Karnataka High Court
Husain Shariff vs Fathimabi on 30 May, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:18573
RSA No. 830 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 830 OF 2018 (RES)
BETWEEN:
1. HUSAIN SHARIFF
AGED ABOUT 73 YEARS,
S/O LATE ABDUL KAHDER SAB
2. SALEEMA JAN
AGED ABOUT 66 YEARS,
D/O LATE ABDUL KHADER SAB
3. REHAMATH BI
AGED ABOUT 64 YEARS,
D/O LATE ABDUL KHADER SAB
WORKING AS AYA, RAMPUR
RAMPUR SHISHU VIHARA
NEAR SHISHU VIHARA
Digitally signed
by DEVIKA M NEAR SRIRANGAPATNA TOWN
Location: HIGH MANDYA DISTRICT-571401.
COURT OF
KARNATAKA 4. AHAMED SHARIFF
AGED ABOUT 62 YEARS,
S/O LATE ABDUL KHADER SAB
APPELLANTS NO.1, 2 AND 4 ARE
R/IN PORTION OF NO.2366, 5TH CROSS,
MADAVACHAR ROAD, K.R.MOHALL,
MYSURU - 570 001.
...APPELLANTS
(BY SRI. B.S.NAGARAJ, ADVOCATE)
-2-
NC: 2024:KHC:18573
RSA No. 830 of 2018
AND:
1. FATHIMABI
SINCE DEAD BY HER LRS
1(a) JABEENA TAJ
AGED ABOUT 42 YEARS,
D/O LATE MOHAMMED DASTGEER SAHIB
1(b) BABY ALIAS TAB SUM HARA
AGED ABOUT 40 YEARS,
D/O LATE MOHAMMED DASTGEER SAHIB
RESPONDENTS 1(a) AND 1(b)
RESIDING AT NO.2366, 5H CROSS,
MADHAVACHAR ROAD, K.R.MOHALLA,
MYSURU-570001.
2. TEHARA BEGUM
AGED ABOUT 58 YEARS,
D/O LATE MOHAMMED GHOURS PEER
3. ZAHIDA BEGUM
AGED ABOUT 53 YEARS,
D/O LATE MOHAMMED GHOURS PEER
4. ZAKIRA BEGUM
AGED ABOUT 49 YEARS,
D/O LATE MOHAMMED GHOURS PEER
5. MOHAMMED BEGUM
AGED ABOUT 46 YEARS,
S/O LATE MOHAMMED GHOURS PEER
6. SRI ZIYA PASHA
AGED ABOUT 43 YEARS,
S/O LATE MOHAMMED GHOURS PEER
RESPONDENTS NO.2 TO 6 ARE
RESIDING AT BEHIND SANGAPPA CHATRA
-3-
NC: 2024:KHC:18573
RSA No. 830 of 2018
NEAR RAILWAY STATION
MANDYA TOWN - 571 401.
...RESPONDENTS
(BY SRI N. NANJUNDA SWAMY, ADVOCATE FOR
R1(a & b) & R2 TO R6)
THIS RSA IS FILED U/S.100 OF CPC, 1908 AGAINST THE
JUDGEMENT AND DECREE DATED 16.12.2017 PASSED IN
R.A.NO.202/2017 ON THE FILE OF THE III ADDITIONAL
DISTRICT JUDGE, MYSURU, DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE DATED 07.01.2017
PASSED IN MISC.NO.97/2010 ON THE FILE OF THE PRL.
SENIOR CIVIL JUDGE AND CJM, MYSURU.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellants and also the learned counsel for
the respondents.
2. This second appeal is filed against the order
passed by the Trial Court in Misc No.97/2010 when the
proceedings was initiated under Order 20 Rule 12 of CPC
to avoid mesne profits in respect of the suit schedule
property and also interest at the rate of 18% p.a., from
the date of the suit till the realization of the cost.
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3. The Trial Court having considered the material
on record particularly the evidence of PW1 in paragraph
No.14 and also the document at Ex.P1 to Ex.P12 discussed
in paragraph No.16 and also the evidence of RW1 in
paragraph No.17 and also considering the document
marked as Ex.R1 to Ex.R24, in detail discussed in
paragraph Nos.18 and 19 about the evidence of PWs and
also the evidence of DWs. In paragraph No.21 taken note
of the petitioners are entitled to get mesne profits from
the respondents in respect of the suit schedule property
that too for a period of 05.03.1996 to 22.12.2009 till the
date of handing over the possession of the property in
respect of petitioner's are concerned comes to the
conclusion that no material on record to establish the fact
with regard to the rate of rent for a period let out from
05.03.1996 to 22.12.2009 and considering in the absence
any material on the record, taken note of the admission
for having let out the shop in favour of PW2 at the rate of
Rs.100/- and consider the same and ordered to pay the
mesne profits at the rate of 10% of existing rent for every
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year and passed an order by allowing the petition. Being
aggrieved by the same, an appeal is filed in
R.A.No.202/2017 and First Appellate Court also on
reassessing the material available on record, particularly in
paragraph No.21 held that mesne profit petition is filed in
respect of two portions of 20 x 33 feet each allotted to
petitioner Nos.1 to 3 and petitioner Nos.4 to 9 from the
date of the suit (05.03.1996) till the date they took over
the possession of their respective shares and also
discussed in paragraph No.28 and considering the
objections filed in the miscellaneous proceedings taken
note of the admissions in paragraph No.3 of the objection
statement and comes to the conclusion that the
respondents refused to receive the rent from Hussain khan
to the petitioner Nos.1 to 3 before possession through the
Court commissioner. Hence, the First Appellate Court
passed an order directing to pay the mesne profits till the
handing over the possession of the property to the
petitioner Nos.1 to 3. Both the Courts have given the
concurrent finding.
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4. The counsel appearing for the appellants would
vehemently contend that even admitting the rate of rent
from Hussain khan even admitting the rate of rent in 1/3rd
ought to have been 1/3rd out of Rs.100/- and not the
entire Rs.100/- as ordered by the Trial Court as well as the
First Appellate Court. Hence, it requires interference of this
Court and frame the substantial question of law.
5. Per Contra, the counsel appearing for the
respondent would vehemently contend that the order of
the Trial Court is very clear with regard to the possession
which was handed over the petitioner in view of the
commissioner report, mesne profits is considered and not
committed any error and made it clear in paragraph No.21
and 28 of the First Appellate Court order and discussed in
detail regarding the mesne profits since the petitioners are
entitled only in respect of two portions of 20 x 30 feet
which was allotted in favour of petitioner Nos.1 to 3 and
hence the very contentions of the appellants cannot be
accepted.
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6. Having heard the counsel for respective parties
and also on perusal of material available on record, the
Trial Court as well as the First Appellate Court taken note
of the material available on record particularly the rent
which has been collected by the appellants herein in
respect of the property allotted in favour of the petitioner
Nos.1 to 3 and 4 to 9, the same is made it clear in respect
of the mesne profits is concerned and the Trial Court in
detail discussed in paragraph No.21 with regard to the
entitlement of the lumpsum and rent which has been
collected by appellants herein and in the absence of
material also comes to the conclusion that existing rate of
Rs.100/- which is remitted and taken note of the period
from 05.03.1996 to 22.12.2009 and considered for
enhancement 10% for every year and passed an order.
The First Appellate Court also not committed any error in
considering the evidence with respect to mesne profits and
the same is also based on admitted material on record i.e.,
Rs.100/- month that too in respect of portion allotted in
favour of the petitioners who have filed the petition for
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mesne profits before the Trial Court and taken note of the
period from the date of the suit i.e., 05.03.1996 to
22.12.2009. Hence, I do not find any error committed by
the Trial Court in considering the mesne profits in respect
of the petitioners is concerned. The First Appellate Court
also not committed any error. Hence, I do not find any
error committed by both the Courts and there is no
material to invoke section 100 of CPC and no grounds are
made out to frame any substantial question of law.
7. In view of the discussions made above, I pass
the following:
ORDER
The second appeal is dismissed.
Sd/-
JUDGE
RHS
