IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.F.A.No.1699/2005 BETWEEN:
1. SMT. SANNAMMA W/O LATE GURUMALLAPPA MAJOR 2. SMT. NEELAMMA W/O VEERABHADRAPPA MAJOR BOTH ARE RESIDING AT VI CROSS EXTENSION NANJANGUD. ...APPELLANTS (BY SRI S NAGARAJA, ADVOCATE) AND:
1. SRI K M SADASHIVAMURTHY S/O LATE MARIMADAPPA MAJOR.
2. K M NINGARAJU S/O LATE MARIMADAPPA MAJOR.
3. SMT. SHIVAMMA W/O LATE MARIMADAPPA MAJOR ALL ARE RESIDING AT MUTTAHALVADI KEBBEHUNDI VILLAGE, SOSALE HOBLI T N PURA TALUK. ... RESPONDENTS (BY SRI N K KANTHARAJU, ADVOCATE- ABSENT) THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:31.08.2005 PASSED IN O.S. No.115/2001 ON THE FILE OF THE CIVIL JUDGE (SR.DN) T NARASIPURA DISMISSING THE SUIT FOR RECOVERY OF MESNE PROFITS.
THIS RFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Learned counsel for the appellant is present and learned counsel for the respondents is absent.
Appeal is directed against the judgment and decree passed in O.S.No.115/2001 on 31.08.2005 by the learned Civil Judge (Sr. Dn.), T. Narasipura, wherein, the suit of the plaintiff came to be dismissed.
2. In order to avoid confusion and overlapping, the parties are referred to in accordance with their rankings before the trial Court.
3. The plaintiff in O.S.No.115/2001 claims mesne profit of Rs.2,80,250/- from 22.07.1988 till the date of the filing of the suit with current and future interest at the rate of 18% p.a.
4. The further facts of the case are: suit schedule properties are stated to be the erstwhile joint family properties belonging to late Puttamadappa. Gurumallappa, husband of plaintiff No.1, Marimadappa, father of defendant Nos.1 and 2 and husband of defendant No.3. Thus, the relationship between the parties is, plaintiff No.1 represents her husband for the purpose of reckoning the share, defendant Nos.1 to 3 represent Marimadappa since dead being survived by defendant Nos. 1 to 3. Plaintiff No.2 is the daughter of plaintiff No.1. Husband of plaintiff No.1 is no more and plaintiffs are the legal representatives of Late Gurumallappa. After his death, plaintiffs demanded their ½ share in the properties from Late Marimadappa, but he failed to give their share.
Plaintiffs filed suit in O.S.No.369/1984 before the Principal I Munsiff, Mysore, seeking partition. That suit came to be decreed declaring that plaitnfifs are entiteldf or ½ share and ordered for partition by metes and bounds through judgment dated 22.7.1988. But mesne profits was rejected. The appeal filed in RFA No.110/88 was transferred to II Additional District Judge, Mysore in RA No.116/1990 which came to be dismissed on 21.9.1994 and judgment and decree passed in favour of the plaintiffs in OS No.369/1994 attained finality. 4. It is the further case of the plaintiffs Sannamma and Neelamma that they were dispossessed subsequent to preliminary decree dated 22.7.1988 and thus, they were deprived the possession and enjoyment of the properties and mesne profits is calculated at Rs.2,80,250/-.
5. After summons, defendants appeared and contested the suit and contended that plaintiffs are not entitled for mesne profits and they cannot claim the same and it is barred by resjudicata.
6. Learned trial Judge on the basis of the pleadings, contentions, oral evidence of PW1 and DW1 and documentary evidence of Exs.P1 to P7 and documentary evidence of PW 1 and DW1, dismissed the suit with costs by judgment dated 31.8.2005. The same is challenged by the plaintiffs in this appeal.
7. Learned counsel for plaintiffs/appellants Sri.
S.Nagaraja would submit that the defendants being in unlawful possession and enjoyment of the share of the plaintiffs have made profits through their unlawful possession and enjoyment and caused unlawful loss to the plaintiffs. Learned counsel would further submit that the defendants are bound to make good the loss caused to the plaintiffs. In simplicitor, the suit is for mesne profits. It is submitted that preliminary decree was followed by final decree in FDP No.40/1994 that ended in compromise on 29.10.1999. The present suit was filed on 22.6.1995. In this connection, the trial Court has observed that on the date of the preliminary decree dated 22.7.1988, the suit against defendants for mesne profits should have been filed separately within three years from 22.7.1988. But the present suit is filed on 22.6.1995 after the lapse of about 7 years and it is barred by limitation.
8. Learned counsel for defendants 1 to 3/ respondents 1 to 3 opposes the claim of the plaintiffs and submits that it is not tenable both in law and on facts.
9. The schedule properties stated to have been in joint possession and enjoyment of the plaintiffs and defendants are: Survey No.55/1 measuring 39 guntas; Survey No.55/2 measuring 1.01 guntas; Survey No.54/A measuring 1.00 acre and survey No.55/3 measuring 28 guntas. All are the agricultural lands totally 3 acres 28 guntas in which plaintiffs were allotted half share.
10. The substance of the claim of the appellants is that suit seeking mesne proper profit was dismissed in O.S No.369/1984. The plaintiffs claimed to be in joint possession of the schedule property and was dispossessed after preliminary decree. The present suit came to be filed subsequent to the judgment in the partition suit where the mesne profits was not allowed.
11. The date of preliminary decree i.e.
22.7.1988 is to be taken into consideration. The present suit was filed after the lapse of seven years and as such it is barred by law of limitation. It is also to be considered that in the original suit for partition, mesne profits was not ordered and it is not challenged by the plaintiffs. Thus, viewed from any angle, the same is not filed within the period of limitation. Regard being had to the fact that appeal preferred by the defendants against the judgment in OS No.369/1984 came to be rejected on merits. The plaintiffs neither have stated precise entitlement nor the details of property, the crops or profits that were yielded and their deprival to the plaintiff by the defendants.
12. Thus the suit of the plaintiffs is barred limitation. More importantly, they have not challenged the order of non granting of the mesne profits in the original side.
13. In the circumstances, I do not find merit in the appeal. Hence, the same is rejected. No costs.
Sd/- JUDGE Nvj/tsn*