Rajasthan High Court
Jagdish Prasad Sharma And Anr vs Dharmendra Alias Purushottam And ... on 28 July, 2021
Bench: Manoj Kumar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 526/2018
1. Jagdish Prasad Sharma S/o Late Shri Anandilal Sharma,
R/o Aamwali Kothi, Near Bhomiya Ji Mandir, Opposite To
Patel Dhaba Marg, Village Hadota, Tehsil Chomu, District
Jaipur Rajasthan
2. Gheesa Lal Sharma S/o Late Shri Anandilal Sharma, R/o
Gali No.2, Pratap Colony, Khadi Bagh Road Chomu,
District - Jaipur
----Appellants
Versus
1. Dharmendra Alias Purushottam Adopted S/o Late Shri
Nanuram, R/o Soti Bhawan, Ward No.12 Naya Bazar, Near
Trilok Nursing Homse, Chomu Town, Tehsil Chomu,
District Jaipur
......Respondent/plaintiff
2. Smt. Chougani Devi W/o Shri Raghuvar Dayal D/o Late
Shri Anandilal Sharma, R/o Agarwal Dharamshal Chomu,
District Jaipur
3. Smt. Bidam Devi W/o Shri Mohanlal Trivedi D/o Late Shri
Anandilal Sharma, R/o Srinath Nikunj, House No.61, Vijay
Badi, Path No.1, Teen Dukan, Dahar-Ka-Balaji, Jaipur
4. Smt. Vimla Devi W/o Vaidya Shri Sohanlal Trivedi D/o
Late Shri Anandilal Sharma, R/o Village And Post
Eeshrawala, Via Cheethwadi, Tehsil Amber, District Jaipur
----Respondents
For Appellant(s) : Mr. Rajesh Kumar Sharma, Advocate
through VC
For Respondent(s) : Mr. Sudesh Bansal, Advocate
through VC
HON'BLE MR. JUSTICE MANOJ KUMAR VYAS
Order
28/07/2021
(2 of 4) [CFA-526/2018]
This matter has come-up on misc. application
No.48366/2019,filed under Order 41 Rule 5 read with Section 151
of CPC, to direct the appellants to pay the mesne profits as per
the prevailing rate (@ Rs. 10,300/- per month) w.e.f. 01.07.2019
onwards until the decision of this first appeal.
It has been submitted that the appellants have filed the
present first appeal against the judgment and decree dated
24.03.2018, whereby and whereunder, respondent-applicant has
been entitled to get the possession of the suit property along with
mesne profits. The possession of the appellants over the suit
property is unauthorized, particularly after passing of the
judgment and decree. However, in the first appeal, vide order
dated 28.05.2019, this Court had protected the possession of
appellants by staying the execution of the impugned decree during
the course of pendency of first appeal, subject to mesne profits as
ordered in the impugned decree. Simultaneously, liberty was
granted to the respondent/plaintiff to move application for
enhancement of amount of mesne profits.
The suit property is a plot. As per its location, standing
construction and use, the market has been assessed by the
Chartered Civil Engineer and Registered Valuer on the basis of
prevailing DLC rate of the land and cost of construction with
depreciation. The suit property can be used for commercial
purposes as on both sides of its entrance, two shops are located
having openings towards the main road of Naya Bazar. The suit
property can be used for construction of commercial complex by
the respondent/s. Thus, the suit property is situated in thickly
populated market and has a huge importance of commercial
value. So, mere present use by appellants and present
(3 of 4) [CFA-526/2018]
construction of tin shedded rooms would not adversely affect the
utility of the suit property for commercial purposes. It is,
therefore, prayed that this application may be allowed and the
appellants may be directed to pay the monthly mesne profits at
the rate i.e. Rs.10,300/- w.e.f. 01.07.2019 onwards untill the
decision of the first appeal. The order dated 28.05.2019 may be
modified accordingly.
In support of arguments, learned counsel for the
respondent/s has relied upon the judgments delivered by Hon'ble
Supreme Court in the cases of Atma Ram Properties (P) Ltd. v.
Federal Motors (P) Ltd. (2005) 1 SCC 705 and Pradeep Kumar v.
Hajari Lal 2008(1) WLC (SC) 779.
In reply, it has been submitted that the valuation report
submitted by the respondents valuing the disputed property by
the Registered Valuer of the Income Tax Department on the basis
of PWD norms, is not at all sustainable. It is submitted that
disputed property is khamghar, late bath and tin shed. The said
property governs with the Rajasthan Rent Control Act and not by
the PWD norms. Even otherwise, the appellants are paying mesne
profits regularly without any fail as per the judgment of the trial
Court. Hence, on the basis of valuation report, the respondent/s
are not at all entitled to get mesne profits enhanced as being
claimed.
Heard and perused the record of the case available on
the file carefully. The suit property as per the reply filed by the
appellant is khanghar, late bath and tin shed and it is not being
used for any commercial purpose. This aspect has not been
disputed by learned counsel for the respondent-applicant, but it
has been submitted that the adjoining properties are being used
(4 of 4) [CFA-526/2018]
for commercial purposes and the suit property is suitable for being
used for commercial purposes by the respondents. It has also
been submitted by the respondents that two shops of respondents
are located having opening towards the main road of Naya Bazar.
The suit property can be used for construction of commercial
complex by the respondents but the fact remains that the present
use of the suit property is not commercial and the construction
has been described by the appellant and has not been disputed by
the respondents.
In view thereof, no grounds are made out to modify the
order dated 28.05.2019, whereby, it was directed that appellants
shall pay the arrears of mesne profits upto April 2019 @ Rs.
3000/- per month and they shall deposit mesne profits at the said
rate by 15th of every succeeding month in the bank account of the
respondent. There is no averment of the respondent that the
appellants are not paying the mesne profits as directed by this
court on 28.05.2019.
This court does not find it just and proper to allow the
application (48366/2019), which is accordingly dismissed.
(MANOJ KUMAR VYAS),J
Hemant/31
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