Rajasthan High Court - Jodhpur

Latif Khan vs Wazir Khan And Ors on 23 March, 2021

Bench: Arun Bhansali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B.Civil Misc. Application No.1144/2016 In S.B. Civil First Appeal No. 84/2012

Latif Khan s/o Mehboob Khan, aged about 49 years, r/o Bhinder, at present Bahar Ka Shahar, in front of Bherav Higher Secondary School, Bhinder, Tehsil Vallabhnagar, District Udaipur (Raj.)

----Appellant Versus

1. Wazir Khan s/o Mehboob Khan.

2. Fazlu Rehman s/o Mehboob Khan

----Plaintiffs

3. Smt. Barkat Begum w/o Mehboob Khan r/o Bhinder, at present Bahar Ka Shahar, in front of Bherav Higher Secondary School, village Pari, Tehsil Kapasan, District Chittorgarh.

4. Mubarak Khan s/o Mehboob Khan r/o Bhinder, at present Near Meera Takiz, Bharat Cement Trading Company, Mala Upar, Millat Nagar, Ahmedabad (Gujarat).

5. Rafique Khan s/o Mehboob Khan, r/o Bhinder, at present Near Gopaldwara, Mandal, Post Mandal, Tehsil Mandal, District Bhilwara.

6. Smt. Shahjad Begum d/o Mehbood Khan w/o Layak Hussain (s/o Liyakat Hussain), r/o Kajodpura, Near Tower Kenchi, village Sawa, Tehsil & District Chittorgarh.

7. Bashir Khan s/o Mohammad Khan Pathan, r/o Bhinder, at present village Sawa, Tehsil & District Chittorgarh.

8. Ahmed Noor Khan s/o Mohammad Khan Pathan, r/o Bhinder, at present village Nathdiyas, District Bhilwara.

9. Ayub Khan.

10. Saleem Khan Both sons of Meer Khan, r/o Bhinder, at present Gandhi Nagar, Subhash Colony, Chittorgarh.

                                                                     Defendants


For Appellant(s)          :    Mr. B.L.Choudhary.
For Respondent(s)         :    Mr. S.L.Sukhwal.



                              (2 of 5)


           HON'BLE MR. JUSTICE ARUN BHANSALI

                                   Order

23/03/2021

An application, I.A. No. 1144/2016, under Section 151 CPC

for award of mesne profit has been filed by respondent nos. 1 to

It is inter alia indicated in the application that judgment &

decree dated 23/1/2012 was passed by the trial court, whereby,

the suit for partition was decreed and permanent injunction was

granted, against which, the present first appeal has been filed,

which is pending adjudication.

The trial court had passed preliminary decree and held the

respondent nos. 1 and 2 as having 7/40 share each and

respondent no.3 having 1/5th share in the disputed property.

Submissions have been made that appellant is enjoying the

disputed property, which is inter alia having a residential

accommodation and four shops. The Court has granted interim

order directing the trial court not to draw final decree pursuant to

the judgment & decree dated 23/2/2012 and as the respondents

have been deprived from enjoying the fruits of the decree, mesne

profits be directed to be awarded to the tune of Rs.15,000/- per

month to respondent nos. 1 to 3 from the date of preliminary

decree. Along with the application, affidavits have been filed to

indicate that the shops in question can fetch considerable rent.

The application has been contested by the appellant inter

alia on merits as well as with the submission that in a suit for

partition, wherein, the preliminary decree has been granted by the

(3 of 5)

trial court, mesne profit cannot be awarded to the plaintiff-

respondents.

Learned counsel for the applicants made submissions that as

the respondents are being deprived of use of the property in

question to which they have been held entitled, they are entitled

for award of mesne profit during the pendency of the appeal

inasmuch as the appellant is solely enjoying the suit property to

which he is not entitled.

Reliance has been placed on order dated 28/10/1014 in Dr.

Chunni Lal Talesara vs. LRs of Nathulal & Ors. : S.B.Civil First

Appeal No. 171/2003 and order dated 18/12/2017 in LRs of

Sadhu Singh vs. Kesari Chand : S.B.Civil First Appeal

No.128/2017.

Learned counsel for the respondents with reference to the

provisions of Section 2(12) CPC submitted that mesne profit can

be awarded in case it is found that the appellant is in wrongful

possession of the suit property, however, as the suit is for partition

the appellant, till the partition takes place, is entitled to enjoy the

entire property, and it cannot be said that the appellant is in

wrongful possession of the suit property so as to award mesne

profit and, therefore, the application deserves to be dismissed.

Reliance has been placed on the order dated 20/8/2018 in

Ghisi Bai vs Ratan Lal : S.B.Civil First Appeal No. 149/2016 and

several other judgments of various courts.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

The facts are not in dispute, wherein, the suit for partition

has been decreed. The appeal has been admitted on 21/3/2012

(4 of 5)

and the trial court has been restrained from drawing the final

decree pursuant to the judgment dated 23/1/2012. The interim

order has been confirmed to last till the disposal of the appeal

after the respondents were served on 8/1/2014.

This Court in the case of Ghisi Bai (supra) relying on the

order in Giriraj Prasad vs. Tara Devi : 2018 (2) RLW 1566 inter

alia held as under:

"The law relating to award of mesne profit in a suit for partition has been categorically laid down by this Court in Girraj Prasad & Ors. vs. Smt. Tara Devi & Ors. : 2018 (2) RLW 1566, wherein, in a similar nature prayer for grant of mesne profit, it was laid down after referring to the provisions of Section 2(12) CPC and the judgment in Shambhu Dayal Khetan & Ors. vs. Moti Lal Murarka : AIR 1980 Patna 106, as under:

"From the aforesaid provisions, it appears that wrongful possession of immovable property by the occupant is the essence of a claim for mesne profits and cause of liability of the occupier. In other words, accrual of right to have mesne profits presupposes a wrong, and possession of the person has to be found illegal or wrongful.

In the present case, the original suit was for the partition of the joint property and it is an admitted fact that pending the appeal, the disputed property is in the possession of the defendant who is a co-sharer. Thus the matter at hand squarely covered by the judgment in Shambhu Dayal Khetan's case (supra) wherein it has been held that the possession of the co-sharer is not wrongful and co-sharer has right and interest in every inch of the undivided property until it is divided by metes and bounds. It has further been held that by definition mesne profit can be claimed from a person who is in wrongful possession. Admittedly, the parties are the co-sharers and the appellants are not getting any financial benefit out of this property. It is settled law that a co-sharer has right over every inch of the common property. Since the appellants are not in wrongful possession of the property, therefore, a claim for mesne profit is not maintainable.

As such, I find no merit in this application. Hence the same is dismissed as devoid of merits."

In view of the settled legal position as noticed in the case of Girraj Prasad (supra), there is no substance in the application filed by the respondent and the same is, therefore, dismissed."

(5 of 5)

So far as the order in the case of Dr. Chunni Lal Talesara

(supra) is concerned, the said order was passed in a case where

the final decree had already been passed. The case where a

preliminary decree in a suit for partition has been passed cannot

be compared with a case where final decree has been passed

inasmuch as once the final decree is passed, besides the fact that

rights of the parties are crystalized, the area/portion also, to

which they are entitled, stands determined and, therefore, the

parties can legitimately claim that to the extent they have been

held entitled to specific portion of the property, the other party is

in wrongful possession and under the provisions of Order XLI Rule

5 CPC at least they are entitled for award of mesne profit.

However, as the present case is at the stage of passing of

preliminary decree only, the principles laid down in the case of

Giriraj Prasad (supra) as followed in the case of Ghissi Bai (supra)

would be applicable.

The order in the case of L.Rs of Sadhu Singh (supra) has

been passed without there being any response on the part of

appellants therein and without there being any determination on

the aspect of award of mesne profit in a suit for partition.

In view of the above discussion, the application filed by the

respondent nos. 1 to 3 for award of mesne profit cannot be

accepted and the same is, therefore, dismissed.