Rayavarapu Bala Gopal, v. Rayavarapu Hari Gopal,

THE HON'BLE SRI JUSTI CE A. RAMALI NGESWARA RAO CI VI L REVI SI ON PETI TI ON NO.7200 OF 2017 ORDER:

Heard the learned counsel for the petitioners and the 1st respondent who appeared in person. The 1st respondent submits that by virtue of GPA, he is appearing for the 2nd respondent also.

2.

This Civil Revision Petition is filed against the order in I.A.1220 of 2011 in O.S.No.56 of 2006 on the file of the Principal District Judge, Nellore. The suit was filed for partition and a preliminary decree was passed on 20.4.2010. Against the same, A.S.558 of 2010 was filed before this Court and the same is pending. This Court, in ASMP.No.1612 of 2010 granted interim stay of passing of final decree. The petitioners were permitted to file a petition for ascertainment of mesne profits in ASMP.No.2048 of 2011 dated 20.9.2011, since the Trial Court, while disposing of O.S.No.56 of 2006 on 20.4.2010 observed that there was no material before the Court to ascertain the mesne profits but held that parties are entitled to claim mesne profits as permissible under law. Pursuant to the direction of this Court as aforesaid, the respondents herein filed I.A.No.1220 of 2011 before the Trial Court for mesne profits. The preliminary decree was passed holding that the plaintiffs

are entitled for half share in suit schedule property as per Will dated 25.7.1998 executed by their grand father R.Shankaraiah. In the application filed before the Trial Court, an Advocate Commissioner was appointed, to ascertain the mesne profits by conducting separate enquiry, by order dated 23.11.2011 and he submitted his report on 3.4.2017. Though the petitioners therein did not file any objections, the respondents filed their objections. The Advocate Commissioner took into consideration the immovable property of 4533 square feet and 4824 square feet after deducting the expenditure thereof for the said property and arrived at the share of the petitioners at Rs.1,65,685/- by taking the income of the property at Rs.50 per square feet per annum and Rs.30 per square feet per annum respectively.

While arriving at the said amount, it appears that the Commissioner took the report of a Chartered Engineer marked as Ex.P1, but the respondents in their objections raised that the Commissioner took the vacant site as 4824 square feet but has not deducted the constructed area of 2136 square feet.

4,824 square feet and since the constructed area is separately shown, there is no need to deduct the constructed area from the vacant area.

3.

The respondents also raised another objection stating that the suit schedule property was exclusively used for residential purpose and it was not used for commercial purpose and the said objection was over ruled on the ground that in the preliminary decree, the Court not only granted decree for division of suit schedule property but also for division of mesne profits.

4.

But a perusal of the Judgment of the lower Court clearly shows that no decree for mesne profits was granted and there is no clarity in the order of the learned Principal District Judge, Nellore, with regard to the usage of the property either as residential purpose or for commercial purpose. In the absence of any finding on the usage of the property, the determination of income also may be improper. There is no separate adjudication by the learned Principal District Judge for upholding the valuation made by the learned Commissioner and no evidence was let in by either of the parties. 5.

Now 1st respondent herein submits that he has sufficient evidence which was not produced before the lower Court by his Advocate.

6.

Be that as it may, in the absence of any evidence in support of the report of the Commissioner, the Commissioner's report cannot be upheld with regard to the valuation made and the parties have to independently lead evidence either in support of the report of the Commissioner or against the same. 7.

In view of the same, this Court is constrained to set aside the order of the learned Principal District Judge, Nellore dated 3.7.2017 and remands the matter to him for adjudication afresh in accordance with law by giving due opportunity to the petitioners as well as the respondents.

8.

Learned Principal District Judge, Nellore is directed to pass fresh orders within a period of three months from the date of receipt of a copy of this order and it is needless to observe that the parties shall cooperate for the disposal of the matter before him.

9.

The Civil Revision Petition is, accordingly, allowed at the admission stage.

Pending miscellaneous petitions, if any, shall stand closed. No order as to costs.

________________________ A. RAMALI NGESWARA RAO,J Date: 20.3.2018 KPM