JUDGMENT : NARENDRA SINGH DHADDHA, J. 1.The present civil regular first appeal has been filed by the defendants-appellants (for short ‘the defendants’) under Section 96 read with Order 41 Rule 1 of the Code of Civil Procedure against the judgment and decree dated 14.02.2006 passed by Additional District and Sessions Judge (Fast Track No. 1), Jhunjhunu (for short the ‘trial Court’) in civil suit No. 31/1995 titled as “Shri Gangaramji Charitable Trust Vs. So-called Moorti Sankat Mochan Balaji and Ors.” whereby the said court decreed the suit filed by the plaintiffs-respondents (for short ‘the plaintiffs’). S.B. Cross Objection (Civil) No. 30/2009 has been filed by the plaintiffs against the judgment and decree dated 14.02.2006 passed by the Additional District Judge (Fast Track) No. 1, Jhunjhunu, whereby the relief sought for by the plaintiffs for granting mesne profit has been dismissed. 2. Brief facts of the case are as under:- 3. Plaintiffs filed a civil suit before the trial court for eviction, permanent injunction and for mesne profit against the defendants with the prayer that defendants be directed to handover the possession of the plot Nos. 1 and 2 to the plaintiffs as mentioned in the plaint site plan of which was also annexed therewith which included the constructed house, shops, Balaji ka Mand etc. It was also prayed that direction be given to the defendants not to interfere in the plaintiffs’ possession over the said plots, shops etc. and to remove encroachment so made and also to grant Rs. 4,000/- for damages and Rs. 2,000/- per month for use and occupation charges till handing over the possession of the suit property to the plaintiffs. Plaintiffs in their suit mentioned that Smt. Banarsi Devi was the owner of Khasra Nos. 1215 admeasuring 2 bigah 8 biswa, khasra No. 1216/1 admeasuring 4 bigah, khasra No. 1216/2 admeasuring 1 bigah 12 biswa, 1216/3 admeasuring 4 bigah 5 biswa and khasra No. 1216/1647 admeasuring 7 biswa and khasra No.1217 admeasuring 2 bigah 16 biswa. She through her Power of Attorney Holder Ram Kishore sold certain land to Smt. Chander Kala wife of Sh. Radhey Shyam by registered sale-deed dated 23.05.1973 and handed over the possession to Smt. Chander Kala. Thereafter, Smt. Chander Kala through her Power of Attorney Holder Sh. Radhey Shyam sold the disputed plots including house, shops as well as Balaji ka Mand to Shri Gurudayal and Sh. Radhey Shyam by registered sale-deed dated 23.05.1973 and handed over the possession to Smt. Chander Kala. Thereafter, Smt. Chander Kala through her Power of Attorney Holder Sh. Radhey Shyam sold the disputed plots including house, shops as well as Balaji ka Mand to Shri Gurudayal and Sh. Prithvi Singh by a registered sale deed dated 03.09.1984 for a sale consideration of Rs. 45,000/- and handed over the possession to Shri Gurudayal and Prithvi Singh. Later on Prithvi Singh and Shri Gurudayal sold the disputed land to Shri Gangaramji Charitable Trust vide registered sale deed dated 06.06.1995. 4. The defendants earlier filed a civil suit before the Court of Civil Judge (Senior Division), Jhunjhunu for permanent injunction. The said suit was decreed in favour of the defendants on 12.05.1995. Plaintiffs filed an appeal challenging the judgment and decree dated 12.05.1995 passed by the trial Court. The said appeal was dismissed vide order dated 27.07.1998 passed by Additional District and Sessions Judge, Jhunjhunu. Since, no second appeal was filed by the plaintiffs thereagainst, therefore the judgment and decree dated 12.05.1995 attained finality. It was also observed by the trial Court vide its judgment and decree dated 12.05.1995 that the plaintiffs shall be at liberty to file suit for possession on the basis of the registered sale deed. So, present suit was filed. 5. Defendants filed a written statement denying the contentions of the plaintiffs and categorically mentioned that possession on the disputed land was never delivered by Smt. Chander Kala to Shri Gurudayal Singh and Prithvi Singh and by Shri Gurudayal Singh and Prithvi Singh to Shri Gangaramji Charitable Trust. It was also mentioned that earlier suit No. 20/1993 filed before the Civil Judge (Senior Division) Jhunjhunu was decreed in favour of the defendants where the disputed property was held to be in possession of Moorti Sanket Mochan Balaji Temple situated on that property. The appeal was filed thereagainst also dismissed by the Additional District and Sessions Judge (Fast Track), Jhunjhunu vide judgment dated 27.07.1998. 6. On the basis of the pleadings of the parties, the trial Court framed following issues-: 1. Whether plaintiff Trust is a religious and charitable trust and Plaintiff Nos. 1 & 2 have right to file present suit as a trustee? 2. Whether plaintiffs are owners of disputed plot Nos. 6. On the basis of the pleadings of the parties, the trial Court framed following issues-: 1. Whether plaintiff Trust is a religious and charitable trust and Plaintiff Nos. 1 & 2 have right to file present suit as a trustee? 2. Whether plaintiffs are owners of disputed plot Nos. 1 & 2 as mentioned in para No. 2 of the plaint and they are entitled to retain their possession on these plots? 3. Whether defendants had illegally encroached upon the disputed plot Nos. 1 & 2? 4. Whether plaintiff is entitled to get Rs. 1000 per month as compensation? 5. Whether plaintiffs are entitled to get possession of disputed plots, house, shop and Balaji ka Mand from defendant? 6. Whether on account of non registration of plaintiff trust under Rajasthan Public Trust Act, the suit was not maintainable? 7. Whether on account of non impleading all the trustees as a party, the suit was not maintainable? 8. Whether on account of not having possession by the plaintiff and his predecessor over the disputed property for twelve years prior to filing of the present suit, the suit was not maintainable? 9. Relief? 7. To prove its case, plaintiffs examined the witnesses Anil Kumar Modi as PW-1, Sita Ram Paliwal as PW-2, Rohtash Kumar as PW-3 and Prithvi Singh as PW-4 and to prove their case, defendants examined the witnesses Surya Kant as DW-1, Pramod Kumar as DW-2 and Mahesh Sharma as DW-3. 8. After hearing the parties, trial Court decreed the suit filed by the plaintiffs and directed the defendants to handover the possession of the disputed plot Nos. 1 and 2 including constructed house, shops, well etc. as mentioned in the site plan and direction were also given not to disturb the peaceful possession of the plaintiffs on the suit property. Being aggrieved thereby, the defendants have filed an appeal whereas the plaintiffs had filed cross objection in relation to the judgment and decree dated 14.02.2006 on the ground that the trial Court had partly decreed the suit filed by the plaintiffs and dismissed the relief of the mesne profit, therefore cross-objection of the plaintiffs be allowed and the defendants be directed for payment of appropriate mesne profit. 9. Learned counsel for the defendants submits that the trial Court had not appreciated the evidence led by the parties in the right perspective. 9. Learned counsel for the defendants submits that the trial Court had not appreciated the evidence led by the parties in the right perspective. Plaintiffs have no right to file the present suit. They have no possession over the disputed property. Defendants had filed a suit against the predecessor of the plaintiff and that suit was decreed in favour of the defendants. Predecessor of the plaintiff had filed an appeal and the said appeal was also dismissed. The plaintiffs had not challenged the said order by way of second appeal. So, the judgment and decree dated 12.05.1995 passed by Civil Judge (Senior Division), Jhunjhunu attained the finality. Learned counsel for the defendants further submits that there is no evidence that possession was ever handed over to the plaintiffs. They also submitted that Smt. Chander Kala was star witness. Plaintiffs had not adduced the evidence of Smt. Chander Kala. So, handing over the possession to the plaintiffs was not proved. 10. Learned counsel for the defendants further submits that defendants had long possession of more than 100 years ago on the disputed premises. Temple of Moorti Sanket Mochan Balaji is 100 years old. DW-1-Surya Kant in his evidence clearly mentioned that he had been doing worship since 1980 as a priest. He was appointed by Manmohan Das. Prior to him Ramwatar was doing worship for 20 years as a priest. 11. Learned counsel for the defendants further submits that DW-2-Pramod Kumar in his evidence clearly mentioned that the disputed temple was 100 years old and he had been regularly visiting the temple since last 30 years. He had a shop in the temple and running said shop as a tenant for 25 years. Rent was also paid to Manmohan Das and presently he is paying rent to Surya Kant. 12. Learned counsel for the defendants also submits that DW-3 Mahesh Sharma also supported the evidence of the Surya Kant as well as Pramod Kumar. 13. Learned counsel for the defendants further submits that proceeding initiated against the predecessor of the plaintiffs clearly revealed that the defendants are in possession of the disputed property for more than 12 years prior to filing of the suit. Plaintiffs had no right to evict them. So, defendants are the owner by way of adverse possession. So, judgment dated 14.02.2006 passed by the trial Court be set aside. 14. Plaintiffs had no right to evict them. So, defendants are the owner by way of adverse possession. So, judgment dated 14.02.2006 passed by the trial Court be set aside. 14. Learned counsel for the defendants also submits that they filed a suit against the predecessor of the plaintiffs namely Gurudayal and Sh. Prithvi Singh and the said suit was decreed in favour of the defendants and possession of the defendants. The said judgment and decree passed by the trial Court was affirmed by the appellate Court. So, the present suit is barred by res-judicata. 15. Learned counsel for the defendants further submits that the plaintiffs are not entitled for any mesne profit because defendants are owner of the disputed property by way of adverse possession. So, cross-objection filed by the plaintiffs be also dismissed. 16. Learned counsel for the defendants has placed reliance upon the following judgments:- (1) The Jamia Masjid Vs. Sri K V Rudrappa (Since Dead) by Lrs and Ors. reported in 2021(2)WLC(SC) Civil 82 and (2) Dr. S P Mishra Vs. The NCERT and Anr. in SB Civil First Appeal No. 133/1996 decided on 02.08.2007. 17. Learned Sr. counsel for the plaintiffs has opposed the arguments advanced by the learned counsel for the defendants and submits that the present suit was filed by Shri Gangaramji Charitable Trust. Plaintiffs Anil Kumar Modi and Kumari Amita Modi were trustee of the trust and trust deed was exhibited by them as Ex-1. The said trust deed was amended in the year 1981 and 1982 which was also exhibited by them as Ex-2 and Ex-3. Registration of the trust under Rajasthan Public Trust Act is not necessary. They had submitted a copy of judgment passed by the Assistant Commissioner Devasthan as Ex-4. The defendants in their evidence gave evasive reply regarding the trustees of the trust. 18. Learned Sr. counsel for the plaintiffs further submits that the disputed land originally belonged to Smt. Banarsi Devi and the Khatedari documents of Smt. Banarsi Devi was exhibited by them as Ex-11 and Ex-12. Smt. Banarsi Devi had sold the disputed plots to Smt. Chander Kala. Smt.Chander Kala had built the Balaji ka Mand and well also in disputed premises. Smt. Chander Kala had also taken electric and water connection in her own name. Plaintiffs in their evidence also exhibited the receipt of the electric bills and water bills. Smt. Banarsi Devi had sold the disputed plots to Smt. Chander Kala. Smt.Chander Kala had built the Balaji ka Mand and well also in disputed premises. Smt. Chander Kala had also taken electric and water connection in her own name. Plaintiffs in their evidence also exhibited the receipt of the electric bills and water bills. These documents were proved by adducing the evidence of PW-2 Sita Ram Paliwal and PW-3 Rohtash Kumar, who were the officers of concerned departments. 19. Learned Sr. counsel for the plaintiffs further submits that earlier suit filed by the defendants against the predecessor of the plaintiffs was decreed as a permissive possession of the defendants. Pramod Kumar was of the same caste of the Smt. Chander Kala. After getting possession of the disputed land, Chander Kala had built Balaji ka Mand and well and gave permission to the Pramod Kumar for worshipping. Pramod Kumar was working as an RTO agent. He had misused the permission granted by Smt. Chander Kala for worshipping and he wanted to claim the disputed property. 20. Learned Sr. counsel for the plaintiffs also submits that the defendants failed to adduce the evidence that said temple was 100 years old. They had not supported their contention by way of the documents or revenue entries, devasthan department record or local authorities record regarding 100 years’ old temple. Disputed premises, well and temple were the private property of the Smt. Chander Kala. It was not a public property. 21. Learned Sr. counsel for the plaintiffs also submitted that evidence of the Surya Kant, Pramod Kumar and Mahesh Kumar clearly reveal that they were worshiping in the disputed temple since 1980. They had not adduced the cogent evidence regarding possession over the disputed property 12 years prior to the filing of the present suit. 22. Learned Sr. counsel for the plaintiffs also submits that he had submitted various sale deeds which reveals that possession was handed over to the plaintiffs. 23. Learned Sr. counsel for the plaintiffs also submits that the plaintiffs had filed the cross-objection regarding mesne profit because learned trial Court while decreeing the suit had committed an error in not granting the mesne profit. Learned Sr. counsel for the plaintiffs submits that the plaintiffs had filed an application for determination of the mesne profit in present appeal. 23. Learned Sr. counsel for the plaintiffs also submits that the plaintiffs had filed the cross-objection regarding mesne profit because learned trial Court while decreeing the suit had committed an error in not granting the mesne profit. Learned Sr. counsel for the plaintiffs submits that the plaintiffs had filed an application for determination of the mesne profit in present appeal. This court vide order dated 21.04.2017 had determined the mesne profit @ Rs.40,000/- per month. Defendants had challenged the said order before the Apex Court and the Hon’ble Apex Court vide its order dated 01.11.2018 had determined the mesne profit @ Rs. 7,500/- per month. So, defendants be directed to pay the mesne profit @ Rs. 7,500/- per month. 24. Learned Sr. Counsel has placed the reliance upon the following judgments 1). Annakili Vs. A. Vedanayagam and Ors. Reported in (2007) 14 SCC 308 and 2) C. Natarajan Vs. Ashim Bai and Anr. Reported in (2007) 14 SCC 183 25. I have considered the arguments advanced by the learned counsel for the defendants as well as learned Sr. counsel for the plaintiffs. 26. It is an admitted position that originally disputed land was belonged to Smt. Banarsi Devi. Plaintiffs in their evidence had exhibited the Khatedari documents of Smt. Banarsi Devi. Plaintiff had also exhibited the documents of the trust deed of Shri Gangaramji Charitable Trust and also adduced the evidence that Anil Kumar Modi and Kumari Amita Modi were trustee of the trust. They had right to file the present suit. Defendant-Surya Kant in his cross-examination gave the evasive reply that he did not know whether Anil Kumar Modi and Kumari Amita Modi had right to file present suit or not. Smt. Banarsi Devi had sold the disputed premises to Smt. Chander Kala and Smt. Chander Kala had built the Balaji ka Mand and well also in disputed premises. Smt. Chander Kala had taken the electric and water connection in her own name. Defendants had exhibited the receipt of electric bills and water bills. Said documents were proved by the witnesses PW-2 Sita Ram Paliwal and PW-3 Rohtash Kumar. 27. Contention of the defendants that said temple is 100 years old and they had possession for the last more than 12 years before filing of suit, is not correct because defendants failed to adduce the cogent evidence regarding 100 years old temple. Said documents were proved by the witnesses PW-2 Sita Ram Paliwal and PW-3 Rohtash Kumar. 27. Contention of the defendants that said temple is 100 years old and they had possession for the last more than 12 years before filing of suit, is not correct because defendants failed to adduce the cogent evidence regarding 100 years old temple. If the said temple was 100 years old then entries would have been in the Devasthan Department, Nagar Palika record and revenue record. Smt. Chander Kala had built the Balaji ka Mand and well in disputed premises. Pramod Kumar was of the same caste of Smt. Chander Kala. So, she had permitted him for worshiping. Pramod Kumar at that time was RTO agent and had an office near the disputed property. He had misused the permission granted by Smt. Chander Kala. The judgment passed by the trial Court in the suit filed by the defendants did not give benefit to them because trial Court as well as appellate Court had not gave the finding regarding adverse possession of the defendants. Rather, appellate Court observed that plaintiffs were at liberty to file the suit for possession on account of their title. Evidence of Surya Kant, Pramod Kumar and Mahesh Sharma clearly reveals that they were worshiping in the temple since 1980. Defendants failed to adduce cogent evidence that prior to them who was worshiping in the disputed temple. So, in my considered opinion, plaintiffs by way of oral as well as documentary evidence proved their case that they were owner of the disputed property. So, the present appeal filed by the defendants being devoid of merit and deserves to be dismissed. 28. Plaintiffs-Cross Objector also proved their case regarding mesne profit because it is an admitted position that defendants were encroacher in the disputed property. This court vide order dated 21.04.2017 had determined the mesne profit @ Rs.40,000/- per month. Defendants had challenged the said order before the Apex Court and the Hon’ble Apex Court vide its order dated 01.11.2018 had determined the mesne profit @ Rs. 7,500/- per month. So, in my considered opinion, plaintiffs are entitled to get mesne profit @ Rs. 7,500/- per month. So, the cross-objection filed by the plaintiffs deserves to be allowed. 29. Appeal filed by the defendants is dismissed and the cross-objection filed by the plaintiffs are allowed. 7,500/- per month. So, in my considered opinion, plaintiffs are entitled to get mesne profit @ Rs. 7,500/- per month. So, the cross-objection filed by the plaintiffs deserves to be allowed. 29. Appeal filed by the defendants is dismissed and the cross-objection filed by the plaintiffs are allowed. Defendants are directed to pay mesne profit @ Rs. 7,500/- per month to the plaintiffs as per order dated 01.11.2018 passed by the Hon’ble Apex Court. 30. Pending application(s), if any, stand(s) disposed of.