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2018 DIGILAW 1497 (RAJ)

Nemi Chand v. Suraj Devi Soni

2018-07-16

ARUN BHANSALI

body2018
JUDGMENT Arun Bhansali, J. - This appeal is directed against the judgment and decree dated 3.2.2018 passed by the Addl. District Judge No. 2, Bikaner ('the Trial Court'), whereby, the suit filed by the respondent-plaintiff for possession, has been decreed. 2. The Trial Court has passed decree for handing over the vacant possession of the suit premises, has ordered for payment of Rs. 700/- per month from 1.9.1986 and Rs. 1,500/- per month w.e.f. 13.3.2012 i.e. the date of filing of the suit as mesne profits. Further direction has been given that if the amount is not paid within two months, the plaintiff would be entitled to interest @ 9% per annum. 3. The counter-claim filed by the appellant for a sum of Rs. 20,000/- was decreed and rest of the counter claim was rejected. 4. Learned Counsel for the appellant, after arguing for some time, prays for some reasonable time to vacate the premises and submits that the award of mesne profit @ Rs. 700/- per month by the Trial Court is beyond the prayer made in the plaint. 5. Learned Counsel for the respondent does not oppose the submission made by learned Counsel for the appellant regarding grant of period of one year to the appellant to vacate the suit premises. 6. Having Considered the submissions made by learned Counsel for the parties, it is apparent from the copy of the plaint, which has been annexed by the appellant with the memo of appeal, that only prayer made by the plaintiff in the plaint pertained to award of mesne profit from the date of filling of the suit and, therefore, the award of mesne profit from 1.9.1986 by the Trial Court cannot be sustained. 7. Consequently, the appeal filed by the appellant is partly allowed. The judgment and decree dated 3.2.2018 passed by the Trial Court is modified to the extent that the appellant would hand over the vacant possession of the suit premises on or before 1.8.2019 and from the date of filling of the suit till handing over the vacant possession i.e. from 1.3.2002 to 1.8.2019, the appellant would pay mesne profit @ Rs. 1,500/- per month. The rest of the decree, wherein, the counter-claim of the appellant was decreed is sustained, the appellant will be free to adjust the sum of Rs. 1,500/- per month. The rest of the decree, wherein, the counter-claim of the appellant was decreed is sustained, the appellant will be free to adjust the sum of Rs. 20,000/-, which has been decreed in his favour, in the outstanding amount of mesne profit. The balance outstanding amount of mesne profit per month till 1.7.20018 shall be deposited within a period of one month in the saving bank account of the respondent, details whereof, would be supplied by learned Counsel for the respondent to learned Counsel for the appellant within a period of ten days from today. 8. The amount of mesne profit from 1.7.2018 to 1.8.2019 shall be deposited by 15th of each subsequent month and in case of failure to deposit the amount upto 1.7.2018 within one month or three consecutive defaults in payment of monthly mesne profit, the respondent would be free to execute the decree forthwith. 9. No order as to costs.