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2017 DIGILAW 1542 (RAJ)

Girraj Prasad v. Tara Devi

2017-07-12

PRAKASH GUPTA

body2017
ORDER : 1. The matter has come up on an application filed by the respondents-plaintiffs under Section 151 CPC. for grant of mesne profit @ Rs.90,000/- per year for the use and occupation of the disputed property which includes land and building. 2. Briefly, stated the facts of the case are that the respondents-plaintiffs instituted a civil suit for partition, possession of the property in dispute and for grant of injunction. The trial court vide judgment dated 30th April, 2008 decreed the suit of the respondents-plaintiffs and directed to prepare preliminary decree for partition and restrained the appellants-defendants from raising further construction over the disputed property. Civil Regular Appeal filed by the appellants-defendants in the appellate court below came to be dismissed vide judgment and decree dated 13th May, 2014. Against which the appellants-defendants have preferred the present second appeal. 3. This Court vide order dated 9th October, 2014 admitted the appeal on the substantial questions of law formulated thereunder and simultaneously, passed a stay order directing the parties to maintain status quo as regards possession and alienation or creating third party interest in the property. However, the trial court has been permitted to prepare final decree but execution of the same has been stayed till final disposal of the appeal with liberty to the respondents to file any application as may be permissible under the law. 4. As stated hereinabove, the respondents-plaintiffs have filed the application for grant of mesne profit with the averments that the defendants-appellants are enjoying the property in whole in respect of which partition has been granted in favour of the respondents-plaintiffs. Therefore, they are entitled for grant of mesne profit @ Rs.90,000/- per year. In support of their claim, the plaintiffs-respondents have annexed to the application certain documents along with valuation of the property, which according to the valuer is Rs.18.11 Lacs. 5. A reply to the application has been filed by the appellants-defendants wherein preliminary objections are raised as to the maintainability of the application. In view of Section 2 sub-clause (12) and Order 20 Rule 12 CPC., the present application is not maintainable. As in the suit mesne profit was not claimed, the trial court did not frame any issue regarding grant of mesne profit. No application was also filed before the trial court under Order 14 rule 5 CPC seeking amendment to the issues. As in the suit mesne profit was not claimed, the trial court did not frame any issue regarding grant of mesne profit. No application was also filed before the trial court under Order 14 rule 5 CPC seeking amendment to the issues. It is further averred that the appellants-defendants are not trespassers and their possession over the disputed property is legal. In addition to it, the contents of the application are also disputed. 6. Heard learned counsel for the parties. 7. It is submitted by Shri Bipin Gupta, learned counsel for the applicants that the learned trial court passed a decree of partition with regard to suit property holding that the respondent-plaintiff is entitled to get half of the share therein and the regular appeal filed by the appellants-defendants challenging the judgment of the trial court was dismissed by the appellate court. Now the appellants-defendants have approached this Court by way of second appeal and because of the stay order dated 9th October, 2014 the appellants-defendants have been enjoying the entire property and causing financial loss to the respondents-plaintiffs and they are also deprived of the fruits of the decree. It is also submitted by him that as per the valuation report of the valuer, the value of the property is Rs.18.11 Lacs. Therefore, the respondents-plaintiffs are entitled for grant of mesne profit @ Rs.90,000/- per annum. 8. In support of claim of the respondents-plaintiffs for grant of mesne profit, learned counsel placed reliance on the judgment of the Supreme Court in Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. (2005) 1 SCC 705 , Anderson Wright & Co. vs. Amar Nath Roy & Ors. (2005) 6 SCC 489 and Pabbathi Venkataramaiah Chetty vs. Pabbathi N. Rathnamaiah Chetty & Ors. (2007) 3 SCC 151 . 9. On the other hand, it is submitted by Shri RK Daga, learned counsel for the appellants-defendants that the suit filed by the respondents-plaintiffs was only for partition, possession of the suit property and seeking injunction against the defendants and no mesne profit was claimed in the suit and thus, no issue regarding mesne profit was framed. No application was filed before the trial court under Order 14 Rule 5 CPC seeking amendment to the issues. As such, provisions of Section 2 sub-clause 12 and Order 20 rule 12 CPC are not applicable. No application was filed before the trial court under Order 14 Rule 5 CPC seeking amendment to the issues. As such, provisions of Section 2 sub-clause 12 and Order 20 rule 12 CPC are not applicable. It is also submitted by Shri Daga that the defendants-appellants are not tress passers and their possession over the property in dispute is a legal and no financial loss is being caused to the plaintiffs-applicants. 10. On the strength of the above submissions learned counsel for the defendants-appellants has prayed that the application filed by the plaintiff-respondents is liable to be dismissed. 11. In support of his submissions, Mr. RK Daga, learned counsel for the defendants-appellants placed reliance on the judgment of the Orissa High Court in Mst. Kainta Meherani vs. Damru Mehar & Ors. AIR 1964 ORISSA 94 (V 51 C 39), judgment of the Madhya Pradesh High Court in Mahadeo Rao Vithobaji Parate vs. Laxman Parasram AIR 1973 MP 17 , and the judgment of the Patna High Court in Shambhu Dayal Khetan & Ors. vs. Motilal Murarka & Ors. AIR 1980 Patna 106. 12. Before delving upon the merits of the case, it will be appropriate for this Court to consider the case law cited at the bar by learned counsel for both the parties. 13. Atmaram Properties’s case (supra) was a case under the Delhi Rent Control Act. In this case, after considering the provisions of Order 41 rule 5 CPC and also its various earlier judgments, Hon’ble the Supreme Court held as under:- “18. That apart, it is to be noted that the appellate Court while exercising jurisdiction under Order 41 Rule 5 of the Code did have power to put the tenant-appellant on terms. The tenant having suffered an order for eviction must comply and vacate the premises. His right of appeal is statutory but his prayer for grant of stay is dealt with in exercise of equitable discretionary jurisdiction of the appellate Court. While ordering stay the appellate Court has to be alive to the fact that it is depriving the successful landlord of the fruits of the decree and is postponing the execution of the order for eviction. While ordering stay the appellate Court has to be alive to the fact that it is depriving the successful landlord of the fruits of the decree and is postponing the execution of the order for eviction. There is every justification for the appellate Court to put the tenant-appellant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. In Marshall Sons & Co. (I) Ltd. Vs. Sahi Oretrans (P) Ltd. & Anr., (1999) 2 SCC 325 , this Court has held that once a decree for possession has been passed and execution is delayed depriving the judgment-creditor of the fruits of decree, it is necessary for the Court to pass appropriate orders so that reasonable mesne profits which may be equivalent to the market rent is paid by a person who is holding over the property.(emphasis supplied by me) To sum up, our conclusions are:- (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 decreeholder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed and in so far as those proceedings are concerned. Such terms, needless to say, shall be reasonable;” 14. In Anderson Wright & Co. (supra), an interim application was filed by the respondents seeking that the appellants be directed to pay or deposit, month by month, a fixed amount by way of mesne profits as a condition precedent to the order staying execution of decree for eviction of the appellants. Considering the law laid down in the earlier judgment in Atma Ram Properties (P) Ltd. (supra) and taking an overall view of the material made available by the parties, their Lordships of the Supreme Court directed the appellants to pay mesne profits/compensation for the use and occupation of the premises @ Rs.15/- per sq. ft. subject to final determination of the same by competent forum. 15. ft. subject to final determination of the same by competent forum. 15. In case of Pabbathi Venkataramaiah Chetty (supra), in appeal before the High Court against the final decree of partition, appellant sought interim order of stay of execution of the decree for dispossession from the commercial building wherein he was running a lodge. High Court directed that the appeal itself be listed for final hearing after the vacations and till then the building shall not be demolished. In appeal before the Supreme Court against the interim order of the High Court, appellant submitted that an order of stay of demolition would not protect his right, whereas respondent submitted that although he was entitled to two-third share in that building, he was kept out of possession thereof and not receiving any income therefrom. After considering the provisions of Order 39 Rule 1 and Order 41 Rule 5 it was held that stay of dispossession from the premises where appellant was running the lodge must be granted as appeal against final decree may become infructuous if stay of dispossession was not granted but at the same time interest of respondent also required to be protected. Hence, in the interest of justice, the Supreme Court modified High Court’s Order by directing that there shall be a stay of dispossession of appellant paying Rs.25,000/- per month (being the estimated minimum monthly loss) to the respondent during pendency of the appeal. 16. In Mahadeo Rao Vithobaji Parate (supra), the plaintiff a non-alienating coparcener in a joint Mitakshara family brought a title suit for declaration that the alienation of family properties effected by other members was not binding on him for want of legal necessity and also claimed possession from the alienees. The suit was finally decreed by the High Court on 23.3.1968. The plaintiff thereupon filed a suit for mesne profits for three years prior to the decree of the High Court during which period the case remain pending in the High Court. It was held that the purchaser could be deemed to be lawfully in possession until it was finally held by the High Court in the Title Suit that the alienation was not binding on the plaintiff i.e. until 23.3.1968 and the plaintiff could only claim his share of profits and nothing more. It was held that the purchaser could be deemed to be lawfully in possession until it was finally held by the High Court in the Title Suit that the alienation was not binding on the plaintiff i.e. until 23.3.1968 and the plaintiff could only claim his share of profits and nothing more. In such circumstances, the mesne profits must mean that which the plaintiff has lost by reason of the wrongful alienation by the other coparceners, and not the profits actually made by the purchasers. The purchasers were not bound to hand over to the plaintiff the profits actually received towards whom they owed no fiduciary duty. The term “mesne profits” has been explained in para No.7 of the judgment as under:- “7. The term "mesne profits" may be used to denote compensation (that is to say damages) recoverable from a person who has been in wrongful possession, and in such circumstances means that which the plaintiff has lost by reason of the tortious act of the defendant, and is not the profit actually made by the defendant but that which the plaintiff might reasonably be expected to have made, had his possession not been wrongfully disturbed. On the other hand, it may be used in the sense of the profits actually received by the defendant which, he is bound to hand over to the plaintiff towards whom he owes some fiduciary duty. As already stated, the sale in favour of the purchaser is voidable and not void. Therefore, his possession is not wrongful from the date of purchase.” (emphasis supplied by me) 17. In the case of Shambhu Dayal Khetan (supra) a Division Bench of the Patna High Court after considering the provisions of Sections 2(1) and 151 CPC, held that possession of co-sharer cannot be wrongful within Section 2 (12), therefore, one cannot claim mesne profits against the other. In paragraph No.5 of the judgment, the Division Bench observed as under:- “5. The points raised by learned counsel for the parties were certainly interesting but unfortunately they do not arise for consideration in this case. On the case of the petitioners themselves, they were co-sharers along with opposite party Nos. 1 to 3. The grievance of the petitioners is that opposite party Nos. The points raised by learned counsel for the parties were certainly interesting but unfortunately they do not arise for consideration in this case. On the case of the petitioners themselves, they were co-sharers along with opposite party Nos. 1 to 3. The grievance of the petitioners is that opposite party Nos. 1 to 3 were in possession of the six rooms in spite of the order dated 10-10-1969 passed by the court below and on that basis as stated above, they claim mesne profits on the ground that they were deprived of the enjoyment of those six rooms to which they were entitled to in pursuance of the aforesaid order. But that alone, in our opinion, is not sufficient to entitle the petitioners to get mesne profits from opposite party Nos. 1 to 3. "Mesne profits" has been defined in sub-section (12) of Section 2 of the Code of Civil Procedure, which is as follows:- "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." A bare reading of this sub-section shows that a person in wrongful possession alone is liable to pay mesne profit. Was the possession of opposite party Nos. 1 to 3 wrongful ? The answer to that is certainly in the negative because they were, according to the case of the petitioners themselves, co-sharers of the six rooms. It is settled that possession of a co-sharer can never be wrongful as he had right and interest in every inch of the undivided property. It is not said by the petitioner that the property has been divided by metes and bounds and these six rooms have been allotted to his share. All that is said is that the petitioners are entitled to exclusive possession of these six rooms on account of the orders passed on 10-10-1969. But this order cannot be construed as to deprive opposite party Nos. 1 to 3 from enjoyment of the undivided property. For these reasons, in our view, the petitioners cannot claim mesne profits against opposite party Nos. 1 to 3. But this order cannot be construed as to deprive opposite party Nos. 1 to 3 from enjoyment of the undivided property. For these reasons, in our view, the petitioners cannot claim mesne profits against opposite party Nos. 1 to 3. The application therefore, fails and is dismissed; but in the circumstances there will be no order as to costs.(emphasis supplied by me) I have considered the rival submissions made by the learned counsel for the parties. Section 2(12) of the C.P.C. defines mesne profits as under: (12) "mesne profit" 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. Order 20 Rule 12. Decree for possession and mesne profits: (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree, (a) for the possession of the property; (b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent; (ba) for the mesne profits or directing an inquiry as to such mesne profits (c) directing an inquiry as to rent or mesne profits from the institution of the suit until: (i) the delivery of possession to the decree-holder, (ii) the relinquishment of possession by the judgment-debtor with notice to the decree- holder through the Court, or (iii) the expiration of three years from the date of the decree, whichever event first occurs. (2) Where an inquiry is directed under Clause (b) or Clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry. 18. From the aforesaid provisions, it appears that wrongful possession of immovable property by the occupant is the essence of a claim for mesne profits and cause of liability of the occupier. In other words, accrual of right to have mesne profits presupposes a wrong, and possession of the person has to be found illegal or wrongful 19. 18. From the aforesaid provisions, it appears that wrongful possession of immovable property by the occupant is the essence of a claim for mesne profits and cause of liability of the occupier. In other words, accrual of right to have mesne profits presupposes a wrong, and possession of the person has to be found illegal or wrongful 19. In the present case, the original suit was for the partition of the joint property and it is an admitted fact that pending the appeal, the disputed property is in the possession of the defendant who is a co-sharer. Thus the matter at hand squarely covered by the judgment in Shambhu Dayal Khetan’s case (supra) wherein it has been held that the possession of the co-sharer is not wrongful and co-sharer has right and interest in every inch of the undivided property until it is divided by metes and bounds. It has further been held that by definition mesne profit can be claimed from a person who is in wrongful possession. Admittedly, the parties are the co-sharers and the appellants are not getting any financial benefit out of this property. It is settled law that a co-sharer has right over every inch of the common property. Since the appellants are not in wrongful possession of the property, therefore, a claim for mesne profit is not maintainable. 20. As such, I find no merit in this application. Hence the same is dismissed as devoid of merits.