Weavers And Dyers Society Kalin ... vs Scindia Devsthan Trust
2023 Latest Caselaw 5618 MP

                                                              1
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                    AT GWALIOR
                                                        SA No. 1746 of 2019
                             (WEAVERS AND DYERS SOCIETY KALIN BUNDAL PRAJSHIKSHAN KENDRA THROUGH Vs SCINDIA
                                                       DEVSTHAN TRUST AND OTHERS)

                           Dated : 06-04-2023
                                 Mr. Harish Kumar Dixit - Advocate for the appellant.

                                 Mr. Ankur Mody - Advocate for respondents.

Mr. Varun Kaushik - Advocate for respondent No. 9/State. Heard on I.A. No. 1522 of 2023, an application for appropriate directions for enhancement of the monthly usage charges/mesne profit of the disputed

premises.

This application is filed submitting therein that the instant second appeal was admitted for final hearing by this Court vide order dated 04.10.2021 and since then is pending. Even though the suit was decreed in favour of the respondent-Trust in the year 2011 i.e. about 12 years ago. The appellant is in possession of the entire suit premises, which ad-measures area i.e. 7000sq. ft. and the same is being occupied and used by the appellant without paying any usages charge/mesne profit. The suit premises is situated near Maharaj Bada, Gwalior, which is one of the most expensive location in the city. The prevailing

rental in the locality for a similar property is approx. Rs.1,00,000/- P.M. Since respondent No. 1 is a charitable trust and therefore, he prays for enhancing the monthly usages charges/mesne profit of the property.

By filing document No. 1537 of 2023 dated 31.03.2023, the appellant vehemently opposed the application filed by the respondent and submitted that the appellant is in settled possession over the suit property and even if considered as encroacher, can be removed only by a true owner. Further submission is that the appellant has already deposited the decreed mesne profit Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/10/2023 5:31:32 PM

of Rs.2700/-. The respondent has not made any statement regarding enhancement of value/taxes of the trust property. The respondent is not paying any taxes to the government being a charitable trust, therefore, there is no cause of action to file the present application and the same deserves to be dismissed.

Heard learned counsel for the parties and perused the record. From perusal of the judgment of learned trial Court reveals that while deciding the issue No. 7, the learned trial Court held that the plaintiff/respondents has not pleaded the amount of rate of mesne profit and therefore, only on the basis of pleadings in respect to rent paid by defendants No. 3 and 4 the rate of mesne profit was decided. In these circumstances, when

the rate of mesne profit was not pleaded and not amendment has been sought to enhance the mesne profit, this Court is not inclined to enhance the mesne profit at this stage.

So far as I.A. No. 209 of 2023, an application for final hearing at motion stage is concerned, the learned counsel for the respondent sought to list this appeal for final hearing at motion stage which was vehemently opposed by the appellant by filing the reply vide document No. 254 of 2023 dated 13.01.2023 and submitted that present appeal has been admitted on 04.10.2021 and learned counsel for the respondent has failed to assign any reason for urgent hearing of the case, therefore, the present application be dismissed.

Since, learned counsel for respondent fails to assign any reasons for urgent hearing of the case, I.A. No. 209 of 2023 is hereby dismissed.

List the case in due course.

(SUNITA YADAV) JUDGE Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/10/2023 5:31:32 PM

(LJ*)

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/10/2023 5:31:32 PM