- (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 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.;