Whether the amount of mesne profits fixed by the lower court is legal and sustainable? Evidently, there is no perfect record to be produced by any party with regard to the expenses or the yield. The general cultivation pattern will be only taken into consideration. Both parties do not seriously dispute about the nature of the expenditure determined by the Commissioner or by the lower court. The only point is whether the lower court is justified in fixing the yield from 1976 to 1985 @ 20 bags per year when the Commissioner has found it only as 18 bags. Evidently, no fresh material is placed before the court to show that the determination of 18 bags by the learned Commissioner for the period 1976 to 1985 is erroneous and that there is more yield. Evidently, the lower court also did not accept the report of the Commissioner for the yield @ 22 bags per acre from 1986 to 1995 and it has confined only to 20 bags for that period. Therefore, it is quite clear that the lower court was also not inclined to accept the yield determined by the Commissioner. I feel that the yield fixed by the Commissioner from 1976 to 1985 @ 18 bags per acre appears to be reasonable and the enhancement granted by the learned Senior Civil Judge is not supported by any material.= Accordingly, the order of the lower court is modified and the claim of the Decree Holders for mesne profits is confined to a sum of Rs.1,00,000/-. The amount already paid by the Judgment Debtors shall be given credit and the balance amount shall be paid within three (3) months from this day, failing which, interest @ 6% per annum shall be paid after three (3) months.

AS 1785 / 2001

ASSR 45610 / 2001
PETITIONERRESPONDENT
G.SURYAKANTHAM & 4 OTHERS  VSV.SANJEEVARAO & 10 OTHERS
PET.ADV. : SUBBA REDDYRESP.ADV. : ANJANA DEVI, SATYANARAYANA
SUBJECT: TITLE SUITS (IMMOVABLE PROPERTY)DISTRICT:  EAST GODAVARI

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO
APPEAL SUIT NO.1785 OF 2001
JUDGMENT:
The appeal is filed against the order in I.A.No.372 of 1999 in O.S.No.136 of 1976 on the file of the court of Senior Civil Judge, Pithapuram, challenging the determination of the mesne profits in pursuance of the decree for partition.
The petitioners have filed the suit for partition and after the suit was decreed, the matter was carried till the stage of LPA, which was disposed off on 20-09-1995.  Subsequently, on 18-09-1998 an application for determination of the mesne profits was filed and thereafter a Commissioner was appointed and he has made a detailed enquiry and submitted a report. The Commissioner has recorded the evidence of parties and also perused the documents. Thereafter objections were filed by both the Decree-Holders and respondents. After considering the objections and the arguments of both sides, the learned Senior Civil Judge has fixed the yield of the land @ 20 bags per acre from 1976 to 1995 and also deducted the expenses and ultimately passed a decree for a sum of Rs.1,07,915/-. Aggrieved by the said order, the present appeal is filed.
The point that arises for consideration is:
Whether the amount of mesne profits fixed by the lower court is legal and sustainable?
POINT:-
Evidently, before the Commissioner both parties have adduced the evidence and documents were also marked. 
The learned Commissioner has also collected the particulars of the price of each bag of paddy during the period of determination. 
The learned Commissioner has given different yields for three different periods; for the period from 1976 to the period 1985, the learned Commissioner has fixed the yield @ 18 bags per acre for paddy crop; 2 ½ bags per acre for the second crop;
 for the years 1986 to 1990 and also for the year from 1991 to 1995, he has fixed the yield of paddy crop @ 22 bags. He has also determined the value of the second crop as 3 bags.  
He has also considered the evidence and determined the expenses which are incurred for the cultivation.  
Evidently, there is no perfect record to be produced by any party with regard to the expenses or the yield. The general cultivation pattern will be only taken into consideration. 
According to the counsel for the appellant, during the disputed years, there was no secured source of water and it was not a double crop wet land. 
Therefore, higher yield could not have been expected. 
The objection of the counsel for the appellants is that when the Commissioner has found that no sufficient evidence is available on record, the fixation of the yield continuously from 1976 to till 1995 @ 20 bags per year by the learned Senior Civil Judge is not correct and it causes hardship to the appellants.
On the other hand, the learned counsel for the respondents contends that no interest was granted by the learned Senior Civil Judge and average of the crops were taken into consideration and there is no infirmity in the order of the lower court.
Both parties do not seriously dispute about the nature of the expenditure determined by the Commissioner or by the lower court.  
The only point is whether the lower court is justified in fixing the yield from 1976 to 1985 @ 20 bags per year when the Commissioner has found it only as 18 bags. 
Evidently, no fresh material is placed before the court to show that the determination of 18 bags by the learned Commissioner for the period 1976 to 1985 is erroneous and that there is more yield.  
Evidently, the lower court also did not accept the report of the Commissioner for the yield @ 22 bags per acre from 1986 to 1995 and it has confined only to 20 bags for that period.  Therefore, it is quite clear that the lower court was also not inclined to accept the yield determined by the Commissioner. 
The fact that the land is a wet land with all potentialities cannot be disputed. 
The reason given by the Commissioner who has recorded the evidence and perused the record has to be given much credence, since he has taken much pain in assessing the evidence and arriving at the practical difficulties of both the parties in adducing the evidence. 
Therefore, taking into consideration the above facts, I feel that the yield fixed by the Commissioner from 1976 to 1985 @ 18 bags per acre appears to be reasonable and the enhancement granted by the learned Senior Civil Judge is not supported by any material.
Therefore, taking into the above facts and circumstances and keeping in view the calculation made by the court and also the Commissioner, I feel it will be just and reasonable to fix the quantum of mesne profits @ Rs.1,00,000/- (Rupees One Lakh only) payable by the Judgment Debtors.
Accordingly, the order of the lower court is modified and the claim of the Decree Holders for mesne profits is confined to a sum of Rs.1,00,000/-. The amount already paid by the Judgment Debtors shall be given credit and the balance amount shall be paid within three (3) months from this day, failing which, interest @ 6% per annum shall be paid after three (3) months.
With the above modification the Appeal Suit is allowed. Each party shall bear their own costs.
       
_______________________
N.R.L.NAGESWARA RAO,J
09-03-2011
TSNR

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