Rajasthan High Court
Rambabu S/O Prabhulal vs Roshanlal S/O Prabhulal on 9 December, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Misc. Stay Application No.2728/2022
IN
S.B. Civil First Appeal No. 712/2022
Rambabu S/o Prabhulal, Aged About 70 Years, R/o Mohalla
Damdama, Town Bari, Tehsil Bari, District Dholpur Rajasthan.
----Appellant
Versus
1. Roshanlal S/o Prabhulal, Aged About 78 Years, R/o
Mohalla Haud, Town Bari Tehsil Bari District Dholpur
Rajasthan.
2. Pratapsingh Alias Bilua S/o Ramprasad, Aged About 48
Years, R/o Village Kasauti Kheda, Tehsil Bari District
Dholpur Rajasthan.
3. Shiv Singh S/o Ramlakhan, R/o Mohalla Thakurpara Town
Bari, Tehsil Bari District Dholpur Rajasthan.
----Respondents
For Appellant(s) : Mr. Sachin Kumar
For Respondent(s) : Mr. Rajneesh Gupta
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
09/12/2022
1. Heard on stay application as also on the issue of grant of
mesne profits.
2. The suit property is a shop measuring about 10 X 15 ft.,
situated in town Badi, District Dholpur.
3. Appellant-plaintiff claims that the suit property was
purchased and construction of shop was raised out of the funds of
Hindu Joint Family and since 1970, the plaintiff is having
possession of suit shop. In the year 1979, on 14.07.1979,
(2 of 7) [CFA-712/2022]
partition was arrived at in the family and the suit shop came in the
share of plaintiff. Defendant No.1-Roshanlal (now deceased)
happens to be brother of plaintiff and when he intended to
dispossess the plaintiff, civil suit for permanent injunction bearing
No.48/2005, titled Ram Babu vs. Roshanlal, was filed which was
decreed in favour of plaintiff vide judgment dated 18.12.2008.
Plaintiff has stated that during the course of previous suit for
permanent injunction, defendant Roshanlal executed an ostensible
sale deed dated 16.11.2005 in favour of defendant No.2 and
defendant No.2 executed a subsequent sale deed dated
30.09.2013 in favour of defendant No.3. Both sale deeds are
without possession and since the plaintiff has acquired the
ownership of the suit shop, defendants have no right to dispossess
the plaintiff from the suit shop and therefore, the present civil suit
for declaration of ownership and permanent injunction was filed by
the plaintiff on 07.05.2012.
4. Counsel for plaintiff has argued that in order to claim the
ownership by plaintiff over the suit shop, the judgment dated
18.12.2008, passed by in previous civil suit for permanent
injunction bearing No.48/2005 does not operate as res judicata
and the trial court has committed error of fact and law in
dismissing the plaintiff's suit and in decreeing the counter claim of
defendant No.3 for possession against the plaintiff.
5. Counsel for appellant states that this court has already
admitted the first appeal for hearing and appellant is in possession
of the suit shop, therefore, during the course of hearing of the first
appeal, possession of appellant be protected and execution of the
decree for possession passed in favour of defendant No.3 and
against the appellant be stayed.
(3 of 7) [CFA-712/2022]
6. Counsel appearing for and on behalf of defendant No.3 has
filed reply to the stay application and has contended that the
judgment dated 18.12.2008 passed in previous suit No.48/2005
filed by appellant-plaintiff has attained finality and in the previous
judgment, the possession of plaintiff was protected not to
dispossess him without due process of law, therefore, plaintiff has
no case for protection of his possession.
7. In the alternative, respondent No.3 has prayed that in case
during the course of first appeal, possession of appellant over the
suit shop is protected, mesne profit @Rs.15,000/- per month be
ordered to be paid by appellant-plaintiff to respondent-defendant
No.3 for use and occupation of the suit shop.
8. In support of his claim of mesne profits, respondent No.3 has
placed reliance on a rent deed dated 23.07.2020 as Annexure R-
3/1. In this rent deed, one shop situated at Maharaja Baag, Badi is
said to be let out @Rs.10,000/- per month.
9. Appellant has filed rejoinder to the reply of the stay
application and stated that the suit shop is situated at Kila Gate
which is about one kilometer away from the suit shop situated at
Maharaja Baag, Badi (Ex. R-3/1) and therefore, the claim of
mesne profit @Rs.15,000/- is too excessive.
10. Appellant has stated that monthly rent of other shops
situated nearby suit shop is Rs.1,000/- and Rs.1200/- per month.
Few rent receipts of Rs.1,000/- dated 01.01.2022, 01.02.2022 &
01.03.2022 (Annexure-A/1) of Mithun Mahaur, rent receipts of
Rs.1200/- dated 01.05.2022, 01.09.2022 and 01.10.2022
(Annexure-A/2) of Shiv Kumar Goyal and rent receipts of
Rs.1200/- dated 01.06.2022, 01.07.2022 and 01.08.2022
(Annexure-A/3) of Kishan Kumar Garg, affidavits of tenants, to
(4 of 7) [CFA-712/2022]
show rent of three shops alleged to be situated at Kila Gate, Badi
have been placed on record as Ex.A/1, A/2 and A/3.
11. Appellant has also stated that DLC rate for the area at
Maharaja Baag is much higher than the DLC rate of area Kila Gate
and according to the DLC rate, the market value of the suit shop
comes much lesser than the shop situated at Maharaja Baag, in
Town Badi, District Dholpur. The copy of DLC rate for the area
situated from Ghantaghar Gate to Kila Gate, has been placed on
record as Ex.A/5.
12. It has been stated that according to the size and location of
the suit shop and taking into consideration its old construction as
well as the prevailing rate of rent of nearby situated shops, the
mesne profits may not be fixed more than Rs.1,200/- per month.
13. Counsel for appellant, in order to determine the mesne profit
at reasonable rate, has placed reliance on the following
judgments:-
(1). Atma Ram Properties (P) Ltd. vs. Federal
Motors (P) Ltd. [(2005) 1 SCC 705]
(2). State of Maharashtra vs. Super Max
International Private Limited [(2009) 9 SCC 772]
(3). Martin and Harris Private Limited vs. Rajendra
Mehta [(2022) 8 SCC 527]
(4). Datumal vs. Seth Madan Gopal [(2007) SCC
OnLine Raj 925]
(5). Prithvi Singh vs. Pahap Singh [(2006) SCC
OnLine Raj 768].
14. Having heard counsel for both parties and taking into
consideration the intricate issues in respect of suit shop are to be
adjudicated in the first appeal on facts as also on law, the first
appeal has already been admitted for hearing. This is an
undisputed fact that appellant is having actual and physical
(5 of 7) [CFA-712/2022]
possession over the shop in question and running grocery
business for his livelihood.
15. In case of Atma Ram Properties (supra), the Hon'ble
Supreme Court has expounded a proposition of law that, where
the appellant has challenged that decree for possession, allowing
dispossession of appellant, during course of first appeal may lead
to irreparable injury and in order to maintain the balance of
interest of the parties, appellant judgment debtor may be put at
terms to pay the reasonable amount of mesne profits in order to
retain possession during course of appeal, payable to the
respondent decree holder so that equity may be maintained and
interest of decree holder may also be protected. It has also been
propounded that the quantum of mesne profit should be just and
reasonable and the same may be determined after taking into
consideration facts and circumstances of each case. The same
principle has been reiterated in other judgments referred by
counsel for appellant.
16. Having considered the material placed before this Court, it is
not in dispute that the area of suit shop is about 10 X 15 ft. and
the same is situated at Kila Gate, Badi. The rent receipts of
Rs.1,000/- dated 01.01.2022, 01.02.2022 & 01.03.2022
(Annexure-A/1) of Mithun Mahaur, rent receipts of Rs.1200/-
dated 01.05.2022, 01.09.2022 and 01.10.2022 (Annexure-A/2) of
Shiv Kumar Goyal and rent receipts of Rs.1200/- dated
01.06.2022, 01.07.2022 and 01.08.2022 (Annexure-A/3) of
Kishan Kumar Garg have not been rebutted by respondent No.3.
Through receipts and affidavits, it appears that other shops
situated at Kila Gate in Town Badi, nearby suit shop, their rent is
Rs.1,000/- or Rs.1,200/- per month. The rent deed Annexure
(6 of 7) [CFA-712/2022]
R/3/1 on which respondent No.3 has placed reliance is in respect
of shop situated at Maharaja Baag, Badi which has been said to be
about one kilometer away from the suit shop. In the rent note,
there is no mention about the size of that shop and according to
four boundaries, that shop is situated nearby the bus stand.
Therefore, it is clear that the location of suit shop is not similar to
the shop under rent deed (R/3/1).
17. At the same time, appellant has not detailed out the size of
other three shops, alleged to be situated nearby the suit shop.
Counsel for appellant admits that appellant is using the suit shop
for running grocery business.
18. During the course of arguments, counsel for respondent No.3
has proposed mesne profits @Rs.10,000/- per month but counsel
for appellant states that at the most, appellant can pay mesne
profits @Rs.3,000/- per month. Despite giving opportunity, both
parties have not reached on any consensus amount of mesne
profits and have jointly prayed to fix the reasonable amount of
mesne profits by the Court.
19. This Court, keeping in mind the proposition of law as
expounded by the Hon'ble Supreme Court in case of Atma Ram
Properties (supra) and after appreciating the size, use and
location of suit shop as well as respective documents produced by
both parties, deems it just and proper that the possession of
appellant over the suit shop deserves to be protected during the
course of first appeal subject to payment of mesne profits
@Rs.5,000/- per month payable by appellant to respondent No.3.
The mesne profit would be payable from the date of impugned
judgment i.e. 20.10.2022 onwards, during the course of first
appeal.
(7 of 7) [CFA-712/2022]
20. Respondent No.3 may furnish his bank account details within
a period of two weeks on record and may also apprise to the
appellant, in order to deposit the mesne profits in his bank
account, failing which appellant may deposit before the trial court.
Respondent No.3 would also furnish a written undertaking
supported with his affidavit, before this Court within a period of
two weeks that in case the appellant succeeds in the first appeal
and impugned decree for possession is set aside, he will refund
the amount of mesne profit to the appellant with interest @6%
per annum.
21. As a result, the execution of impugned decree for possession
dated 20.10.2022 shall remain stayed and appellant shall not be
dispossessed from the shop in question, subject to payment of
mesne profits by appellant to the respondent No.3 @Rs.5,000/-
per month, payable w.e.f. the date of impugned judgment i.e.
20.10.2022 onwards continually during the course of first appeal.
Mesne profits for the month of October, 2022 and November, 2022
may be paid within one month from today and from December,
2022 onwards, mesne profits would be paid by 10 th day of next
succeeding month. Both parties are also restrained not to create
any third party right or interest in the suit shop during the course
of first appeal.
22. In case of default in payment of mesne profit for three
consecutive months, respondent No.3 would be at liberty to move
application for vacation of the stay order.
23. The stay application stands disposed of.
(SUDESH BANSAL),J
SAURABH/53
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