[2023:RJ-JD:37923]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil First Appeal No. 593/2018 Hariram S/o Prabhuji, Aged About 60 Years, B/c Mali, R/o Dhora Bera, Bishangarh, Road, Near Jawai River, Jalore A Tehsil And District Jalore ----Appellant Versus Harish Kumar S/o Rikabchandji, Aged About 60 Years, B/c Brahmin, R/o Bishangarh, Tehsil And District Jalore ----Respondent For Appellant(s) : Ms. Pratyushi Mehta For Respondent(s) : Mr. Narendra Thanvi HON'BLE MS. JUSTICE REKHA BORANA

Order

06/11/2023 Reportable

1. Matter comes up for final orders on stay petition.

Learned counsel for the appellant prays for confirmation of the interim order dated 13.12.2018 till the final disposal of the appeal and learned counsel for the respondent prays for vacation of the same & rejection of the stay petition. In the alternate, prayer for grant of ‘mesne profit’ in the eventuality of the interim order being confirmed, has been made.

2. Learned counsel for the appellant submitted that the interim order dated 13.12.2018 deserves to be confirmed till final disposal of the present appeal as firstly, it is an admitted fact that a revenue suit for partition is pending between the appellant and his family members and till the share of the defendant-appellant is determined, possession cannot be transferred to the plaintiff. She submitted that until the partition is made by metes and bounds, the appellant-defendant cannot be directed to handover the possession and in support of her submission, relied upon the judgment passed by the Hon’ble Apex Court in the case of Ramdas vs. Sitabhai, (2009) 7 SCC 444

3. Regarding the prayer for mesne profit as made by the respondents, learned counsel for the appellant, while relying upon the judgment of Andhra Pradesh High Court in the case of Thamanna Nukia Shetti vs. Velapa Appalaraju & Ors., AIR 1975 AP 208 submitted that no mesne profit can be awarded in an appeal challenging the decree of specific performance wherein decision of a partition suit in respect of the disputed property is pending.

She further submitted that the basic concept of ‘mesne profit’ presupposes a wrongful possession of the party who is directed to pay the same. So far as the present matter is concerned, the appellant cannot be deemed to be in wrongful possession as no title is transferred merely by virtue of a decree for specific performance until there is an execution of a conveyance pursuant to the decree. Hence, as of date, the appellant continues to be owner of the property in question and cannot be said to be in wrongful possession of the same. In support of her submission, learned counsel relied upon the following judgments:

i. Purushothaman vs. Thulasi, 1994 SCC Online KER 274 ii. H.M. Kumaraswamy vs. T.P.R. Rudradhya, AIR 1966 Mys 215 iii.Govinda Chandra Ghose vs. Provabati Ghose, AIR 1956 Cal 147

4. Learned counsel further submitted that as is the settled position of law, the nature of the user of the premise in question is also a relevant consideration to determine whether the mesne profit is to be granted or not. Admittedly, the premise in question is used for agricultural purposes only which does not even suffice the needs of the entire family of the appellant. No profit is being generated from such user of the land in question hence, mesne profit ought not to be granted. To substantiate the said ground, learned counsel relied upon the order dated 23.03.2021 passed by the Coordinate Bench of this Court in LRs of Gopal Bihari & Ors vs Shyam Baheti & Ors. (Civil First Appeal No.170/2002).

5. Per contra, learned counsel for the respondent-plaintiff submitted that in the present matter, execution of the agreement to sell (Exh.1) was specifically admitted by the defendant. Further, the defence regarding the pendency of the revenue suit was never taken before the Court below and hence, the same cannot be permitted to be averred before this Court. Learned counsel submitted that mere filing of the appeal would not amount to stay