Rajasthan High Court
Smt Vijay Kirti Rathore And Ors vs Swami Surjandas Trust on 25 February, 2022
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Misc. Stay Application No.1723/2018
In
S.B. Civil First Appeal No. 431/2018
Smt Vijay Kirti Rathore and Ors.
----Appellants/Defendants
Versus
Swami Surjandas Trust & Ors.
----Respondents/Plaintiffs
For Appellant(s) : Mr. Jag Mohan Saxena, Advocate
Mr. Bipin Gupta, Advocate
Mr. Parikshit Singh Shekhawat,
Advocate
Mr. Chinmay Saxena, Advocate
For Respondent(s) : Mr. Ashok Mehta, Sr. Advocate with
Mr. Mudit Singhvi, Advocate
HON'BLE MR. JUSTICE PRAKASH GUPTA
Order
Date of Order :: 25/02/2022
Learned counsel for the appellants-defendants submit
that in the impugned judgment and decree dated 25.1.2018 at
one place, the plaintiff-Trust was stated to be a 'private trust' but
while deciding issue no. 6A, it was mentioned as a 'Public Trust'. It
is further submitted that in view of Article 94 of the Limitation Act,
the suit has been treated within limitation, which is illegal. If it
was a private trust, then limitation to file the suit was 3 years. It
is further submits that merely on the basis of Will of Swami
Surjandas and Swami Laxmandas Chela, plaintiff Sunil Dasot had
no right in the trust property. They further submit that since the
appeal has already been admitted by this Court vide order dated
21.8.2019, stay order is required to be passed in this matter.
(2 of 3) [Stay Application No. 1723/2018 in CFA-431/2018]
On the other hand, learned counsel for the respondents
- plaintiffs have opposed the same and submit that the appellants-
defendants are having unauthorized possession over the Trust
property. They have no right to continue in possession of the Trust
property. They further submit that defendant no. 5 Ramdayal
Swami himself was not having any right to sell the trust property
on the basis of unregistered sale deed. They further submit that
decree for possession is in favour of the plaintiffs. The Trial Court
has awarded Rs. 10,000/- per month as mesne profit in favour of
the plaintiffs, but not a single penny has been given by the
defendants to the plaintiffs. Hence, no interim order is required to
be passed in favour of the defendants and their stay application
deserves to be dismissed.
Having regard to the submissions made by learned
counsel for the parties and taking into consideration the facts and
circumstances of the case and more particularly in view of the fact
that decree for possession has been granted in favour of the
plaintiffs, execution / operation of the impugned judgment and
decree dated 25.1.2018 passed by the Trial Court is stayed on the
condition that the appellants-defendants deposit all arrears of
mesne profit @ Rs. 10,000/- per month from 4.12.2006 till
January, 2022 with the Trial Court within two months from today
and from February, 2022 the appellants-defendants continue to
deposit the mense profit at the said rate by 15th of every
succeeding month with the Trial Court. In case the appellants-
defendants fail to deposit the amount of mense profit, as directed
above within the said period, the respondents-plaintiffs shall be
free to execute the decree without further reference to the Court.
(3 of 3) [Stay Application No. 1723/2018 in CFA-431/2018]
On deposition of the aforesaid amount, the
respondents-plaintiffs shall be at liberty to file an application for
disbursement of the amount as also to file an application for
enhancement of the amount of mesne profit.
In case the appellants-defendants fail to deposit the
amount of mesne profit within the aforesaid period and an
execution petition is filed to execute the impugned judgment and
decree and if the respondents-plaintiffs get the possession of the
suit property in execution proceedings, in that case, the
respondents-plaintiffs shall submit an undertaking before the
executing court within 7 days from the date of getting possession
to the effect that in case the appeal filed by the appellants-
defendants is ultimately allowed and the judgment and decree
passed by the trial court are reversed by this Court, the
respondents-plaintiffs would hand over the vacant and peaceful
possession of the suit property to the appellants-defendants,
failing which the respondents-plaintiffs would be liable to
contempt.
Both the parties are restrained to alienate, sell or
create third party rights in the suit property during the pendency
of the appeal.
Stay Application stands disposed of accordingly.
(PRAKASH GUPTA),J
DK/54
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