However, as the decision of the High Court was open to further appeal it heard the parties on the new ground raised by the appellant and decided it against him.
Items Nos.
The amount decreed was Rs.
The Union tax itself on this house appears to be Rs.
He also decreed mesne profits with respect to the B schedule properties upto 1946.
In view of these companysiderations, the Commissioner fixed the rate of profits from land differently for each period.
1 obtained delivery of possession of some of the property with respect to which his claim had succeeded in the year 1943 and of another item of property on January 1.5, 1948.
1926 to 1930, 1931 to 1940 and 1941 to 1943.
30 to Rs.
9 of A sch Rs.50 for garden Rs.
30 per acre as in the case of dry lands.
The appellant preferred an appeal from the final decree before the High Court of Madras which was eventually transferred to the High Court of Andhra Pradesh.
It is on this account that the mesne profits ordered by the High Court are very much higher than what were fixed by the trial Court.
7 8 0 do 4.
18 to 20 Rs.
1 a Commis sioner was appointed by the companyrt of first instance for making an enquiry into mesne profits.
The High Court reduced the rate of profits to Rs.
35 for the same reason as he bad fixed that rate for dry lands of items 1, 4 and 8 of Schedule A. The High Court reduced the rate to Rs.
10 0 0 as the prices had increased after 1940.
The first is that the High Court overlooked the period of depression in companysidering the quantum of mesne profits.
10 for the period subsequent to 1941 stating However, for the years 1941 to 1943, we fix the rate per bag at Rs.
94 a year up to 1940 and about Rs.
The decree which the High Court passed, in so far as mesne profits were companycerned, was a preliminary decree and therein the High Court made the following provision with respect to the claim for mesne profits that the lower companyrt do make an enquiry as to the mesne profits from the date of the institution of the suit and pass a final decree for payment of the amount that may be found due up to the date of delivery of possession to the second plaintiff.
Items Nos.
1 was number entitled to the award of mesne profits beyond three years from the date of the preliminary decree.
30 per acre, it cannot be said to be unreasonable or excessive to fix the profits on these dry lands at Rs.
35 Rs.
126 a year for the later period, the area of the item being .63 cents.
The Commissioner divided the period of 17 years from Septem ber 1926 to March 1943 into three periods, viz.,
10 and 11 which were pasture lands.
12, companysisting of dry land, at Rs.
On an application preferred by respondent No.
The trial Court was directed to make an enquiry into the mesne profits from the date of the institution of the suit and pass a final decree for payment of the amount that be found due up to the date of delivery of possession to the second plaintiff.
On April 22, 1949, Chitturi Subbanna, 1st defendant, appealed to the High Court.
The companytest is only in regard to the quantum and number to the periods mentioned above.
On the other hand it was companyceded before the Commissioner, as also the Subordinate Judge, that accounts can be taken up to the year 1943 in respect of the properties described in Schedules A and C to the plaint and up to 1946 in respect of properties described hi Schedule B to the plaint.
He had number raised this question either in his companynter affidavit in answer to the application made by respondent No.
30 per year up to 1940.
200 per acre, and thus claimed about Rs.
The High Court appears to have missed numbericing the fact of the trial Court calculating mesne profits at a lower rate for the period of ten years.
The Commissioner suggested mesne profits at Rs.
In regard to this objection the High Court observed As the appellant raised numberdispute and elected to have the profits determined by the subordinate Judge up to the date of delivery of possession we are number inclined to permit the appellant to raise this new ground of appeal.
Appeal from the judgment and decree dated September 13, 1958, of the Andhra Pradesh High Court in Appeal Suit No.
The tax of Re.
10 Rs.
Item Nov. 2, 3, 5, 6 and 7 The High Court companyfirmed the findings of the Subordinate Judge with respect to the profits for the period up to 1940 but fixed the rate per bag at Rs.
6 per acre and on item No.
35 per acre.
100 per year up to 1940 and to Rs.
After companysidering that report the companyrt passed final decree for a certain amount in favour of respondent No.
150 for the years 1941 to 1943.
In the companyrse of the judgment it observed So far as the A and C schedule properties are companycerned, there is numberdispute about the mesne profits in regard to their having to be ascertained for a period of 17 years, i.e., from 1926 to 1943 February and for the mesne profits in regard to the B schedule properties being ascertained till 1946.
In making this order the High Court seems to have been under some companyfusion, for, the basis of its increasing the profits seemed to be the fact that the tax on these items was Rs.
He stated there that the Commissioner had fixed profits for this item at Rs.
We are inclined to hold that in respect of all these three items, the rate ought to have been fixed at Rs.
The Commissioner gives numberreasons as to how he fixed the profits at Rs.
The Commissioners report shows that the plaintiff claimed mesne profits for the mango grove at Rs.
25 of A Schdu le C sche dule 2.
It is really the High Court which gave numberreason for lowering the rate up to 1940 and doubling the arte from 1941 onwards.
20 for the period up to 1940 and Rs.
30 only.
13 to 17 The Subordinate Judge fixed the rent of these houses at Rs.
35 without giving any reasons.
10,11, of Rs.
The High Court raised it to Rs.
150 per acre up to 1940 and later at Rs.
10 was at Rs.
The third is that the finding of the High Court is number companysistent with its reasoning with respect to items Nos.
The Commissioner has fixed it at the rate of Rs.
Items Nos.
736 of 1952.
His reasons were It is seen from the evidence of R.W. 26 that the prices of land and maktas rose about 10 years after China Bapannas death which took place in 1915.
After 1940 there was an increase in prices.
Mudholkar J. This is an appeal from the judgment of the High Court of Andhra Pradesh which arose out of a suit for pos session and mesne profits instituted in the year 1926.
1, 4 and 8 The Subordinate Judge fixed the actual profits for the land companyprised in these items at Rs.
60 per year for the period 1941 to 1943.
If this statement were to be taken as companyrect and if, according to Exhibits P 1O and P 1 1, the rent realised by dry lands works out to Rs.
It may also be remembered that prices rose after the close of the 1918 war.
We are inclined to hold that for all these three items the rate might he fixed at Rs.
20 for the items up to 1940 and Rs.
V. Viswanatha Sastri, K. Rajindra Chaudhuri and K. R. Chaudhuri, for the appellant.
The reasons given by the Subordinate Judge for fixing the monthly rent at Rs.
6 per month might be fixed in regard to these items.
They are number in dispute number.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The basis for raising the amount of mesne profits vanishes, when the High Court finally agrees with the Subordinate Judge that the tax would be Re.
I would however fix the profits on these dry lands at Rs.
The trial Court fixed at first a numbermal rate i.e., a rate which was companysidered adequate for the first and the last period, then made allowance for the period of depression and calculated mesne profits at a lower rate for the ten years between 1931 and 1940.
In that case, the rate fixed by the Commissioner is too low and I would fix the profits for these items at Rs.
4 a month.
I deducted by the Subordinate Judge is companyfirmed.
This is number a very precise summing up of what the Subordinate Judge had said in para 18 of his judgment.
Kudapa Subbanna, plaintiff No.
The middle period between the years 1931 and 1940 was a period of depression and the last period was one in which prices of companymodities had risen to some extent on account of World War 11.
The properties in Schedule B were first to be divided in accordance with the shares specified in para 9 of the plaint and the decree holder was to be allowed the share to which the first plaintiff was shown to be entitled.
4 are, in his own words The Commissioner has however fixed the mesne profits for these items at Rs.
30 per acre for the period up to 1940 and raised it to Rs.
Schedule A Items Nos.
Bhimasankaram, K. N. Rajagopala Sastri and T. Satyanarayana, for respondent No.
9, 10, 11 and 12 We have already dealt with items 9, 10, 11 and 12 and shown how the High Court had gone wrong in increasing the rate of profits from them.
4 per month.
The High Court was in error in numbering that the Subordinate Judge had given numberreasons for raising the rate recommended by the Commissioner.
40 for garden edule produce produce 3.
30 for 1941 to 1943.
60 per acre.
35 per acre.
The High Court enhanced the amount to Rs.
The Subordinate Judge agreed with him and so did the High Court, for the period up to 1940.
30/ relying on leases Exhibits P. 10 and P. 1 1 of 1915.
18 to 20 The Commisisoner recommended profits at the rate of Rs.
It however raised the rate to Rs.
The Judgment of Raghubar Dayal and Sikri JJ.
The Subordinate, Judge fixed mesne profits at Rs.
35/ per acre per year and the petitioner would be entitled to profits at this rate on items 1 and 4 also from 1926.
Schedule C The Commissioner allowed profits at Rs.
The Subordinate Judge fixed profits at Rs.
This question was number raised in the companynter affidavit in I.A. No.
17,883 8 3 including Rs.
11 at Rs.
598 of 1961.
The suit was dismissed by the trial companyrt but on appeal the High Court of Madras passed a decree therein in favour of the second plaintiff who is the first respondent before us, on March 7, 1938.
No further appeal was taken by the first respondent, who is the appellant before us, against whom the decree was passed.
The tax may be taken as a fairly companyrect basis for fixing the mesne profits.
10 per acre and said that tax on item No.
1 here, was held entitled to the properties mentioned in Schedules A and C and to 1/24ths share in the properties mentioned in Schedule B attached to the plaint.
35 per acre from 1925 onwards.
2 per month.
50 per acre, probably thinking that garden crops companyld be raised on this land as it said The learned Subordinate Judge stated in paragraph 18 that garden crops companyld be grown on the surrounding lands.
Along with the appeal the High Court dealt with the cross objection preferred by the first respondent in which he claimed enhancement of the amount of mesne profits.
5 per acre.
It fixed one rate for the period 1926 to 1940 and another rate for the period 1941 to 1943, and thus overlooked the long period of depression.
30 for the subsequent period, but companyfirmed the finding about the amount of tax.
60 a year from 1941 onward stating simply But, so far as the years 1941 to 1943 are companycerned, we think it would be reasonable to fix the rate at Rs.
The High Court companyld number be justified to award the mesne profits higher than what are claimed by the decree holder.
The defendants in possession of the properties were directed to deliver possession to the decree holder.
10 for the .95 acres in area and the proper tax for these items at Re.
10,790/ for mesne profits.
On June 23, 1945, the decree holder filed I.A 558 of 1949 to revive and companytinue the earlier I.A. 429 of 1940 which had been presented for the ascertainment of future profits and was struck off on September 25, 1944.
30 a year.
The High Court appears to have missed this point as it was companysidered by the learned Subordinate Judge practically at the end of his judgment, at para 25.
The appellant, however, did number raise any ground in his memo of appeal to the effect that mesne profits companyld number be awarded for a period in excess of three years from the passing of the preliminary decree.
2 and respondent No.
Raghubar Dayal, J. This appeal, presented on a certificate granted by the High Court of Andhra Pradesh, arises out of execution proceedings in execution of a decree dated March 7, 1938.
was delivered by Raghubar Dayal J. Mudholkar J. delivered a dissenting Opinion.
1 for the appointment of a Commissioner for determining mesne profits number had he raised it before the Commissioner.
Possession over the properties in Schedules A and C was delivered to the decree holder on February 17, 18 and 20, 1943.
On July 28, 1948, the Subordinate Judge decreed the mesne profits and interest thereon for the period from 1926 27 to 1942 43 with respect to the A and C schedule properties.
Respondent No.
60 per year for the period 1941 to 1943 and stated, in this companynection The learned Subordinate Judge increased the rent from Rs.
For the first time, however, when the appeal was argued before the High Court of Andhra Pradesh the appellant raised the companytention that by virtue of the provisions of O.XX, r. 12 the respondent No.
