R.M. Kantawala, J. - (1.) THE erstwhile tenants have filed this appeal against an order passed by the learned Assistant Judge, Dhulia, awarding mesne -profits to the landlords, after a decree of eviction against the tenants was executed.
(2.) THE plaintiffs filed a suit on August 17, 1964, against the defendants for eviction on various grounds. In that suit, a decree for eviction against the defendants tenants was passed on February 28, 1966. The matter went further and came ultimately to the High Court. The High Court by its decree dated July 18, 1969, confirmed the decree for eviction that was passed by the trial Court. On August 15, 1969, possession of the suit premises was handed over to the landlords. On December 21, 1969, the landlords filed an application for fixation of mesne -profits claiming Rs. 200 per month from the date of institution of the suit till the date of handing over of possession on August 15, 1969. The trial Court accepted the contention of the landlords in toto and awarded mesne -profits at the rate of Rs. 200 per month, as demanded. In an appeal preferred by the tenants, the learned Assistant Judge, Dhulia, modified the order passed by the trial Court and directed mesne -profits to be given at the rate of Rs. 125 per month to be calculated from the date of the suit till the date of handing over of possession. It is against this order passed by the learned Assistant Judge that the present appeal is filed by the tenants and cross -objections are filed by the landlords.
(3.) MR . Abhyankar, on behalf of the tenants, submitted that since in the suit instituted by the landlords, mesne -profits were claimed at the rate of Rs. 34 per month, neither of the two Courts ought to have awarded by way of mesne -profits any amount in excess of Rs. 34 per month. In the alternative, he submitted that in case this Court is not inclined to accept the contention that the landlords are not entitled to mesne -profits in excess of Rs. 34 per month till the passing of the present decree by the trial Court, i. e. fill February 28, 1966, and thereafter, in that event he has not controverted the right of the landlords to recover mesne - profits from March 1, 1966, till the date of handing over of possession at the rate of Rs. 125 per month, as awarded by the appellate Court.;