the appellant, on the merits in the
N.S. Kamble page 1 of 5
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second appeal also and the application along with the Second
Appeal is being disposed of by this order.
2. The challenge in the Second Appeal, is to the judgment
and order dated 09th January 2020 passed by the learned District
Judge at Pune in RCA No.349 of 2013. By the said judgment, the
appeal filed by the appellant, challenging the judgment and order
dated 01st March 2013 passed by the learned Civil Judge Junior
Division at Pune in Mesne Profit Proceeding No.2 of 2010 has been
dismissed. Incidentally, the learned District Judge has also
dismissed the Cross Objection filed by the decree holder, for
enhancement of the Mesne Profits.
3. In pursuance of a decree dated 30 th April 1997 for
possession, admittedly the possession of the suit property was
delivered to the respondents decree holders on 10 th February 2009.
On 13th August 2010 the decree holders instituted proceedings for
determination of Mesne Profits under Order XX Rule 12 of the Code
of Civil Procedure ('CPC' for short). It is not necessary to reproduce
the intervening events. Suffice it to mention that the learned trial
Court by a judgment and order dated 01 st March 2013 has
determined the Mesne Profits of the suit land, (which according to
N.S. Kamble page 2 of 5
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the learned counsel for the appellant is agricultural land
admeasuring 11 Ares out of 79 Ares) @ Rs.2,472/- per annum. The
amount of total Mesne Profits, works out to Rs.68,749/-.
4. The appellants feeling aggrieved challenged the same
before the District Judge in which there was a cross-objection by
which the decree holder sought enhancement. As noticed earlier the
District Judge has dismissed the appeal as well as the cross-objection
and has upheld the order passed by the trial Court granting Mesne
Profits.
5. Mr.Joshi, the learned counsel for the appellant
submitted that the application was barred by limitation as it was not
instituted within three years, from the date of the delivery of the
possession. Secondly, it is submitted that the Appellate Court was in
error in observing that the determination of Mesne Profits, involves
"some kind of guesswork". Lastly, it is submitted, that the finding
recorded by the District Judge about quantum of the Mesne Profit is
perverse. Except these, there are no other contentions raised.
N.S. Kamble page 3 of 5
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6. After going through the order passed by the learned
trial Court and judgment of the Appellate Court, I do not find that
any of these contentions can be accepted.
7. The record discloses that the possession of the suit
property was delivered to the decree holders on 10 th February 2009
and the application for Mesne Profits was filed on 13 th August 2010.
Thus it was filed within three years. In that view of the matter,
ground as to the limitation does not survive.
8. Coming to the issue of determination of Mesne Profits.
'Mesne Profits' is defined in Section 2(12) of the C.P.C. as under:-
"Mesne Profits" of property means those profits which
the person in wrongful possession of such 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."
It can thus clearly be seen that 'Mesne Profits' would
mean the actual profits earned by a person in wrongful possession
or profits which could be earned by ordinary diligence. The second
part evidently would require some guesswork. It is well settled that
the determination of any compensation (Mesne Profits are a species
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of such compensation payable by a person in wrongful possession),
some reasonable guesswork is necessary, if not inevitable.
9. The mesne profits granted are @ Rs.2472/- per annum
which works out to approximately Rs.200/- per month. It is difficult
to accept that the quantum would be unreasonable by any
standards.
10. After having gone through the reasoning and finding
recorded by Courts below, I do not find that they suffer any infirmity
from requiring interference. The appeal does not involve any
substantial question of law and it is hereby dismissed.
11. In view of the disposal of the Second Appeal, all
pending Civil Applications are disposed of as infractuous.
C.V. BHADANG, J.
N.S. Kamble page 5 of 5
