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2019 DIGILAW 2873 (RAJ)

Sobhagmal Sakhlecha v. Jeetmal Sakhlecha

2019-11-19

PRAKASH GUPTA

body2019
JUDGMENT : Prakash Gupta, J. 1. By this order, application under Order 41 Rule 5 read with section 151 CPC for grant of mesne profit as well as the stay application, both are being decided. 2. It is submitted by learned counsel for the respondents that the shop in question is admeasuring more than 300 sq. feet. The suit shop is situated in Dargah Bazaar, Ajmer which is main commercial area of the City of Ajmer. In the same vicinity another shop measuring 64 sq. feet was let out on 07.12.2009 for monthly rent of Rs. 9,000/- per month with enhancement of rent @ 20% after completion of every 5 years. Another shop situated in the same vicinity measuring 60 sq ft. was let out on 20.03.2014 for the monthly rent of Rs. 13,000/- per month. Likewise, another premises measuring 122 sq. Ft. was let out on 03.05.2005 for monthly rent of Rs. 9,900/- per month with escalation of 20% after every 5 years. It is submitted that the suit shop is situated near Dargah Khwaja Sahab where the rent of the shops is very high. The appellant is a trespasser after passing the decree of possession against him, but even then he is in use and occupation of the suit premise, as such, he is liable to pay mesne profits. Looking to the inflation of value of money and rise in the prices of commodities, the shop in question can fetch rent at present more than Rs. 50,000/- per month. It is prayed that mesne profit @ 50,000/- per month be fixed during the pendency of the appeal or the appellant may be directed to pay mesne profit at the prevailing market rate to compensate the respondents. 3. Learned counsel for the appellant opposed the submissions made by learned counsel for the respondents and contended that the learned trial court found the appellant to be in possession of the suit property from 1981 and there is no evidence or finding that possession was given to the appellant by any of the respondents. He has further submitted that the suit property was not purchased by the respondents, but was purchased by the father of the appellant and respondent Shri Mangal Chandji for a consideration of Rs. 15,000/- on 3.8.1974. He has further submitted that the suit property was not purchased by the respondents, but was purchased by the father of the appellant and respondent Shri Mangal Chandji for a consideration of Rs. 15,000/- on 3.8.1974. He has further submitted that a suit for partition is still pending adjudication before the competent court of law and there is no averment by the respondents that the appellant ever paid any amount in any manner to the respondents. He has further submitted that although a tenant cannot deny title of the landlord, but in the present case, it is admitted that suit property was purchased by the father during his lifetime as Karta of Joint Hindu Family and he was the one who paid entire amount by way of consideration. He has further submitted that Ex. A/3, A/5, A/6 and A/35 are the documents which go to show that on repayment of Rs. 15,000/- to Shri Sagarmal Bardia after selling shop of the appellant, it had been agreed even by the respondents that they had relinquished all the rights of other property in question. There is a family settlement on record. The legal position is thus quite clear that if parties set up competing title and the differences are resolved by the family settlement, the same does not fall within the mischief of Section 17 readwith Section 49 of the Registration Act. He has further submitted that there is no evidence on record to show that the respondents had put the appellant into possession, rather the respondent Jeetmal Sakhlecha was admittedly working in Mumbai since 1960 and his other brother is running a factory. He has further submitted that nearby shops are attracting rent somewhere between Rs. 13 to Rs. 70 in the vicinity. The appellant is sitting on the shop as owner right from 1981 after getting it vacated from the earlier tenant on the strength of sale deed dated 26.10.1967, therefore, the respondents are not entitled for the relief, as claimed. 4. Learned counsel for the appellant has placed reliance on the following judgments in support of his case: (i) Girraj Prasad vs. Smt. Tara Devi reported in (2017) 3 DNJ 1413 : 2018(2) RLW 1566 (ii) Subraya M.N. vs. Vitthala M.N. and others reported in (2016) 8 Supreme Court Cases 705 5. I have considered rival submissions made by learned counsel for the parties. 6. I have considered rival submissions made by learned counsel for the parties. 6. So far as the judgment passed in the case of Girraj Prasad vs. Smt. Tara Devi (supra) is concerned, it was not a case of wrongful possession, whereas the aforesaid suit was for the case pertaining to partition of the property and the suit was filed for recovery of possession and damages. Thus, the judgment passed in the case of Girraj Prasad vs. Smt. Tara Devi (supra) is not applicable to the facts of the instant case. 7. Similarly, the judgment passed by the Apex Court in the case of Subraya M.N. vs. Vittala M.N. and others (supra) also does not help the appellants for the reason that partition suit is pending between the parties. 8. In M/s. Atma Ram Properties (P) Ltd. vs. M/s. Federal Motors Pvt. Ltd. reported in 2005 (1) SCC 105, Hon'ble Apex Court has observed that while passing any interim order of stay, the appellate court is justified in putting the appellant tenant on terms and direct him to compensate the landlord by payment of a reasonable amount as mesne profit. Hon'ble Apex Court has summed up the conclusions 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 not 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 in so far as those proceedings are concerned. Such terms, needless to say, shall be reasonable; (2) In case of premises governed by the provisions of the Delhi Rent Control Act, 1958, in view of the definition of tenant contained in clause (1) of Section 2 of the Act, the tenancy does not stand terminated merely by its termination under the general law; it terminates with the passing of the decree for eviction. With effect from that date, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. With effect from that date, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree; (3) the doctrine of merger does not have the effect of postponing the date of termination of tenancy merely because the decree of eviction stands merged in the decree passed by the superior court at a latter date." 9. In Datu mal & Ors. vs. Seth Madan Gopal & Ors. reported in (2008) 1 WLN-464, it was held that the determination of the amount of mesne profit depends on the facts & circumstance of each case. The size and number of accommodation, location, nature of premises i.e. whether it is commercial or residential; the place where property is situated i.e. whether it is village or city or metropolitan city etc., are the guiding factors in an individual case for determining the mesne profits. 10. Coming to the facts of the instant case, it is also not in dispute that mesne profit @ Rs. 2000/- per month was determined in the year 2017. It is also not in dispute that tenanted property is being put to commercial use. Admittedly, the suit premises is situated on the main road in Dargah Bazar, Ajmer, which is a commercial area in the heart of the City of Ajmer. 11. The appeal has already been admitted. On account of occupying and using the shop in question, the appellant is required to compensate the respondents by making payment of reasonable mesne profits. 12. Looking to the over all facts of this case, which include size of the premises, its location as well as the present rent of the nearby shops, the application filed by the respondents deserves to be allowed and in view of the above, it would be reasonable to fix mesne profit @ Rs. 10,000/- per month from the date of filing of the application i.e. 21.5.2018 till the disposal of the appeal. All arrears of mesne profit up to November, 2019 shall be deposited in the Bank account of the respondents within a period of three months from today. 10,000/- per month from the date of filing of the application i.e. 21.5.2018 till the disposal of the appeal. All arrears of mesne profit up to November, 2019 shall be deposited in the Bank account of the respondents within a period of three months from today. It is made clear that from the month of December, 2019 the appellant shall deposit mesne profit at the said rate by 15th of every succeeding month in the Bank account of the respondents. The respondents shall furnish the details of their bank account to the appellant within 15 days from today. 13. Further, in case the appellant fails to deposit the amount of mesne profit in the bank account of the respondents as directed above and/or the appellant fails to make the payment of future mesne profit consecutively for four months, the respondents shall be free to execute the decree without further reference to the Court. 14. Further, the respondents shall furnish solvent security and undertaking to the effect that in case the appellant ultimately succeed in this appeal, the amount of mesne profit so received by the respondents, shall be paid to the appellant with 9% interest per annum. 15. The stay application and application for mesne profit are allowed accordingly and execution of the impugned decree is stayed, as indicated above.