Ramnarayan S/O Shri Thakarsiram vs Ramsukh Raigar S/O Shri Ramdev ...
2022 Latest Caselaw 2125 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

             S.B. Civil First Appeal No.339/2019

Ramnarayan S/o Shri Thakarsiram & Anr.
                                                                      ----Appellants
                                   Versus
Ramsukh Raigar S/o Shri Ramdev Raigar & Ors.
                                                                    ----Respondents

For Appellant(s)         :     Mr. Hanuman Sharma
                               Mr. Mamraj Jat
For Respondent(s)        :     Mr. Devendra Kumar Bhardwaj



           HON'BLE MR. JUSTICE SUDESH BANSAL

                                    Order

Reserved On                                                     :    03/03/2022
Pronounced on                                                   : 10 March, 2022

This first appeal has been filed by appellants-plaintiffs

assailing the judgment and decree dated 19.03.2019 passed by

Additional District Judge No.2, Jaipur, District Jaipur in Suit

No.111/2017 (313/2008) whereby his suit for declaration and

permanent injunction has been dismissed however, counter claim

of respondents-defendants for possession has been decreed.

In the present case, appellants-plaintiffs filed a civil suit

seeking declaration of suit property in his possession and

consequentially to restrain respondents-defendants not to

interfere in their use and occupation of suit property. The

appellant filed civil suit based on patta No.97 dated 18.02.1991

issued by Gram Panchayat, Achrol in relation to the property

having an area of 51'x51' measuring 289 square yards.

(2 of 5) [CFA-339/2019]

Respondents-defendants submitted written statement and

filed counter claim for possession alleging inter alia that out of suit

property, two plots No.11 and 12 were allotted in the name of

Vimla Devi and Ramsukh Raigar by Suraj Pole Gate Grah Vikas

Sahkari Samiti Ltd. Jaipur (Raj.) and the respondents-defendants

are owners of both plots. It has been alleged that plots were in

possession of defendants but appellants-plaintiffs entered into

possession of plots by breaking wall, and respondents-defendants

asked for relief of possession.

The trial court, after appreciation of respective evidence of

both parties have concluded that the patta of appellants-plaintiffs

being patta No.97 dated 18.02.1991 issued by Gram Panchayat,

Achrol has already been declared as null and void. Whereas pattas

issued in favour of respondents-defendants by cooperative society

are valid. It has been concluded that possession of plaintiffs over

the plots of defendants is as trespasser. The trial court has

dismissed the plaintiffs' suit and decreed the counter claim of

defendants with a direction to plaintiffs to hand over vacant

possession of both plots to defendants vide judgment and decree

dated 19.03.2019. Hence this first appeal.

Heard counsel for both parties.

This first appeal is admitted for hearing. Having considered

the facts and circumstances of the case, it is hereby directed that

during pendency of first appeal, the execution of impugned decree

shall remain stayed and parties shall maintain status quo as to

alienation and possession of property in question.

(3 of 5) [CFA-339/2019]

Respondents-defendants have filed an application for mesne

profit to which the plaintiffs have filed reply.

The respondents-defendants have claimed mesne profits

@Rs.9,000/- per month for two plots Nos.11 and 12 for which

decree for possession has been passed in their favour.

Respondents-defendants have placed on record one rent

note dated 16.09.2020 to show that rent of a residential plot

having an area of 266.66 yard situated at Village Achrol Tehsil

Amer, District Jaipur was agreed @Rs.6/- per square ft. total

Rs.11,000/- per month. Respondents-defendants have also relied

upon the rent agreement of rooms of Kailash Hostel, claiming to

be situated nearby disputed plots and where one room in hostel

has been let out on rent @Rs.3,000/- and Rs.3,250/- per month.

On the contrary, appellants-plaintiffs have filed reply to

application and denied the claim of mesne profits. It has been

contended that pattas issued by cooperative society in favour of

respondents are without jurisdiction. Plaintiff are having

possession over the suit property as owner, therefore, no mesne

profits can be determined against them.

For the purpose of determination of mesne profits,

guidelines and principles laid down by Hon'ble the Supreme Court

in the case of Atma Ram Properties (P) Ltd. vs. Federal

Motors (P) Ltd. [(2005) 1 SCC 705] may be taken into

consideration.

The trial court has observed that the possession of plaintiff

over the plots allotted to defendants is as trespasser and

(4 of 5) [CFA-339/2019]

defendants are entitled to get over possession of their plots.

Thus, once the execution of decree for possession has been

stayed, it is equitable to allow some mesne profit to the decree

holder, during pendency of appeal. In order to determine the

mesne profit, the rent deed provided by respondents may not be

treated as conclusive evidence, as their location size, use and

situation of premises are different from plots in question herein.

None of parties have produced any rental valuation report. Over

the property in question, houses of plaintiffs are constructed and

the same is in the nature of residential. Having considered the

location of plot, their nature of use as residential, size and

applying the robust common sense as well as the attending

circumstances, this Court deems it just and proper to determine

the mesne profit @Rs.4,000/- per month for two plots, of which

decree has been passed in favour of respondent-decree holders.

In case of Deendayal Vs. Nrapendra Kumar [Civil

Second Appeal No.103/2017] vide order dated 28.02.2022 has

considered that since the first appeal/second appeal remains

pending for years together and therefore, the issue of

enhancement of mesne profits in future has also been considered

and it has been observed that mesne profit should be increased by

5% every year.

Accordingly, the application for mesne profit is disposed of

with following directions:-

"(i) appellants-plaintiffs shall pay the mesne profit @Rs.4,000/- per month w.e.f. the date of application i.e. 30.09.2020 and on completion of one year, the

(5 of 5) [CFA-339/2019]

mesne profit would increase by 5% every succeeding year until the decision of appeal on merits.

(ii) For payment of arrears from October, 2020 to March, 2022, three months time is granted and from April, 2022 onwards, mesne profits shall be paid by 10th day of each month.

(iii) Respondents-decree holders would furnish a written undertaking before this Court within a period of four weeks that in case appellants-plaintiffs succeed in present appeal, they would return the amount of mesne profits so received from appellants- plaintiffs.

(iv) On furnishing the bank account by respondents- decree holders, plaintiffs shall deposit mesne profits in the given bank account.

(v) In case, appellants-plaintiffs would not pay mesne profits as ordered hereinabove, respondents-decree holders would be at liberty to move application for vacation of stay order and to get possession of plots during appeal, for which decree has been passed in their favour by the trial court."

With aforesaid observations, the stay application and

application for mesne profit stand disposed of.

(SUDESH BANSAL),J

SAURABH

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