- (1.)Balak Ram has filed this second appeal against the judgment and decree dated November 25, 1975, of the Additional District Judge, Sonepat, by which the decision of the trial Court was affirmed and the appellant's first appeal was dismissed.
(2.)It is not disputed that Nand Singh plaintiff-respondent had obtained a decree for possession of the land in dispute by pre-emption against the defendant-appellant Balak Ram on February 1, 1969. The pre-emption money was deposited by the plaintiff on February 19, 1969 and he, therefore, became entitled to get possession of the land on that day. The appellant failed to surrender possession till December 25, 1970. The plaintiff, therefore, filed a suit for recovery of Rs. 4500/- as mesne profits for the period from February 19, 1969 to December 26, 1970 for retaining possession of the land in dispute during this period illegally. While contesting the suit, the defendant appellant pleaded that the land in dispute was in possession of his tenants Puran and Gulzar Singh. It was denied that the plaintiff had taken possession of the land in dispute from him on December 26, 1970. He objected that the possession being of tenants they are necessary parties to the suit and that a claim for mesne profits by the plaintiff could not be entertained by a civil Court.
(3.)The trial Court held that the possession of the land in dispute was delivered to the plaintiff from the appellant on December 26, 1970 in execution of the pre-emption decree and as such the plaintiff was entitled to recover Rs. 2913.28 Paise as mesne profits from the appellant for having retained illegal possession of the land during the period from February 19, 1969 upto 26th December, 1976. Puran and Gulzar Singh, the alleged tenants, were not found to be necessary parties to the suit and it was held that the plaintiff's suit was triable in a civil Court. On these findings a decree for Rs. 2913.28 Paise with proportionate costs was passed in plaintiff's favour against the appellant. The lower appellate Court affirmed these findings and dismissed the first appeal of the appellant.