Jitendra Kumar Sharma S/O Shri ... vs Govind Narain Sharma S/O Shri ...
2022 Latest Caselaw 7389 Raj/2

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

              SB CIVIL MISC. APPLICATION No.1/2022
               in (S.B. Civil First Appeal No.345/2021)

 Jitendra Kumar Sharma S/o Shri Govind Narain Sharma, Aged About
 43 Years, R/o Plot No. 11, Govind Nagar (East), Amer Road, Jaipur
 (Raj.)
                                                                     ----Appellant
                                      Versus
 1.      Govind Narain Sharma S/o Shri Ramkishor Sharma, At Present
         Residing At Plot No. 1, Ashok Vihar, Jagatpura, In Front Of
         R.b.i. Colony, Police Station Pratap Nagar, Jaipur (Raj.)
 2.      Prem Devi Sharma W/o Shri Govind Narain Sharma, R/o Plot
         No. 11, Govind Nagar (East) Amer Road, Jaipur (Raj.) Ex Party
         Date 24-10-2019
 3.      Giriraj Kishor Sharma S/o Shri Govind Narain Sharma, R/o Plot
         No. Ashok Vihar, Jagatpura, In Front Of R.b.i. Colony, Police
         Station Pratap Nagar, Jaipur (Raj.)
                                                                  ----Respondents

For Appellant(s) : Mr. J.P. Goyal, Sr. Advocate with Ms. Jyoti Swami For Respondent(s) : Mr. Peush Nag

HON'BLE MR. JUSTICE SUDESH BANSAL Order 21/11/2022

The matter comes up on an application (1/30-4-2022) for grant of

mesne profits to respondent defendant Govind Narain, who had succeeded

before the trial court vide judgment dated 2-9-2021, passed by Additional

District Judge No.7, Jaipur Metropolitan, which judgment has been stayed by

this court in the first appeal vide order dated 4-3-2022.

2. The facts of the case are that vide judgment dated 2-9-2021 the trial

court while dismissed the appellant-plaintiff's suit for partition and

permanent injunction decreed the counter claim of respondent defendant

Govind Narain for possession of the property in issues. The plaintiff was also

directed to remove the pillar and other possession from ground floor and

first floor and to hand over possession to defendant. Till handing over

(2 of 4) [CFA-345/2021]

possession of the portion to defendant the plaintiff was directed to pay

mesne profits to defendant Rs.100/- per month from April, 2019. Since,

execution of the judgment has stayed, the defendant has filed the present

application.

3. It has been submitted that there is finding against the plaintiff that he

is a trespasser and continues in use and occupation of the suit property,

therefore the trial court has fixed the mesne profits Rs.100/- per month

from April, 2019. It has been submitted that the suit property, which is in

use and occupation of the plaintiff can carry much rent and a prayer for

mesne profits was made for Rs.10,000/-, but due to escalation in prices and

increase in the market value of suit property the mesne profits should be

Rs.25,000/- per month, but now due to interim order dated 4-3-2022 the

plaintiff is allowed to be in use and occupation of the property further,

therefore mesne profits should be fixed now as Rs.37,000/-. The defendant

has placed on record the valuation report and submitted that property of

such valuation can fetch rent of about Rs.25,000/-. Counsel for defendant

submitted that rent in vicinity ranges about Rs.25,000/- per month. The

defendant has also placed on record his expenses for maintaining his

parents of spending Rs.10,000/- per month, while the plaintiff is not

spending any money for meeting expenses of parents. Similarly has stated

about criminal activities by plaintiff, for which criminal cases has also been

registered against plaintiff. Counsel has submitted that while staying the

operation of the impugned judgment and allowing plaintiff to be in use and

occupation of the suit property, a reasonable condition may be imposed by

fixing suitable and reasonable amount of mesne profits and prayed to fix it

as Rs.37,000/- per month.

(3 of 4) [CFA-345/2021]

4. The plaintiff filed reply to application and opposed the same. It has

been submitted that the valuation report contains value of whole property

and the value of the portion in possession of plaintiff is only Rs.11,138/- as

such the mesne profits as prayed for cannot be fixed. The plaintiff submitted

that he is in possession of one room and kitchen out of six rooms, two big

hall on ground floor, as such the said portion can fetch rent only of

Rs.1000/- per month. It has been further submitted that portion on first

story was constructed by plaintiff and no expense was incurred by

defendant for which no mesne profit can be fixed. As such a prayer has been

made to dismiss the application.

5. Heard learned counsel for parties on the application for mesne profits

filed defendant, who had succeeded before the trial court and perused the

material available on record.

6. Having heard learned counsel for parties this court is of the opinion

that admittedly the defendant succeeded before the trial court and vide

judgment dated 2-9-2021 while the plaintiff has been directed to hand over

vacant possession of the suit property, mesne profits has been fixed from

April, 2019. This court in first appeal vide order dated 4-3-2022 has stayed

the execution of the judgment. In such circumstances, to maintain balance

of equity and interest of justice between parties while granting stay in

favour of one party interest of other party can be safeguarded under Order

41 Rule 5 CPC. The amount of mesne profits should be fixed in view of the

valuation of the property and prevalent rent in the concerned area/ locality.

7. Keeping in mind the ratio of judgment of the Apex Court in Atma Ram

Properties (P) Ltd. Vs. Federal Motors (P) Ltd. [(2005)1 SCC 705] and taking

into consideration the valuation of room and kitchen in possession of

plaintiff, its use for residential purpose, location and nature of construction,

(4 of 4) [CFA-345/2021]

according to document of valuation, photographs etc., placed on record as

also the relationship of father and son, between the parties, mesne profit is

determined @ Rs.5000/- payable during the course of first appeal to retain

possession by plaintiff as per stay order. It is made clear that mesne profits,

will increase 5% every year, on the basic amount of Rs.5000/-, during the

course of appeal.

8. As a result the amount of mesne profits payable by plaintiff, the

judgment-debtor, to defendant, the decree holder, is fixed at Rs.5,000/- per

month from 30-4-2022, the date of filing the application for enjoyment, use

and occupation of the suit property during pendency of the first appeal. The

amount of mesne profits Rs.5000/- commencing 1 st December, 2022 shall

be paid be 10th of each month. The amount of mesne profit Rs.5000/- shall

increase by 5% every year commencing from 1-12-2022 during the course

of appeal. The appellant plaintiff is also directed to pay the arrears of mesne

profits @ Rs.100/-, as directed by the trial court from April, 2019 to March,

2022 and Rs.5000/- from April, 2022 to November, 2022, within a period

of two months from today. In the event of two consecutive default in paying

mesne profits or the payment of arrears as directed, the interim order dated

3-4-2022 shall be liable to be vacated on an appropriate application being

filed. Respondent- defendant may provide his bank account details to

plaintiff-appellant within a period of two weeks, so as to deposit/ pay the

mesne profits in the bank account.

8. Accordingly, the application stands disposed of.

9. Stay application, if pending, also stands disposed of.

(SUDESH BANSAL),J

Arn/58

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