The main legal point established is the determination of mesne profits based on the valuation of the property and prevailing rent, while considering the relationship between the parties and maintaining equity and justice.

JUDGMENT

1. The matter comes up on an application (1/30-4-2022) for grant of mesne profits to respondent defendant Govind Narain, who had succeeded before the trial court vide judgment dated 2-9-2021, passed by Additional District Judge No.7, Jaipur Metropolitan, which judgment has been stayed by this court in the first appeal vide order dated 4-3-2022.

2. The facts of the case are that vide judgment dated 2-9-2021 the trial court while dismissed the appellant-plaintiff's suit for partition and permanent injunction decreed the counter claim of respondent defendant Govind Narain for possession of the property in issues. The plaintiff was also directed to remove the pillar and other possession from ground floor and first floor and to hand over possession to defendant. Till handing over possession of the portion to defendant the plaintiff was directed to pay mesne profits to defendant Rs.100/- per month from April, 2019. Since, execution of the judgment has stayed, the defendant has filed the present application.

3. It has been submitted that there is finding against the plaintiff that he is a trespasser and continues in use and occupation of the suit property, therefore the trial court has fixed the mesne profits Rs.100/- per month from April, 2019. It has been submitted that the suit property, which is in use and occupation of the plaintiff can carry much rent and a prayer for mesne profits was made for Rs.10,000/-, but due to escalation in prices and increase in the market value of suit property the mesne profits should be Rs.25,000/- per month, but now due to interim order dated 4-3-2022 the plaintiff is allowed to be in use and occupation of the property further, therefore mesne profits should be fixed now as Rs.37,000/-. The defendant has placed on record the valuation report and submitted that property of such valuation can fetch rent of about Rs.25,000/-. Counsel for defendant submitted that rent in vicinity ranges about Rs.25,000/- per month. The defendant has also placed on record his expenses for maintaining his parents of spending Rs.10,000/- per month, while the plaintiff is not spending any money for meeting expenses of parents. Similarly has stated about criminal activities by plaintiff, for which criminal cases has also been registered against plaintiff. Counsel has submitted that while staying the operation of the impugned judgment and allowing plaintiff to be in use and occupation of the suit property, a reasonable condition may be imposed by fixing suitable and reasonable amount of mesne profits and prayed to fix it as Rs.37,000/- per month.

4. The plaintiff filed reply to application and opposed the same. It has been submitted that the valuation report contains value of whole property and the value of the portion in possession of plaintiff is only Rs.11,138/- as such the mesne profits as prayed for cannot be fixed. The plaintiff submitted that he is in possession of one room and kitchen out of six rooms, two big hall on ground floor, as such the said portion can fetch rent only of Rs.1000/- per month. It has been further submitted that portion on first story was constructed by plaintiff and no expense was incurred by defendant for which no mesne profit can be fixed. As such a prayer has been made to dismiss the application.

5. Heard learned counsel for parties on the application for mesne profits filed defendant, who had succeeded before the trial court and perused the material available on record.

6. Having heard learned counsel for parties this court is of the opinion that admittedly the defendant succeeded before the trial court and vide judgment dated 2-9-2021 while the plaintiff has been directed to hand over vacant possession of the suit property, mesne profits has been fixed from April, 2019. This court in first appeal vide order dated 4-3-2022 has stayed the execution of the judgment. In such circumstances, to maintain balance of equity and interest of justice between parties while granting stay in favour of