Sumer Segal (S Segal ) & Anr vs Raj Rani Sharma & Ors.
2018 Latest Caselaw 354 Del

$~13
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                           Date of Decision: 15th January, 2018
+                             RFA 521/2017
       SUMER SEGAL (S SEGAL ) & ANR.           ..... Appellants
                    Through: Mr. Ankit Jain, Advocate.
                    versus

       RAJ RANI SHARMA & ORS.                  ..... Respondents
                    Through: Ms. Radhika Arora, Advocate.
                              (M:- 9953497978)
       CORAM:
       JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J. (Oral)

1. The present appeal arises out of judgment/decree dated 18th March, 2017 by which the Trial court had passed a decree for possession in favour of the Appellants/Plaintiffs (hereinafter, 'Plaintiffs') against the Respondent/Defendants (hereinafter, 'Defendants'). The property in question is part of property no.322, Kucha Ghasi Ram, Chandni Chowk, Delhi-110006 (hereinafter, 'suit property') as specifically shown in red colour in the site plan. Along with the decree for possession, the Trial court also passed a decree of mesne profits/damages of Rs.3,000/- per month along with the pendent lite interest @ 6% p.a. and future interest @ 9% p.a. from the date of filing of the present suit till its realisation.

2. The Defendants challenged the said decree for possession in RFA No.632/2017. This Court on 19th July, 2017 held that the suit property was not a public temple. The observations of the Court are set out below:

"7. The aforesaid facts and evidence referred to

in paras 21 to 23 of the judgment of the trial court therefore leave no manner of doubt that Sh. Vinay Chand Sharma was appointed in terms of the application and appointment letter Ex.P-4 and Ex.P-5 and there cannot be a claim of hereditary office being occupied by Sh. Vinay Chand Sharma more so when Sh. Vinay Chand Sharma himself never raised this plea at any point of time. Also the issue of priest having inherited the office of priest is only qua public temple and not qua private temple. No evidence worth the name has been led on behalf of the appellants/defendants to show that the temple was a public temple. In any case, the trust deeds Ex.P-2 and Ex.P-3 clearly show that the temple was a private temple.

8. I cannot agree to the argument urged on behalf of the appellants/defendants as regards any concealment of trust deed dated 29.8.1929 for the two reasons. Firstly if the appellants/defendants want to rely on this testament, then, they had to produce and prove the same and secondly, in any case, once the specific trust deeds Ex.P-2 and Ex.P-3 are admitted, the temple is indubitably a private temple.

9. This Court hearing the first appeal under Section 96 CPC can interfere with the findings and conclusions of the trial court if findings and conclusions of the trial court are illegal and perverse. Once the trial court has taken a view on the basis of the evidence on record, this Court is not entitled to interfere with one possible and plausible view taken by the trial court."

3. Thus, the decree for possession was upheld by this Court in RFA No.632/2017. On a specific query to the Defendants, it is informed that no Special Leave Petition has been preferred against the said judgment dated 19th July, 2017. The decree for possession has attained finality.

4. The Plaintiffs have filed execution proceedings that are stated to be pending.

Plaintiffs' case

5. By this present appeal, the Plaintiffs challenge the quantum of mesne profits as decreed by the Trial court. The Trial court has granted Rs.3,000/- per month as mesne profits along with interest and it is the submission of the learned counsel for the Plaintiffs that the mesne profits ought to have been at least Rs.15,000/- per month. Mr. Ankit Jain, counsel appearing on behalf of the Plaintiffs, relies upon the following issue framed in this regard by the Court.

"Whether plaintiff is entitled for decree of mesne profit alongwith pendentelite and future interest as per prevalent market rate as prayed for? OPP"

6. He further relied on the evidence led by the Plaintiffs, as also the written statement of the Defendants. In para 5 of the written statement, the Defendants have made a statement that the rent for small shops which have been commercialized, that are part of the suit property, is Rs.10,000/- per month. Para 5 of the written statement is extracted below:

"That the present suit is sheer misuse and abuse of process of law and the same has been filed with oblique and ulterior motive and with dishonest and fraudulent design as the entire area surrounding the suit property has been commercialized and the Angaria/money lenders are taking the small shop/ kolki against a sum of Rs.10,000/- per month. The plaintiffs has filed the present suit for making the market of the temple and wants to get the financial benefit and advantage."

7. The Plaintiffs also rely on evidence led by Plaintiff No. 1 before the Trial court wherein PW-1 Sumer Segal deposed as under:-

"I say that if the suit property is let out in the market, it can easily fetch an amount of Rs.15,000/- per month as rent."

8. In cross examination, PW-1 categorically states as under:-

"If the suit property is let out today in the open market it will fetch market it will fetch market rent more than Rs.15,000/- per month.

9. In the affidavit of the Defendants, it is also admitted that the Plaintiffs are getting a higher rental and that is the reason they are trying to evict the Defendants from the suit property. In cross examination, DW-2 Sumit Sharma states that the tenants i.e. several angarias who are occupying the commercial space in the suit property are paying rental from Rs.10,000/- to Rs.15,000/- per month for small rooms.

10. On the strength of the above evidence, learned counsel for the Plaintiffs submits that mesne profits of Rs.3,000/- per month are extremely low when compared to the market rates. He further submits that the occupation charges at the enhanced rates ought to have been awarded from the date of termination of the license and not from the institution of the suit. Defendants'case

11. Ms. Radhika Arora, counsel appearing on behalf of the Defendants submits that the Defendants are running the temple in the suit property and the sewadari rights of the said temple have been inherited from the predecessor of the Defendants i.e. grand-father of the Defendants who was the pujari. The Defendants continue to perform sewa in the temple even till

date. Since the suit property is a temple, the mesne profits cannot be compared with other spaces being used for commercial purposes. Appeal Proceedings

12. Arguments have heard on 11th January, 2018. At the conclusion of the arguments, the matter was listed today to enable parties to file copies of judgments.

13. Parties have however reported that they have agreed to settle the dispute on the following terms and conditions:

(i) The Respondents/Defendants agree to hand over vacant and peaceful possession of the suit property to the Appellants/Plaintiffs on or before 29th June, 2018. This submission is being made by Mr. Amit Sharma/Respondent No.2 and Mr. Sumit Sharma/Respondent No.3, who are present in Court.

(ii) Other two Respondents namely Smt. Raj Rani Sharma/Respondent No.1 & Smt. Megha Sharma/Respondent No.4 who are the mother and sister of Respondent No. 2 and Respondent No. 3 respectively, shall file their affidavits of undertaking, conforming to the statement made by Mr. Amit Sharma and Mr. Sumit Sharma, within 10 days from today.

(iii) The Respondents/Defendants shall not cause any damage to the suit property.

(iv) Electricity and water charges until 29th June, 2018 shall be borne by the Respondents/Defendants.

(v) The Respondents/Defendants shall not transfer, alienate, part with the possession or create any third party interest in the suit property.

(vi) In view of the statements made by the Defendants, the counsel for

the Plaintiffs agrees that the Plaintiff shall give up the relief of mesne profits completely.

14. Joint statement of Shri Amit Sharma/Respondent No.2 and Shri Sumit Sharma/Respondent No.3, who are present in Court, has been recorded. It is submitted by the Counsel for the Respondents that Respondent No. 2 and Respondent No. 3 are duly authorised by Respondent No. 1 and Respondent No. 4 to agree to the above terms of settlement. Affidavits of undertaking be filed by Respondent No. 1 and Respondent No. 4 within 10 days.

15. The appeal is disposed of as settled. Parties shall be bound by the terms of settlement. The impugned judgement and decree is modified in terms of the settlement.

16. List on 3rd July 2018 for reporting compliance.

PRATHIBA M. SINGH, J.

Judge JANUARY 15, 2018/dk