Dismissed

Dayaram @ Dinuram v. Dilip Kumar

Chhattisgarh HC1 Aug 2019SA/525/2006

Case brief

AI extract

What is this about?

This court dismissed a second preference appeal filed by plaintiffs seeking mesne profit. The court held that since the plaintiffs failed to press the claim for mesne profit in the first appeal or via cross-objection during the defendants' first appeal, the issue attained finality and no substantial question of law existed.

What did the court decide?

The second appeal was dismissed in limine without merits.

Dayaram @ Dinuram Vs Dilip Kumar — Execution and Attachment | Chhattisgarh HC (2019)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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SA No. 525 of 2006

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Dayaram @ Dinuram S/o Chhotu Nai Aged About 63 Years R/o Village Dhodiya, Tah. And Distict- Rajnandgaon, Chhattisgarh.

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Govind Nai S/o Chhotu Nai Aged About 60 Years R/o Village Dhodiya, Tah. And Distict- Rajnandgaon, Chhattisgarh.

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Jethu Nai S/o Chhotu Nai Aged About 55 Years R/o Village Dhodiya, Tah. And Distict- Rajnandgaon, Chhattisgarh.

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---- Appellants/Plaintiffs

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Versus

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Dilip Kumar S/o Chhotelal Thakur Aged About 50 Years R/o Baldeo Bag, Town, Tahsil And District- Rajnandgaon, Chhattisgarh.

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Ashok Kumar S/o Chhotelal Thakur Aged About 48 Years R/o Baldeo Bag, Town, Tahsil And District- Rajnandgaon, Chhattisgrah.

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Manoj Kumar S/o Chhotelal Thakur Aged About 45 Years R/o Baldeo Bag, Town, Tahsil And District- Rajnandgaon, Chhattisgrah.

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(A) Suraj Thakur S/o Chandrahas Thakur Aged About 42 Years R/o Baldeo Bag, Town, Tahsil And District- Rajnandgaon, Chhattisgrah. (B) Sudeep Thakur S/o Chandrahas Thakur Aged About 30 Years (C) Ku. Sefali Thakur D/o Chandrahas Thakur Aged About 37 Years (D) Deepa Thakur D/o Chandrahas Thakur Aged About 35 Years

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Narendra Nath S/o Maheshwarnath Thakur Aged About 70 Years R/o Ambagarh Chowki, District- Rajnandgaon, Chhattisgarh.

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Ravindranath S/o Maheshwarnath Thakur Aged About 55 Years R/o Brahman Para, Tahsil And District- Rajnandgaon, Chhattisgarh.

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Parmanand S/o Jaidutt Mishra Aged About 55 Years R/o Village Tedwa, Post Mohjharri, District- Balaghat, Madhya Pradesh.

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Chandrakala W/o Anand Prakash Thakur Aged About 54 Years R/o Brahman Para, Town, Tahsil And District- Raipur, Chhattisgarh.

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Anuradha W/o Madhav Prasad Thakur Aged About 50 Years R/o Brahman Para, Town, Tahsil And District- Raipur, Chhattisgarh.

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Laxmi Bai W/o Prakash Thakur Aged About 44 Years R/o Brahman Para, Town, Tahsil And District- Raipur, Chhattisgarh.

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11.Saroj Thakur W/o Akhilesh Thakur Aged About 45 Years R/o Chithara, Post- Chithara, District- Satna, Madhya Pradesh.

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Chhaya Jha W/o Upendra Jha Aged About 40 Years R/o Brahman Para, Town, Tahsil And District- Rajnandgaon, Chhattisgarh.

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Chhattisgarh State Through The Collector, Rajnandgaon, Chhattisgarh.

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Dhanwantin Bai W/o Gaindlal Nai Aged About 30 Years R/o Anjora, Tahsil And District Durg Chhattisgarh. (Now Dead Through Lrs.), District : Durg, Chhattisgarh (A). Gaindlal S/o Chhannu Nai Aged About 56 Years R/o Anjora,Thaisl and District Rajnandgaon, Chhattisgarh. (B). Lata Bai W/o Johan Nai Aged About 30 Years R/o Kasari, near Belgaon, Tahsil Dongergarh, District Rajnandgaon, Chhattisgarh. (C). Anita Bai W/o Goverdhan Shrivas Aged About 28 Years R/o Anjora, Tahsil and District Rajnandgaon, Chhattisgarh. (D). Rajesh S/o Gaindlal Nai Aged About 25 Years R/o Anjora, Tahsil and District Rajnandgaon, Chhattisgarh. (E). Mamta Bai W/o Ghanshu Shrivas Aged About 22 Years R/o Bhardakala, Tahsil Gunderdehi, District Balod, Chhattisgarh.

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---- Respondents/Defendants

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For Appellants : Mr. V.K. Sharma, Advocate For State : Mr. Arun Shukla, Government Advocate

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Hon'ble Shri Justice Sanjay K. Agrawal Order On Board

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01.08.2019

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Heard on admission and formulation of substantial question of law in this second appeal preferred by plaintiffs under Section 100 of the Code of Civil Procedure, 1908.

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Mr. V.K. Sharma, learned counsel for the plaintiffs submits that both the Courts below are absolutely unjustified in not granting decree for mesne profit despite having granted the decree for possession in favour of the plaintiffs. In that view of the matter both the Courts below ought to have granted decree of mesne profit from the date of decree upto the delivery of possession under Order 20 Rule 12 of CPC. Accordingly, the second appeal involves substantial question of law for determination.

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I have heard learned counsel appearing for the plaintiffs, considered his submissions and went through the records with utmost circumspection.

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Plaintiffs filed civil suit for possession and mesne profit which was decreed by learned trial Court but no mesne profit was granted in their favour. Assailing the judgement and decree of the trial Court, only the defendants preferred a first appeal under Section 96 of the CPC. In that first appeal, the plaintiffs did not make any cross-objection to claim decree for mesne profit and ultimately, the first appeal was dismissed on merits. Now, the plaintiffs have filed this second appeal claiming mesne profit.

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In the considered opinion of this Court, learned trial Court only granted decree for possession and did not grant decree for mesne profit which the plaintiffs did not assail by filing the first appeal or by making cross-objection. As such, non-grant of decree for mesne profit has become final and now, after dismissal of the first appeal which was filed by the defendants, plaintiffs cannot come up before this Court claiming decree for mesne profit which has attained finality against plaintiffs. I do

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not find any substantial question of law for determination in this

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second appeal.

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The second appeal, being devoid of merits, deserves to be and is accordingly dismissed in limine without notice to the other

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side. No order as to cost(s).

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Sd/(Sanjay K. Agrawal) Judge

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Harneet

Dayaram @ Dinuram v. Dilip Kumar

Case brief

What is this about?

What did the court decide?

Dayaram @ Dinuram v. Dilip Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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