JUDGMENT : The plaintiff Dr. Chunni Lal Talesara filed a suit for partition on 10.8.1993 seeking partition of suit immovable properties claiming the properties to be belonging to the Hindu Undivided Family of his father Late Shri Laxmi Chand Talesara against his four brothers including heirs of his two brothers claiming 1/5th share in the suit properties. The suit properties were indicated in three schedules ‘A’, ‘B’ & ‘C’ filed with the plaint. After trial, the Additional District Judge, Nathdwara passed a preliminary decree on 5.2.2003 and held plaintiff entitled to 1/5th share in four properties i.e. (a) four storied house at Mohalla Brajpura, Nathdwara, (b) three storied shop at Mohalla Chopati, Nathdwara, (c) another shop at Mohalla Chopati, Nathdwara and (d) Agricultural land and well ad measuring 10 Bigha 18 Biswa at Village Odan, Tehsil Nathdwara and rejected the suit qua the rest of the properties. Feeling aggrieved, plaintiff Dr. Chunni Lal filed S.B. Civil First Appeal No. 171/2003 alongwith application seeking interim relief in the nature that the respondents be restrained from dealing with the suit properties and a direction to maintain status quo. In the first appeal few respondents led by Rajendra Talesara filed cross-objections being S.B. Civil Cross Objection No. 2/2007. After passing of the preliminary decree, final decree proceedings were initiated by plaintiff Dr. Chunni Lal and the trial court after getting Commissioner’s Reports dated 1.10.2003 and 22.9.2004 passed a final decree on 29.11.2005, inter-alia directing (a) partition of the four storied house by way of handing over an area of the house having construction ad measuring 290.6 Sq.fts., (b) delivery of possession one of the shop situated at Chopati Bazar, Nathdwara, and (c) Partition of Agricultural land by delivering possession of land in two Khasra ad measuring 2 Bigha 4 Biswa and 1/10th share in the well. Feeling aggrieved, the defendant – Chatarlal filed S.B. Civil First Appeal No. 76/2006 against the final decree dated 29.11.2005. By order dated 14.2.2006 execution of the decree passed by the trial court was ordered to be stayed. However, on an application filed by the respondent – Dr. Chunni Lal Talesara seeking recall of the order dated 14.2.2006 on account of his caveat not having been dealt with by the office, by order dated 25.7.2006, the interim order dated 14.2.2006 was recalled. Where after on 18.8.2006, execution was again stayed by this Court pending service on other co-respondents. However, on an application filed by the respondent – Dr. Chunni Lal Talesara seeking recall of the order dated 14.2.2006 on account of his caveat not having been dealt with by the office, by order dated 25.7.2006, the interim order dated 14.2.2006 was recalled. Where after on 18.8.2006, execution was again stayed by this Court pending service on other co-respondents. After completion of service on all the respondents in both the appeals being SBCFA No.171/2003 and SBCFA No.76/2006 the parties were heard for final order on stay applications. By order dated 23.5.2014, both the parties were directed to place on record the expected mesne profit / income of the suit properties alongwith supporting evidence for the purpose of just disposal of the stay applications. Both the parties have filed their respective affidavits in this regard. It is submitted by learned counsel for the appellant-defendant that the final decree passed by the trial court deserves to be stayed as the trial court ignored the practical aspect while ordering division of the residential house by metes and bounds resulting in disruption of the residents therein and the plaintiff is a resident of Delhi, who even otherwise is not likely to utilize the said house. It is further submitted that the appellant is doing business at the shop situated at Chopati which has been allotted to the plaintiff resulting in deprivation of livelihood to the appellant and the partition is highly improper. Further if during the pendency of the appeal, the decree passed by the trial court is not stayed, the very purpose of filing appeal would be frustrated. Learned counsel for the plaintiff vehemently opposed the grant of any interim relief. Further if during the pendency of the appeal, the decree passed by the trial court is not stayed, the very purpose of filing appeal would be frustrated. Learned counsel for the plaintiff vehemently opposed the grant of any interim relief. It is submitted that the appellant has not approached this Court with clean hands and has suppressed material and relevant facts from this Court; the appellant is in possession of the other three storied shop as well from where he is carrying on his business alongwith his son and it cannot be said that the appellant would be deprived of his business; passing of interim order would deprive the plaintiff of the fruits of decree of the suit, which was filed way-back in the year 1993 and would result in frustration of very purpose of filing the suit; even otherwise the appellant cannot claim exclusive right to utilize the residential properties and the plaintiff is also entitled to stay at the family property as and when he visits Nathdwara. Making submissions pertaining to the award of mesne profit in case the final decree is stayed by this Court, it was claimed in the affidavit dated 25.7.2014 and was submitted on behalf of the plaintiff that the agricultural land yields income at Rs. 3,89,160/-per year and 1/5th share comes to Rs.77,832/-i.e. Rs.6,486/-per month, for the shops situated at Chopati Bazar for 1/5th share in the two shops ad measuring 905 Sq.fts. claiming mesne profits @ Rs.150/-per Sq.fts per month, the plaintiff has claimed mesne profit at Rs. 27,150/-per month and for the residential house a claim of Rs. 8,000/-per month for 1/5th share has been made. Responding to the claim of mesne profit, learned counsel for the appellant submitted an additional affidavit dated 9.9.2014 refuting the claim made by the plaintiff, it was submitted that the agriculture produce is restricted to 10 Qtls. of Corn and 12-15 Qtls. of Wheat and that also is undertaken based on ‘Sinjari’ i.e. being let out to person who delivers 50% of the total yield and it is submitted that the annual agriculture yield is not more than Rs.35,000/-. It was claimed that the shops are very old and has limited frontage and therefore, the same cannot be compared with shops situated at other places and claimed that the annual rent for the shops are less than Rs. It was claimed that the shops are very old and has limited frontage and therefore, the same cannot be compared with shops situated at other places and claimed that the annual rent for the shops are less than Rs. 5,000/-as 80% of the shops in and around the area belongs to Nathdwara Temple Trust which have been let out at very meager rent. Regarding the house, it is claimed, based on a rent note that a similar house has been let out for monthly rent of Rs. 2,625/-. The total mesne profits for the entire properties, forming part of the final decree is indicated at Rs. 70,000/-per year. A further submissions has been made that in view of the provisions of Section 2(12) CPC, the mesne profit can only be awarded if and only if the occupant is found in ‘wrongful possession’ and as it cannot be said that the appellant is in wrongful possession of the suit properties, the plaintiff is not entitled to any mesne profit at all. From the submissions made, it is apparent that on the one hand, the plaintiff has claimed mesne profit at Rs. 41,636/-per month, on the other hand, the appellant has indicated assumed mesne profit at Rs. 1,166/- per month. I have considered the rival submissions. From the record, the averments made in the pleadings and affidavits, it is apparent that while the appellant is in settled possession of the properties which forms subject matter of the final decree and have been directed to be partitioned, the plaintiff, who is aged about 80 years and is a resident of Delhi, and has apparently not expressed any intention to settle at Nathdwara, therefore, it would not be in the interest of justice to disturb the settled possession of the appellant during the pendency of this appeal and therefore, the final decree passed by the trial court deserves to be stayed. That brings the issue of award of mesne profit into focus. The terms rent, damages and mesne profit though at times are used inter-changeably, in fact, they all convey different meanings. That brings the issue of award of mesne profit into focus. The terms rent, damages and mesne profit though at times are used inter-changeably, in fact, they all convey different meanings. The payment made during the tenure of contractual tenancy by the tenant to his landlord is called ‘rent’, after quit notice from the date of termination of tenancy, the nature of the payment changes from the rent to ‘damages for use and occupation’ of the premises and after a suit for eviction is filed and if a decree for possession is passed, the nature then changes from damages to ‘mesne profit’, till the possession is handed over. Section 2(12) of the CPC has codified mesne profit to mean:- “ (12) “mesne profits” of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession;” The term mesne profit is used for damages for trespass, a wrongful act relating to immovable property. However, the scope of the term has since been enlarged to mean claim of profit from one whose possession though may not have originated as trespass, but is nevertheless wrong e.g. payment made by tenant after a decree for possession has been passed in favour of the landlord. The Hon’ble Supreme court in the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. : (2005) 1 SCC 705 endorsed the view of Nagpur High Court in Bhagwandas Lakhamsi v. Kokabai : AIR 1953 Nag 186 that after termination of the tenancy, the position of the tenant is akin to that of a trespasser and while summing up the Hon’ble Supreme Court inter-alia concluded as under:- “(1) While passing an order of stay under Rule 5 of Order 41 of the Code of Civil Procedure, 1908, the appellate court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably compensate the decree-holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed and insofar as those proceedings are concerned. Such terms, needless to say, shall be reasonable.” From the above, it is clear that after passing of a final decree, to the extent the decree is for handing over of possession in favour of the plaintiff/party, the possession of the defendant/other party becomes wrongful and he becomes liable to pay mesne profit for the period the execution of decree is stayed. Further dehors the provisions of Section 2(12) CPC, in terms of Order XLI, Rule 5 CPC also the appellant may be put to terms including payment of mesne profits during the pendency of the appeal. As such, the submission made by learned counsel for the appellant is rejected. As noticed hereinbefore, by way of final decree the plaintiff has been held entitled to 290.6 Sq.fts. area in house, the shop situated at Chopati Bazar and 2 Bigha 4 Biswa agriculture land alongwith 1/10th share in the well. The affidavits filed by both the parties have apparently no meeting point whatsoever regarding any of the properties, while the plaintiff has sought huge some of Rs. 41,636/-per month as his 1/5th share, which if translated into annual yield for all the properties sought to be partitioned comes to about Rs.25 lacs., which appears to be a fantastic amount for the nature and location of the properties. On the other hand, the annual yield of Rs. 70,000/-projected by the appellant is too meager to be believed, again looking at the nature and location of the properties. When during the course of arguments, this aspect was put to learned counsel for the parties, while counsel for the plaintiff conceded total monthly rent of about Rs. 17,000/-for two shops (Rs.10,000/-& Rs.7,000/-) and monthly rent of Rs. 5,000/-per month towards the rental value of the house. From the material placed on record specially the average yield per Htr. indicated by the Assistant Agriculture Officer (Annex.A/3), which has not been denied, it is apparent that the yield indicated by the appellant for the agriculture land is baseless Taking the available agriculture land for cultivation at 9 Bigha as indicated by ‘Sinjari’ in his affidavit (Annex.1), and the uncertainty involved in the agriculture production, the yield for the land in question is estimated at 78.75 Qtl. (2.25 Htr. X 35 Qtl.) for Corn and 123.75 Qtl. Wheat (2.25 Htr. X 55 Qtl.) and calculating the yield @ Rs.1,200/-per Qtl. / Corn and Rs.1,550/-per Qtl. (2.25 Htr. X 35 Qtl.) for Corn and 123.75 Qtl. Wheat (2.25 Htr. X 55 Qtl.) and calculating the yield @ Rs.1,200/-per Qtl. / Corn and Rs.1,550/-per Qtl. / Wheat and taking away the yield in money terms by 50% for the ‘Sinjari’ and 10% towards expenses, the total yield to the appellant is rounded off to Rs. 1,15,000/-p.a. and taking the 1/5th share of the plaintiff the same comes to Rs.23,000/-per year i.e. about Rs. 1,925/- per month. The rental value of the shop allotted to the plaintiff by way of final decree as submitted by learned counsel for the appellant is taken at Rs. 7,000/-per month (as suggested by counsel for the appellant) and looking to the total area of the house, the monthly rent is estimated at Rs. 10,000/-per month which brings the share of the plaintiff ad measuring 209.6 Sq.fts. at Rs.2,000/-per month. The total amount thus calculated qua mesne profit is, therefore, estimated at Rs.7,000 + 1,925 + 2,000 = 10,925/- rounded off to Rs.11,000/- per month. The amounts has been calculated keeping in view the principle that mesne profit is not what the decree-holder has lost by not being able to get possession but what the user of the property means to the defendant, who is in wrongful possession i.e. what the defendant might with ordinary diligence would receive from the property and the person in wrongful possession cannot be heard to say that he has not utilized the property, made no profits, no rent is being derived from the property in dispute. In the facts and circumstances of the case, it would be appropriate to award mesne profits w.e.f. the date of application was ripe for final orders. In view of the above discussion and analysis it is ordered that while the defendants-respondents in S.B. Civil First Appeal No.171/2003 shall maintain status quo regarding the title of the suit property during the pendency of the appeal, the final decree passed by the trial court shall remain stayed as ordered on 18.8.2006 subject to the appellant in S.B. Civil First Appeal No.76/2006 making payment of mesne profit to the respondent No.19 Dr. Chunni Lal Talesara @ Rs. 11,000/-per month. The amount would be payable w.e.f. 1st April, 2014. The arrears for the months of April, 2014 to September, 2014 would be payable within a period of six weeks from the date of order. Chunni Lal Talesara @ Rs. 11,000/-per month. The amount would be payable w.e.f. 1st April, 2014. The arrears for the months of April, 2014 to September, 2014 would be payable within a period of six weeks from the date of order. The amount of mesne profit from the month of October, 2014 shall be payable by 15th of each subsequent month. In case of three consecutive defaults on part of the appellant, the interim order shall stand vacated. The stay applications filed in S.B. Civil First Appeal No.171/2003 and S.B. Civil First Appeal No.76/2006 are accordingly disposed of. The appeals along with the cross-objections be listed for hearing in ‘due course’.