1. MUSHIR ALAM, J.---Applicant has impugned the order dated 5-1.0-2006 passed by learned Additional District Judge, Sanghar, dismissing the Miscellaneous Appeal No. 10/2005 whereby upholding the order dated 24-9-2005 passed by learned Civil Judge, Khipro in Execution Application No. 1/1998.
2. It appears that learned' Executing Courting directed the applicant to furnish security for the decretal amount on account of mesne profits at the rate of Rs. 750/- per acre per year from 21-11- 1990 for 164-12 acres of land upto, the period of 21-7-1998 when possession was taken over by the Revenue authority. The amount was collected to be Rs. 8,82,140/- vide order dated 24-9-2005.
3. It was contended by learned counsel for the applicant that learned Trial Court while decreeing the suit of possession and mesne profits filed by the respondents had given an adjustment of Rs.
4. 88,900/- and Rs. 10,000/-respectively which was not considered by the Executing Court. It was next contention that the learned Executing Court has not given specific amount for the security. Mr. Jhamat Jethanand, learned counsel further contended that mesne profit was not determined in accordance with law. No adjustment of expenses incurred by the applicant on the land was admitted. The manner in which mesne profit was determined is not in accordance with law. In support of his contentions, he has placed reliance on . The case of Partap Ahir and another v. Gopi Dam, and another (AIR 1953 Allahabad 943), Harry Kempison Gray and another v. Bhagn Mian and others (AIR 1930 Privy Council 82) and Dai Kiran Chandra Doy Bahadur and others v. Erfan Karikar and others (AIR 1934 Calcutta 503) respectively. Mr. Jhamat also placed reliance on Mrs. Zia Farhat and others v. Presiding Officer, Special Court (Banking) (1996 M LD 680) to urge that the manner in which security was ordered is against the settled legal norms. Mr. Jhamat vehemently argued that there is no final decree for determination of mesne profit and unless such final decree is passed, the questions of putting the applicant on terms to furnish security does not arise. He also states that mesne profit could only be paid in respect of the land that is under cultivation and since such issue was not decided as to what land was under cultivation, one applicant, therefore, cannot be put to terms as to payment of mesne profit.
5. Mr. Muhammad Hashim Memon, learned counsel for respondent No. 1 contended that the learned Court below while deciding the issue No. 6 whether plaintiffs in F.C. Suit No. 51/1992 are entitled to mesne profit or otherwise at page 69 of the judgment, answering the same at page 93 hold that the plaintiffs are entitled to mesne profit at the rate of Rs. 750/- per acre per year w.e.f. 21-11-1990. It was contended that quantum determined by the learned Trial Court, was maintained in appeal by this Court and in Civil Petition No. 2/2001 by the Apex Court, therefore, the Executing Court cannot go behind such determination.
6. It is further stated that Executing Court directed the parties to file the statement of accounts which was filed and the learned Executing Court vide order dated 24-9-2005 quantified the 'amount at the rate determined by the learned Trial Court i.e. Rs. 750/- per acre per year from 21-11-1990 for 164-12 acres total Rs. 8,82,140/-. In support of his contention Mr. Hashim also placed reliance on 1989 SCMR 6402, 2000 CLC 904, PLD 1979 Karachi 263 and 2003 SCM R 1161 respectively.
7. I have heard arguments and perused the record.
8. As regard the first objection of Mr. Jhamat Jethanand, the learned counsel for the applicant that the manner in which mesne profit determined is not in consonance with settled principle of law as it was not mentioned as to what land is an cultivable possession. Mesne profit is defined in Section 2(12), C.P.C. To mean "those profits which the person in wrongful possession of such property actually received or might with ordinary diligence has recovered, therefrom together with interest on such profit but shall not include profit due to improvement made by the person in wrongful possession."
9. Contention of Mr. Jhamat that no final decree was passed, on the face of it is fallacious. Decree is formal expression of an adjudication, which conclusively determines the rights of the parties with regard to all or any matters in controversy in the suit and may be either preliminary or final. A decree is preliminary when further action, enquiry of supplementary or consequential nature are to be carried out to cement the foundation of issues or right determined in preliminary decree. Like for instance cases of mesne profit, before Court could embark on mesne profit, Court will have to record a finding that the plaintiff is lawful owner of the property and the defendant was in unauthorized possession or kept the plaintiff out of possession upon determination of such fundamental right, between the party, the issue of mesne profit would become. Relevant and would then call for determination.
10. Once the Court record findings that the defendant was in unauthorized possession or that it was defendant who was instrumental and deprived the plaintiff of lawful enjoyment of his property, would be liable for mense profit. A decree for possession and mesne profit is within the contemplation of Order 20, Rule 12, C.P.C. The Court may determine the rent or mesne profit on the basis of evidence led before it, and where evidence as to quantum of such rate is lacking Court may direct an enquiry as to such rent or mesne profit. In cases where an enquiry is directed, a preliminary decree precedes final decree.
11. I have examined the judgment and decree of the Court below. On Issue No. 6 the Court ids .Noted that mesne profits was claimed at the rate of Rs. 1,000/- per acre from 21-11-1990 till delivery of the possession. Evidence of both the parties on the issue was evaluated. The Court worked out a figure of Rs. 750/- ir lump sum per acre from 21-11- 1990 till the possession of the suit, land, the amount determined by the Court was not upset upto the Apex Court. Final decree, in cases of mesne profit is only passed where an enquiry is directed under clause (b) or (c) to Rule 12 of Order 20, C.P.C. It appears that since the Court had evaluated the mesne profit, examining the rival claim of the parties, there was no necessity to embark upon any further inquiry within the contemplation of Rule 12(1)(0' & (c), C.P.C. That may warrant passing of preliminary followed by final decree. In instant case the amount of mesne profit was 'determined by the learned Trial Court and maintained upto Supreme Court. In instant case final decree calculating the amount was passed as there was no need to pass preliminary decree. Area of the land is not disputed. The amount worked out by the Executing Court at the rate of Rs. 750/- for land measuring 164-12 acres from 21-11-1990 to 12-7-1998 is not disputed. The only grievances calls for consideration is that learned Trial Court had given adjustment of Rs. 88,900/- and .Rs. 10,000/- to the applicant, which was not taken into consideration by the learned Executing Court, while arriving at the figure of Rs. 8,82,149/- Deducting Rs. 99,900/- mesne profit recoverable works out to be Rs. 7,82,240/- impugned order is modified to the above extent only.
12. Further no merits in this revision, same is dismissed with costs through out. However, adjustment of the aforesaid amount to be given, in case the applicant fails to furnish security for the amount mentioned above within two weeks from today, the petition will be deemed to have been dismissed and execution granted.
13. This is of course without prejudice to the right of decree-holder to claim "further mesne profit for a period, the decree-holder was keep out of possession and deprived to enjoy his property for the act of the appellant/J.D. Or any person at his behest.
14. Civil .