UMESH CHANDRA KARAN Vs. SHANIL KUMARI DEVI

JUDGEMENT

(1.) The present second appeal has been filed against the judgment dated 6-6-1989 passed in Misc. Appeal No. 14/1986/6/1988 by Sri Kripa Shambhu Sharan, 1st Additional District Judge, Madhmbani upholding the judgment dated 1 -2-1986 passed by Sri R. N. Singh, Munsif, Jhanjharpur in Title Suit No. 17/8 of 1966/72 by which he allowed the prayer of the decree-holder-respondents for grant of mesne profit at the rate of Rs. 200/- per annum with interest at the rate of 6 per cent per annum from the date of dispossession till the delivery of possession of the suit land.

(2.) The brief facts of the case are as follows : Respondent, Janardan Lal Das, filed Title Suit 17/1966/8/1972 in the Court of Munsif, Jhanjharpur for declaration of his title and recovery of possession in respect of 2 dhurs of land of survey plot Nos. 392 and 389, respectively, situated in village Simra under Madhubani Sub-Division. Another Title Suit No. 137/1965/7/1972 was filed by the father of appellant Nos. 1 and 2 in the Court of Munsif, Madhubani against the respondent for declaration of title and recovery of possession in respect of the land measuring 15 dhurs appertaining to plot No.39. Both the title suits were heard analogous and by a common judgment dated 29-3-1972, both the suits were disposed of by 2nd Additional Munsif, Madhubani. By the said judgment, Title Suit No. 17/1966 was decreed in part. Against the said judgment and decree, the defendant-appellant preferred appeals but lost the first appeal as well as second appeal. Further case is that after the judgment in Title Suit No. 17/1966 was pronounced the plaintiffs-respondents filed an application on 15-11-1972 under Section 152 of the Code of Civil Procedure for amendment in the said judgment and decree dated 2-3-72. On filing of the application, Miscellaneous Case No. 52 of 1972 was registered. By filing of the amendment petition the plaintiffs-respondents prayed for amendment in the judgment and decree for adding the relief of grant of mesne profit against the defendants-appellants. The application was heard by the learned Munsif, Jhanjharpur and the same was allowed by the learned Munsif by order dated 15-11-1972. Accordingly, judgment and decree passed in Title Suit No. 17 of 1966 was amended and the prayer for grant of mesne profit was allowed to be added in the judgment and decree. Thereafter the learned Munsif proceeded for assessment of quantum of mesne profit and thereafter on perusal of the materials on record, the learned Munsif. Jhanjharpur at Madhubani by his order dated 19-2-1986 determined the quantum of mesne profit and assessed the mesne profit at the rate of Rs. 200/- per annum with interest at the rate of 6 per cent per annum from the date of dispossession of the plaintiffs from the suit land till the delivery of possession to the decree-holder. Against the said judgment dated 19-2-1986 passed by the learned Munsif, Jhanjharpur, Misc. Appeal No. 14 of 1986 was preferred by defendant Umesh Chandra Karn (defendant of Title Suit No. 17/1966) which was finally disposed of on 6th June, 1919 by the 1st Additional District Judge, Madhubani, who dismissed the appeal. Against the said order of dismissal, the defendants-appellants have preferred this appeal.

(3.) At the time of admitting this appeal on 5-9-1990, the following substantial questions of law were formulated by this Court for decision which are as follows :