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CASE NO.: Appeal (civil)  583 of 2008

PETITIONER: Ganapati Madhav Sawant(dead)Through his Lrs.

RESPONDENT: Dattur Madhav Sawant

DATE OF JUDGMENT: 22/01/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 18522 of 2004) Dr.ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Bombay High Court  Aurangabad  Bench, dismissing the appeal filed by the appellant under  Section 100 of the Code of Civil Procedure, 1908 (in short the  \021CPC\022).  The appellants, heirs of the original Defendant Nos. 1  to 3 questioned correctness of the decree and judgment passed  by learned Additional District Judge, Osamabad in Regular  Civil Appeal No. 89 of 1999 confirming the decree in Regular  Civil Suit No. 62 of 1981 passed by the Civil Judge, Jr.  Division, Kallam.  The High Court dismissed the Second  Appeal holding that there was no question of law involved and  therefore, the Second appeal was without merit.

3.      Learned counsel for the appellant submitted that while  issuing notice in the Second appeal, the High Court  categorically observed as follows:

\023The next ground argued by the learned  counsel for the appellant is that the plaintiff  did not pray for an inquiry with the mesne  profit to be held under Order XX Rule 12 in  the plaint and in the absence of specific prayer  for an inquiry into the mesne profits the same  should not have been granted by the courts  below.  The said directions is contained in  clause IV in the operative part of the judgment  and decree of the trial court.  The learned  counsel for the appellant has placed reliance of  the judgment of the Apex Court reported in  AIR 1952 Supreme Court 358 Mohammad  Amin and Others v. Vakil Ahmed and Others  and to precise para 20 thereof.  In this view of  the matter issue notice before admission  returnable in six weeks touching only clause  IV of the operative part of the order passed by  the trial court directing the inquiry in regard to  mesne profits under Order XX Rule 12. The  respondents be intimated that the appeal will  be finally heard and decided at admission  stage.\024       4.      It was, therefore, pointed out that the grant of mesne

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profit without any enquiry in terms of Order XX Rule 12 CPC  was not permissible.       5.      There is no appearance on behalf of respondent.

6.      In Mohammad Amin and Ors. v. Vakil Ahmed and Ors.  [AIR 1952 SC 358] it was, inter-alia, observed as follows.           \023It was however pointed out by Shri S.P.  Sinha that the High Court erred in awarding to  the plaintiffs mesne profits even though there  was no demand for the same in the plaint.   The learned Solicitor General appearing for the  plaintiffs conceded that there was no demand  for mesne profits as such but urged that the  claim for mesne profits would be included  within the expression \023awarding possession  and occupation of the property aforesaid  together with all the rights appertaining  thereto.\024  We are afraid that the claim for  mesne profits cannot be included within this  expression and the High Court was in error in  awarding to the plaintiffs mesne profits though  they had not been claimed in the plaint.  The  provision in regard to the mesne profits will  therefore have to be deleted from the decree.   We dismiss the appeal of defendants 1 to 5  and affirm the decree passed by the High  Court in favour of the plaintiffs, deleting  therefrom the provision in regard to mesne  profits. The plaintiffs will of course be entitled  to their costs throughout from defendants 1 to  5.\024                7.      The High Court while deciding the Second Appeal, failed  to notice that while issuing notice it was categorically noted  that the plaintiff had not prayed for an inquiry relating to  mesne profit in terms of Order XX Rule 12 CPC and in the  absence of any specific prayer for any inquiry into that aspect,  the same could not have been granted.       8.      As rightly contended by learned counsel for the  appellants that though at the time of issuance of notice the  High Court had noted that this substantial question of law did  arise for consideration, while deciding the second appeal, this  aspect was lost sight of. In the circumstances it would be  appropriate to remit the matter to the High Court to consider  that aspect.

9.      The appeal is allowed to the aforesaid extent with no  order as to costs.