Jawahar Satyapal Rathor vs Syed Arifuddin Syed Ziyuddin And ...
2021 Latest Caselaw 6326 Bom

                                                    Second Appeal No.114/2021
                                      :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                  SECOND APPEAL NO.114 OF 2021 WITH
                   CIVIL APPLICATION NO.2287 OF 2021



 Jawahar s/o Satyapal Rathor                         ... APPELLANT

          VERSUS

 Syed Arifuddin s/o Syed Ziyuddin
 and others                                          ... RESPONDENTS

                              .......
 Shri V.D. Hon, Senior Counsel, instructed by
 Shri A.V. Hon, Advocate for appellant
 Shri A.D. Hande, Advocate for respondent No.1
                              .......

                                  CORAM :       R. G. AVACHAT, J.

                                  DATE :        8th APRIL, 2021

 ORDER:

Heard Mr. Hon, learned Senior Counsel for the

appellant and Mr. Hande, learned counsel for respondent

No.1/ Caveator.

2. Issue notice before admission to the respondents

returnable on 6th May 2021. Mr. Hande, learned counsel

appearing on Caveat filed for and on behalf of respondent

No.1, waives service of notice for respondent No.1.

Second Appeal No.114/2021 :: 2 ::

3. The challenge in this Second Appeal is to the

judgment and decree dated 30/1/2017, passed by the Court

of Civil Judge, Senior Division, Biloli in R.J.E. No.11/2014 and

modified by the District Judge-1, Biloli in Regular Civil Appeal

No.22/2018.

4. In short, the challenge in this appeal is to the

decree, determining future mesne profits at the rate of

Rs.10,000/- per month from the date of the suit. The

appellant herein is in possession of the land admeasuring 15

R, situated at Degloor, District Nanded. He runs a petrol

pump thereon. The respondent No.1 filed a suit, being

Special Civil Suit No.32/2007 for possession of the said land.

The suit had been decreed, directing the appellant to hand

over possession of the said land. Directions had also been

given for determination of past and future mesne profits. The

appeal preferred against the judgment and decree passed in

Suit No.32/2007 is pending before the District Judge. There

is stay to the execution of the decree to the extent of delivery

of possession only.

5. Shri V.D. Hon, learned Senior Counsel appearing

for the appellant would submit that, since first appeal is

pending against the judgment and decree passed in Suit

Second Appeal No.114/2021 :: 3 ::

No.32/2007, there cannot be final determination of mesne

profits. The decree impugned in this Second Appeal is,

therefore, liable to be set aside.

6. It was a suit for possession of the land given on

lease for commercial purpose. The petrol pump is being run

on the said land. The suit is governed by the provisions of the

Transfer of Property Act and not Maharashtra Rent Control

Act. One, therefore, need not make further observations

regarding merits of the appeal filed against the decree in

Special Civil Suit No.32/2007. It is, however, desirable to

grant stay to the execution of the decree determining future

mesne profits, on condition of the appellant depositing 50% of

the amount of mesne profits payable till the end of 31st March

2021 and shall go on depositing the sum of Rs.10,000/- per

month towards future mesne profits pending admission of this

Second Appeal. On compliance of this order, there shall be

stay to the execution of the decree determining mesne profits.

The amount that would be deposited in this Court be kept in

Fixed Deposit with any of the Nationalised Banks.

7. The learned District Judge, Biloli is requested to

decide Regular Civil Appeal No.36/2013 at the earliest.

Second Appeal No.114/2021 :: 4 ::

8. Civil Application No.2287/2021 stands disposed of.

( R. G. AVACHAT ) JUDGE

fmp/-