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. 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. Pabbat