The High Court · 2025

Judgment

1. This memorandum of appeal is hled under Sc c ion 96 oi CPC assailing the order passed in I.A.No.23 of 2Ol7 trt O.S.No.l46 of 1999 dated 17 .O7 .2018 by XII Additional Scnior Cti,, 1 Judgc (FTC), City Civil Court at Secunderabad.

2. Appellant is the respondent - defendant anrl the petiLioner - plaintiff in I.A.No.23 of 2Ol7 it:. respondr:nt is ).S. NO. 1,16 of

3.1 Respondent - petitioner has filed I.A.No.!1 O.S.NO.146 of 1999 under Order XX Rule 12 rciLr of 2017 in with Scction 151 of CPC praying the Court to appoint an advocErrr commissioner to ascertain the quantum of rents prevailing in thr: 1 laint schcdule vicinity and pass such other order as the Court m,r deem fiL and proper. The schedule of the properry is grountl k;or prelnises bearing plot No.68 admeasuring plinth arca of f ,i building known as 'Marliz' situated at Paiga C - 0 sq.ft, in a ciny SP road Secunderabad, with specific boundaries.

3.2 It is stated in the affidavit in I.A.No.23 ot 017 that the learned III Senior Civil Judge, City Civil Court Secr- rderabad was ! BRMR' J CCCA.No.12 of20l9 pleased to decreed the suit in O.S.No.146 of 1999 on 06.06.2005 and had directed the appellant - respondent - defendant to vacate and hand over the plaint schedule property and further held that the respondent - petitioner plaintiff is at liber[r to file a separate petition under Order XX Rule 12 of CPC for ascertaining the mesne prohts. Appellant - respondent - defcndant has preferred an appeal against the judgmer-rt and decree in O.S.NO.146 of 1999 dated

06.06.2005 uide A.S,No- 128 of 2OO5, which came to be dismissed on 28.O8.2009 by the learned I Additional Chief Judge, City Civil Court, Hyderabad.

3.3 In paragraph No.19 of the judgment in A.S.NO.128 of 2005, the appellate Court opined that the respondent - petitioner -

plaintiff is at liberty to hle a separate petition for ascertainment of mesne prohts. Appeilant - respondent defendant handed over the keys of the plaint schedule propertSz to the respondent - petitioner - plaintiff on 30.1 1.2009. Plainl schedule property is srtuated at SP road, Secunderabad, which is located in the heart of the commercial locality and would easily letch rent of Rs.35O/ - per day. The appellant - respondent - defendant has to pay mesne profits from O1.O4.1999 till 30.11.2OO9 for 3897 days and prayed to appoint an advocate commissioner to ascertain the quantum of rents prevailing in the vicinity of the plaint schedule property. I I I : -7 3124 BRMR, J CCCA.No. i2 of2019

4. Appellant - respondent defendant has fi1eci 1 contended that the appeal hled by him wa s is counter and <lismissed on 28-Oa.2OO9 conhrming the trial Court judgment d::t :d 06.06.20O5, thereafter he vacated the plaint schedule propcrty i. 11 handed over the keys Io lhe respondenl peritioncr - plainrilf i Lhout allowing hirn to file EP rvhich shou,s his intension as rega r: s I'ris landlord- I.A.No.23 of 2Ol7 is hled claiming Lhat an opportur. v w'as given to the respondent - petitioner - plaintiff to h1e an aLlr lication under Order XX Rule 12 of CPC is not true and th r respondent - petitioner - plaintiff cannot claim any mesne profir:, :vcn otheru,ise alternatively. The claim is too high, not cornpj -able and not re[ainable to any particular premises of that area v irh that of the facilities that were given. The claim of the resl rndent is too dismiss the application.

5. Respondent - petitioner - plaintiff is examinr: examined PW2 - Rahemjigar Ali and got marked E{ L as PWi, also P1 bunch of receipts (11 Nos). Appellant - respondent - defentlrr as RWl and got marked Exs.Rl to R9- rt is examined

6. The learned Trial Court after going througl [he evidence adduced by the parties and the documents therec -r has allowed I.A.No.23 of 2Ol7 uide order dated 17.O7.2018 qurr ttilying mesne BRMR, J CCCA.No t2 of 2019 profits at the rate of Rs. 10,500/- per month from April, 1999 onwards with periodic enhancement for cvery two years at the rale of Rs.2,OOO/-, which is impugned in the present appeal.

7.1 Learned counsel for the appellant submits that the learned Judge has not properly appreciated thc facts of the case in proper perspective and erred in allowing the application filed by the respondent - petitioner - plaintiff, did not examine the contents of the affidavit filed in support of the relief claimed and the relief sought in the petition is to appoint an advocate commissioner to ascertain the quantum of rents prevailing in the vicinity of the suit schedule property. The learned Judge did not consider the proposition of law as cited across the bar and therefore entire findings are perverse, illegal and contrary to the record.

7.2 Learned Judge ought to have seen that the appellant - respondent - defendant has brought Exs.R1 to R9 to substantiate the case which has not been appreciated. I-earned Judge did not give sound reasons in granting the relief and the quantifying the mesne prolits is not based on evidence in as much as the afhdavit pleaded only states that the property can fetch Rs.350/- per day. l,earned Judge without any pleading, without any prayer ard without any evidence, gave an escalation or enhancement of Rs.2,OOO/- for every two years is based on no evidence. Counsel to s l24 I]RMR, J (lCC{.No.I2 of 2019 substantiate his contentions has relied on the d< :isions in the cases of (i) Trojan and Company Vs. RM.N.N.NagaJ 1 a Chcttiarr (ii) Akella Lalitha Vs. Konda Hanumantha Rao anrl Another2 [iii) Bhatharaju Shankaraiah, Hlderabad and Others /s. Secretarl,, Ministry o[ Road Transport and Highways, Delh i r {iv) San,rnclcr Singh ar-rcl artother Vs. Viput Tandona and (v) R:. 'nakka Vs. V. Nagesams.

8. Learned counsel for the respondent - petiti( rer plaintiff submits that the mesne prohts awarded by the Tr i I C()urt at the rate of Rs.10,5OO/- is to be modified to Rs. 12,0007 x:r rnonth and also contended that the filing of petition to ascerl in Lhe nresne prohts is not a requirement in lau,but a mere ret rainder to the Trial Court and the learned Trial Court has taken 1,r iicial notice of the fact that the petition schedule property is situzrrr :1 in the prime locality of SP road Secunderabad. The Hyper te<:lr ricerJ objection takcn by the appellant - respondent - defendant for t -re first time is without any pleadings and contrary to 1aw. In s -.rpport of his contentions he relied on the decisions in the casc ; of (i) Ivlohd. i Abdul Qasim and Others Vs. District Collector, Varlrngal and ) 3 (19s3) l SCC .156 2022 SCC Onl,ine SC 928 202.+ SCC Onl.rne 'l S .1 120 CSiOS) 2453/2015 & IA.l687ll2015, lligh Courtof Delhi at New Delhi, d1r' otl.07 2025 AIR 1925 MAD I45 BRMR. J CCCA.No.12 of 2019 others6, (ii) G.Subrahmanyam (died) by LRs. Vs. G.Leela and othersT, (iii) Gopalakrishna Pitlai and Others Vs. Meenakshi Ayal and Others8, (iv) Reddi China Sattemma Vs. H.Suryanarayana (died) by L.Rse, (v) Rattan Arya and Others Vs. State of Tamil Nadu and anotherro, (vi) Saradamani Kandappan Vs. S.Rajalakshmi and Othersl 1, (vii) Ahmedsaheb (dead) by LRs and others Vs. Sayed Ismaill2, (viii) Magunta Kota Reddy (died) and others Vs. Pothula Chendrasekhara Reddyr3, (ix) Karaka Varaqhalamma and another Vs. Velagala Simhachalam and othersla (x) Hindustan Petroleum Corporation Limited Vs. Mohanjit Singh (Deceased) through legal heirsls.

9. Learned counsel for the respondent - pctitioner plaintiff has hled his written arguments. 1O. Heard learned counsel on record and perused the material.

11. Now the points for consideration are: i) Whether the learned Trial Court without appointing an advocate commissioner to ascertain the quantf pf rents t I.a.No. t of ZO t8 and A.S.No. I45 of 1994, High Court for the State of Telangana, Hyderabad, dated

20.o7.2014 'xlll sc onLmeAP4ll = 2011 \61 ALD 223 ' 196E Scc orrl-ir," sc 224 = AtR 1967 SC 155 e 1983 supreme (AP)498 1teso1 s scc aas " 1zott1 tz scc ra " 1zoru1 s scc sro " 1961 SCC Onlir,. AP 126 = AIR tg63 AP 42 'r 2010 SCC Onl.mc AP 225 = 2O1O l3l ALD 723 " zotg scc O.'Lio. Del galg = (2019) 263 D::l 192 ,.7 -- q j i I BRMR. .] CC(IA.No lJ of2019 prevailing in rcspect to the suit schedule r. 'operty can go ahead to disposc of the application basing on he evidence. ii) whether the rcspondent - petitioner - plainti I is entitled for modification ol the order passed by the learn : I Trial Court in I.A,No.23 of 2Ol7 in O.S.No.146 of 1999, rl r cd 17.07.2018 in absence of any appeal to that effect. iii) Whether thc order passed b-v the learned lrial Court tn I.A.No.23 of '2017 in O.S.No. 146 of 1999 r1:r ed 17.O7 .20t8 suffers lrom any perversit5z or illegality, if so, kres it requires interferencc of this Court.

12. It is apt to refer Order XX Rule 12 of CPC, ,,hich reads as under:

12.Decree for possession and mense prohts:- (1) Wber,: the recovery of possession of immovable property anC mesne profits, the Court may pass a decree- l suil is for Ibr rent or {a) for the possession of the property; (b) for the rents rr,hich have accrued on the properl, period prior to thc institution of th suit or directing an I such rent; (ba) for the mensc profits or directing an inquiry as t( prohts; (c) directing an rnquiry as to rent or mesne prolit institution of the suit until,- (i)the delivery of possession to the decree-holder, {ii) the relinquishrnent of possession by the judgmenl notice to the decree - holder through the Court, or <luring the rquin, as to rttch mesnc i from the Cebtor with BRMR, J CCCA No.I2 of 2019 (iii) the expiration of three years from the date of the decree, whichever event hrst occurs (2) Where an enquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance *,ith the result of such inquiry-

13. The admitted facts of the case are that the schedule property was lel out on 02.03.1998 and the quantum of rent hxed is at lhe rate of Rs.8,000/- per month and the appellant - respondent defendant has vacated the premises on 30.11.2OO9. Suit schedule property is at Paigah colony, SP road, Secunderabad and the extent is 1510 sq.fts.

14. i Admittedly suit (O.S.No. 146 of 1999) is ltled by the respondent - petitioner plaintiff for eviction and mesne prohts.

14.2 Tlne learned Trial Court in O.S.No. 146 of 1999 has framed issue No.3 i.e., whether the plaintiff is entitled to the mesne profits claimed in the suit?

14.3 Eviction is ordered by the learned Trial Court in O.S.No.146 of 1999 ulde judgment and decree dated O6.06.2005 and in respect of mesne profits the observation of the learned lrial Court is as under: "lssue No.3: The subject matter of the suit is with regard to the prevailing market rate of rent in the suit locality. It is stated by the plaintiff that the suit schedule property is situated in the heart of the business area at Secunderabad and can easily fetch a ym of 9124 BRMR. J CCCA.No.12 of 2019 Rs.350/- per day and as such the plaintiff is entitl(( prolits @ Rs. 35O/- per day ever since from 1.4-99. The contention put forward on behalf of the defendan . the termination notice Ex.Al is valid and binding :rnrl deemed to have void by the plaintiff because he accep_r liom 1.4.99 rvithout anlr protest and therefore, the actiol ol the plaintiff in receiving the rents directly establishe; l1o proper termination or the termination was not acted _l rhe plaintiff. For the reasons already discussed in previ,r rnust be held that the rental agreement Ex.A4 .;l terminated by virtue of termination notice Ex.A i. and 1 onrvards, defendant was tenant holding over, liable to tr for the use and occupation, or mesne prohts, to tl)c ejectment. Except the sole evidence of the plaintifl, evidence placed to establish that the area would easily f(t Rs 350/- per day. In the absence of any convincing ar< evidence on this aspect at this stage, the court canrl()1 mesne profits entitted by the plaintiff from the defendarLt and occupation from 1 .4.99. Therefore, the plaintiff is at I a separate petition under Order 20 Rule 12 CPC for rnesne profits." for rlesne s that even ir must be C thc rents on the part as there is xln even bv s issues, it rod validly om 1.4.99 , tv damages trlaintiff till here is no :h a sum of acceptable decide the for his use berty to file scertaining

14.4 Appellate Court in A.S.No. 128 of 2005 has also granted liberty to the plaintiff (respondent herein) to hle an rppiication for determining mesne profi ts.

15. The mesne profits quantified by the trial Cotir I in I.A.NO.23 of 2077 dated 17 .O7 .2018 is as under:

1. That the petition of the petitioner be and the same is hr:: :by allowed 2. Th^aI the quantifying mesne profits @ Rs. 10,500/ per month from the month of April 1999 on wards till November 2C ( 9 with periodic enhancement for every two years @ Rs.2,0O0/- as folltrv : to /24 BRMR, J CCCA.No l2 of 2019 From April, 1999 till March, 2001 From April, 2001 till March, 2003 From April, 2OO3 till March, 2005 From April, 2OO5 till March, 2007 From April, 2OO7 titl March, 2009 Rs.1O,500/- p.m Rs. 12,500/ p.m Rs.14,5O0/ p.m Rs. 16,500/ - p.m Rs.18,500/ p.m From Aprit, 2OO9 till November 20O9 Rs.20,500/ - p.m

16. Ex.A4 is the lease agreement dated 02.03.1998 marked in O.S.No.146 of 1999. ln respect of enhancement of rent of the leased property, condition No. 18 is as under: "18. The LESSEE also agrees to an increment in the Rent and Hire charges at the rate of 1O7o (Ten percent only) on the total rent amount at cvery lease renewal of ELEVEN months"

17.1 The evidence of PW1 (respondent-petitioner-plaintiff) is that he is claiming mesne proflts at the rate of Rs.35O/- per day commencing from O 1.04.1999 till 30.1 1.2OO9 i.e., for 3987 days amounting Rs.13,95,450/- and the area under occupation of the appellant herein - respondent - defendant was 1510 sq.ft at Paigah Colony, Secunderabad. 17 .2 ln his cross examination he stated that after disposal of the appeal, appellant - respondent - defendant handed over the keys on 30. 1 1.20O9 and further he has not hled any document to show that the petition schedule property fetches Rs.350/- per day from the year 199O. Building was constructed in the year 1984 and apart from the appellant - respondent - defendant there rvpre two :, l :l z, t i t 3 I t I I BRMR, J CCCA.No.12 oI20l9 more tenants. One portion of the building is vaczr. rt on the first floor and the ground floor is occupied by another t: rant and he is paying Rs.21,000/ per month. He has not specif i,: Llly mentioned in Ex.A 1 - legal notice d:rted 19.03.1999 that respondent-defendant is liable to pay Rs.350/l pe .he appellant - day torvards mesne prohts. By the date of vacating the sc] L, dule property appellant respondent defendant rvas payrng rr rnthly rent of Rs.8,00O/ .

17.3 He further stated in his cross examination r-l at appellant - respondent defendant used to run courier offi, e in the suit schedule premises and also mentioned about the llo rds in the year 2O00. Schedule property was provided with c[ inking water, borewell, toilets and parking place and the buildinp s in the vicinity are old. His building consists of one side nalla, two ;ides road and other side is of the neighbours. Other tenants resi: ng other than the appellant respondent - defendant in the suit schedule premises were paying Rs.700/- per day, another t: rant is paying Rs.500/- per day for half space in the building zt Ld he has not enquired with other Lenants of neighbouring buildirLl s. PW1 denied the suggestion that the rent paid by the appellant respondent - defendant at the rate of Rs.8,0O0/- per month c n the date of vacating the portion is reasonable and fair rent and , lso denied the BRMR, .J CCCA.No.12 of 20I9 suggestion that the claim made by him is unreasonable, unjust and not in consonance with the prevailing rents.

18.1 PW2-Raheem Jigar Ali deposed that he is doing bakery business at plot No.68, Paigah colony, SP road, Secunderabad, the area under his occupalion is 1510 sq.ft. and he is paying rent o[ Rs.22,050/- exclusive of electricity and water charges TDS is deducted upon the rent paid, he has receipts showing thc payments of rents to the landlords and his business is assessed to CST, APGST uid.e Pin No.28155098186 approximately rent per sq'it is Rs.20/- to 251- in the vicinity of petition schedule premises and got marked Ex.Pl(bunch of receipts 1 1 in number)'

18.2 ln his cross examination he stated that there is no registered lease agreement between him and his landlord' Witness adds that there is an unregistered lease agreement between him and his Iandlord, he has record to show that the rent is Rs'22,05O/ - per month and he is paying rents to landlord through cheques' PW2 denied the suggestion that he is not a tenant of the respondent - petitioner - plaintiff, he is not paying such rents and giving false evidence. He also denied the suggestion that rent per sq ft is only Rs.5/- in the vicinity of the suit schedule property'

19. Ex.Pl are the bunch of receipts marked through PW2 which the payments made to the respondent - petitioner - ply'ntiff ,,. i 1 ! 3 i : I l :i : rI I )}RMR, .-I CCCA.No.l2 of 2019 by United Bakcrs for tl're months of April 2Ol2 tct I ecember 20 12 through chequcs, the amount shou'n is Rs.21,OC( / The rental receipts for thc month of January 2O13 to April :2r) .3 is also paid through cheques b1' PW2 and the rent sh.t r 'n therein is Rs. I(),845/ -

20. The evidence ol the appellant - respondent defendant as RW 1 is the rcplica of his counter. In his cross ( xamination he stated that :rfter vacating the premises one Unit :d Bakers has taker-r the same on Iease and he did not bothered lr, rerify the rents paid. He verifiecl plot No-23 where the prevailing rc.r - in the ground floor is Rs.12,0OO/ for 16O0 sq.ft and he did not ll t an1. document to substantiate the same. He verified hrst floor of tll : said premises and one portion is given on rent for Rs.6,OOO/-, ht: cannot say the area in occupation of the said premises and the apll :al preferred by him against thc eviction order was dismissed. He I r s not preferred any appeal against the observations made for at certainment of mesne profits in the appeal and he is not alr'ar< of the receipts issued by PWl frespondent - petitioner plaintiff -rnder Ex.Pl to the present lenant (PW2). He is not aware that tl} : suit premises locality is fetching rent in between Rs.3OO/- to Rr; 350/- per sq.ft and the area under the occupation was 15OO sq.ft. {e has not filed any document to show that the rent paid by him i in accordance with t\e prevailing rents in the area of the premrse : . He denred lhe j I I t I ! ! I I I I I t4 /24 BRMR' J CCCA No.I2 of 2019 suggestion that Exs.R1 to R9 do not bear for ascertaining the mesne profits.

21.1 trx.R1 is the letter daLed 24.08.2000 addressed to the Station House Off-rcer, Begumpet Police Station, Begumpe[ with regard to damages to properties and stocks due to flood and requested to register the complaint of losses and take up necessary official initiatives to extend support.

21.2 Ex.R2 is another letter dated 13.09.2000 addressed by the appellant respondent defendant to the Mandal Revenue Officer, Secunderabad Region, Secunderabad and requested to extend cooperation by giving a certif,rcate to enable him to show to his customers and other authorities concerned due to recent healy rains and floods.

21.3 trx.R3 is the certificate issued by MRO Secunderabad dated

27.O9.2OOO stating that M/s. Professional Couriers Rasooipura is effected and inundated due to heary rains and floods from

23.08.2000 to 24.08.2000.

21.4 Ex.R4 is the certificate issued by Inspector of Police, Begumpet PS dated 15.09.2000, which states that in the recent floods, the localities in Begumpet PS limits including Paigah colony area was inundated with flood u,ater artd camsed heavy pamages to the public property : E I I I t5/24

21.5 Exs.RS and R7 are the notices got issued by t respondent - defendant to the respondent - petittc dated 16.09.2O2O for repairing thc premises in vierv r I]RMR, J CCC,{.No.12 of 2019 1e appellant - ner plaintifl f the damages caused due to floods. trx.R6 is the cheque for Rs-8, )00,i - tou,ards rent for the month of September 20O0. Ex.RS is the postal receipt and Ex,R9 is the postal acknowledgeme nt card.

22. Respondent - petitioner plaintiff in pursueuL, in I.A.No.23 of 2Ol7 dated 17.O7.2018 valued the r I e o1' the order :sne prohts at Rs. 1O,4O,OOO I - and accordingly Court fee of Rs. I 12 826l- is paid uide challan No.62O70 dated i4.O8.2018 for prr:1r Lration of the hnal decree. POINT NO.1:

23. Respondent - petitioner - plaintiff has also J rayed to pass such other order/ orders as Lhe Court deems fit i nd proper in I.A.No.23 of 2077 .

24.1 lt is well settled that the decision of a case c I rnot be based on grounds outside the pleadings of the parties anc rt is the case pleaded that has to be found. Without an amendme : - of the plaint, the court was not entitled to grant the relief not asl ed lbr and no prayer was ever made to amend the plaint so as to ir :orporate in it an alternative case (See: Trojan'). BRMR, J CCCA.No.12 of 2019

24.2 lt is settled law that relief not found on pleadings should not be granted (See: Akella Lalitha'?), which is foilowed in Bhatharaju Shankaraiah3.

25. The learned trial Court observed in paragraph No.S of its order that At the stage of enquiry, petitioner plaintiff [respondent herein] did not get commissioner report conducting local enquiry, but has led evidence as PW1 and examined PW2 respectively' PW2 was summoned by the Court. The appellant - respondent - defendant was examined as RW1". The learned Trial Court thought it ht to dispose of the application for mesne prof-tts basing on the evidence of PW1, PW2 with that of the evidence of RW1 coupled with of Exs.Pl, Rl to R9 instead of appointing an advocate commissioner and fixed the quantum of mesne profits by exercising its discretion.

26. The decisions cited by the learned counsel for the appellant as stated supra in paragraph Nos.24 1 and 24'2 are distinguishable from the facts of the present case and thus the ratio of those cases would not apply in the present case in view of the fact that the Trial Court has passed orders basing on the evidence adduced by the parties and has invoked other part of the prayer of the petition i.e., pass such other order or ordersTas the .I 4 n*t I 17 124 }]RMR, J CCCA.No.12 of 2019 ! Hon,ble Court deems fit and proper" by exercisin 3 its discretion Hence point No-1 ls answered against the appeilant. POINT NO.2:

27. karned counsel for the respondent submiL:; that the order passed by the learned Trial Court can be modified r, ,d cnhance thc mesne profits to Rs.12,0OO/- instead of Rs. 1O,500/ 2a. In Mohd. Abdul Qasim6 the submission r f t1-rc learned Advocate General appearing for the respondent tll :rein is that i t was not possible for the State to file an appeal agair st a finding on one of the issues and appeal lies only against a i ecree' but not agalnst a {inding and Order XLI Rule 33 CPC enablt s the Appellate Court to decide any question between the parties. 29 . The Appellate Court should have the fulic s L power to do complete justice between the parties under Order {LI Rule 33 of CPC. The rule postulates that the Appellate Court 11 ls the power to pass a decree, and make an order which ought to have been passed or made as the case may require, even if , Le parties have not filed any appeal or objection. Appellate Cot rt can always consider the subsequent events as to facts and lau rnd grant relief_ ISee: G. Subrahmanyam']. ).4124 BRMR, J CCCA.No.12 of 2O19

30. It rs the case of the respondent - petitioner - plaintiff in the plaint itself that the schedule property would easily fetch a sum of Rs.35O/ - per day and he is entitled to claim the same from

01.04.1999. The learned Trial Court has taken Rs 35O/- per day and calculated for 3O days and arrived at Rs.iO,500/- per month as rent. The admitted rent as on the date of commencement of the Iease [O1.05.1998] is Rs.8,OOO/ . Though the Trial Court has quantihed the mesne prohts at the rate of one and half times of admitted rent i.e., Rs.S,ooo/ + Rs 4,000/ = Rs' 12,00o/-, exercised its discretion and arrived at an amount of Rs. 10,5OO/- per month.

31. Though PW2 deposed that he is paying rent of Rs.22,05O/- per month but his chief examination is silent when he has occupied the property on lease but the rental receipts are pertaining to 2Ol2 and 2013 [Ex.Pl - bunch of receipts 11 in number] and admittedty the appellant - respondent - defendant has vacated the premises on 30.11.2O09 but whereas the rental receipts under Ex.P1 are from 2Ol2 and 2013.

32. The learned Trial Court has fixed the mesne prohts at the . rate of 350/- per day as stated in the plaint for 3O days and arrived it Rs.fO,SOO /-, r\ghily exercised its discretion and reasonably enhanced the mesne proltts amount for every two years.afhe rate ! 19124 BRMR, J CCCIA.No.12 of 20I9 of Rs.2,OOO/ as the appellant - respondent - <ltr :ndant r,r,as in unlawful possession of the suit property.

33. This Court is of the view that the responde.r - petitioner - plaintiff is not entrtled lor modification of the orrlt:' in vieu' of thc reasons above as the learned Trial Court has propt r r/ exercised iLs d iscretion in hxing the mesne profits. Hence pornt No.2 is ansu'ered against the respondent - petitioner plair :iff. POINT NO.3

34. Now I have to see rvhether the learned Trial C:r urt has passed a reasoned order in quantifying the mesne prolt, based on the evidcnce adduced by the parties.

35. Mere guess rvork cannot be used for ascer r ining the rent- This Court cannot make a guess work in thin I r. Guess work cannot take the form of evidence. Coming to a figr- re which might be the rent of the area on its own without any rraterial is not permissible in law. Thus, in the absence of any 'vidence, oral or documentary, this Court is not in a posit on to calculale either at:ry mesne prohts (See: Sarvinder Singh").

36. In a suit for mesne profits the burden is ahvvs held to be on the plaintiff to prove the amount (See: Ramakka5) BRMR, J CCCA.No.12 of 20 19

37. The plaintiff has no cause of action on the date of the institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay court - fees [hereon at the time of the institution of the suit [See: Gopalakrishna Pillai8].

38. "It is thus well settled posiLion of law that when a preliminary decree has been passed and a direction therein has been given to ascertain mesne prol'its, it is not incumbent for the decree holder to file an application to ascertain mesne prohts. When he files an application, it is only a reminder to the Court to take steps to pass hnal decree and ascertainment of mesne profits is one such step in that direction.' (See: Reddy China Sattemma'g). and followed in Karaka Varaqhalammalo.

39. We are entitled to take judicial notice of the enormous multifold increase of rents through-out thc country, particularly in urban areas. It is common knowledge today that the accommodation which one could have possibly got for Rs.400 per month in 1973 will today cost at least five times more.....' (See: Rattan Arya1o (3 Judge Bench))

40.1 The third quarter of the twentieth century saw a very slow but steady increase in prices. But a drastic change occurred from .the beginning of the last quarter of the twentieth century. There has been a galloping inflation and prices of immovable proyerties ./ 2t 121 I]RMR.] CCCA.No.12 of 2019 have increased steeply, by leaps and bounds. Mz rket values of properties are no longer stable or steady. we r::.: take judicial notice of Lhe comparative purchase power of a ru1 :e in the year 1975 and no\r', as also the steep increase in rlr value c,f the immovnble propcrl ies l'letwccn thcrr and now. It is r r exaggerzrtion to say that properties in cities, worth a lakh or so it or about 1975 to 1980, may cost a crore or more now. 4O.2 This Court held that the said process of detcrr rination under the Act, u,hich u,as reasonable when the law u'as lade, became arbitrary and unreasonable in vien. of constant esc l ation ol prices due to inflation and corresponding rise (sic fali) r money value with the passage of time." [See: Saradamani Kandzrl)' ,an"].

41. lt is needless to emphasise that admission cf a party in thc procccdings either in the pleadings or oral is the bes i evidence and the same does not need any further corr(,l oration ISec: Ahmedsaheb"l.

42. The plainriff in this case had no special me? rs of knou,ing the exact income from the lands during the relevan t period and he was, therefore, not estopped from claiming a largr:r ium as mesne profits than r.vhat was claimed in his plaint [See: Magunta Kota Redd1,1r;. 22124 BRMR, J CCCA.No- 12 of2019

43. Courts are entitied to take judicial notice of the prevalent market rents while awarding mesne profits even s.here documenlary evidence is not lead and that the calculation of mcsne prolits involves some amount of guess work [See: Hindustan PeLroleum Corporation Ltd15].

44.1 ln Reddi China Sattemmae and Karaka Varaqhalamma'o it is held that it is not incumbent for the decree holder to file an application to ascertain mesne prohts, when he files an application it is only a remainder to the Court to take steps to pass final decree and ascertainment of mesne prohts is one such step in that direction. The learned Trial Court thought it fit to dispose of the application for mesne profits basing on the evidence instead of appointing an advocate commissioner to ascertain the mesne profits.

44.2. ^lhe learned Trial Court has taken judicial notice while hxing the quantum of mesne prohts prevailing in the vicinity of S.P.Road, Secunderabad. The decisions cited by the learned counsel for the respondent in Rattan Arya'o, Saradamani Kandappanll, Hindustan Petroleum Corporation Limitedls, are applicable to the case on hand. 4+3. I have gone through the decision cited by the learned counsel for the appellant in Sarvinder Singho, I hnd that they are 23124 BRMR, J CCCA No.12 of 2019 distinguishable from the facts of the present cas: and thus the ratio of the case would not appiy in the present case Respondent - petitioner has discharged his burden while ascerta r ing the mesne profits.

45. This Court rs of the vieu, that the Iearned I -ral Court has rightly passed the order basing on the evidence r lduced by the parties instcad o[ appointing an advocate corr rissioner. The learned Trial Court has rightly taken into consid,r ation that the periodic enhancement ol the mesne profits for e",r'r the rate of Rs.2,OOO/- appears to be reasonable rr y' two 1'sa15 ^1 r the schedule properry is irr prime localitv of Paigh Coic r ]', SP Road, Secunderabad.

46. The respondent - petitioner - plaintiff hz,r execution petition uide tr.P.No.4 of 2018 in the m: already filed rth of October 2018 after passing of the order in I.A.No.23 of 2O7l in O.S.No.146 of 1999 dated 17.O7.2O18 for issuing warrant cf arrest and detention of the appellant - respondent - defendar.t in civil prison for non payment of balance of Rs.8,50,O0O/ -.

47. Appellant respondent - defendant has no, case to interfere g,ith the orders passed by the lealr made out any ed Triai Court in I.A.No.23 of 2Ol7 in O.S.No.146 of 7999 dated I l .o7.2Ot8. / BRMR, J CCCA.No. l2 of 2019

48. This Court is of the view that the reasoning of the learned Trial Court is based on the evidence adduced by the parties and the enhancement of Rs.2,00O I for every two years is reasonable. In view of the reasons above, there are no merits in the appeal and the same is liable to be dismissed and is accordingiy dismissed.

49. Appeal is dismissed without costs. Interim orders granted if any shall stand vacated. Mlscellaneous application/ s stands closed. //TRUE COPY/i SD/.P.GOWRI SHANKAR DEPUTY REGISTRAR 6 SECTION OFFICER To,

1. The Xll Additional Senior Civil Judge (FTC), City Civil Court, Secunderabad (With Records if any) 2 One CC to SRl. D MADHAVA RAO Advocate [OPUC] 3. One CC to SRl. ZEESHAN ADNAN MAHMOOD Advocate [OPUC] 4. Two CD Copies At-,-,. ASR,/PSL HIGH COURT DATED:2411112025 JUDGMENT GCCA.No.12 of 2019 ( on 1t't lS,'4 o C) 0:i lN 7[?$ z. * 11 'r, DISMISSING THI APPEAL \1/ $ 12 I IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD MONDAY, THE TWENW FOURTH DAY OF NOVEMBER TWO THOUSAND AND TWENW FIVE PRESENT THE HONOURABLE JUSTICE B.R.MADHUSUDHAN RAO CITY CIVIL COURT APPEAL NO: 12 OF 2019 Between' THOMAS JOHN, S/o M.J. John, Aged about 38 years, Occ- Business, R/o 1 19, Sarasawathinagar, Lothkunta, Secunderabad. AND PETER DIAS, S/o Anthony Dias, Aged about 53 years, Occ- Business' Fl/o 305, Karan Centre, S.D. Road, Secunderabad. APPELLANT RESPONDENT Appeal filed under Section 96 of C.P.C., aggrieved by the orders passed on

17.07.2018in lA No. 23 ol 2017 in O.S. No. 146 of 1999 on the file of the Learned Xll Additional. Senior Civil Judge (FTC), City Civil Court at Secunderabad. ORDER: This appeal coming on for hearing and upon perusing thc grounds ofappeal, the Judgment and Decree of the Lower court and the material papers in the Petition and upon hearing the arguments of Sri D. Madhava Rao, Advocate for the appellant and of Sri Zeeshan Adnan Mahamood, Advocate for the Respondent. That this Court doth Order and Decree as follows: l. That this irppeal is be and hereby dismissed. 2. Save as aforesaid, the decree ofthe lower court is confirmed in all respects; 3. That there shall be no order as to costs. i/TRUE COPYI\ SDIP.GOWRI SHANKAR OEPUTY REGISTRAR 6 SECTION OFFICER To l. The Xll Additional Senior Civil Judge (FTC), City Civil Court, Secunderabad

2. Two CD Copies. W / HIGH COURT DATED:2411112025 DECREE CCCA.No.12 ot 2019 DISMISSING THE APPEAL 1 \y