GAFOOR ALI HUSSAIN Vs. RAM MAHADIK

JUDGEMENT

(1.) THIS appeal arises from the judgment and decree dated 24-12-1997 passed by a learned Judge of the City Civil Court, Bombay, in Suit No. 3399 of 1983. That suit was filed by the respondent Nos. 1 to 9 herein who are the trustees of a public charitable trust which is known as "nagrik Sahaya Kendra". The said trust runs a high school known as "dnyaneshwar Vidyalaya" in Wadala area of the city. The case of these respondents was that the appellants and the respondent No. 10 were trespassers on a part of a shed (adjoining to the high school) belonging to the said trust represented by respondent Nos. 1 to 9 and hence they sought a decree for possession which has come to be granted by the learned Judge. It is relevant to note that because of sheer pressure of the work in the City Civil Court, it took 15 years for the suit to be decided.

(2.) THIS First Appeal was admitted on 16-2-1998. Thereafter, on being pointed out the requirements of the respondent Nos. 1 to 9 the record and proceedings were called and hearing of the appeal was expedited by another Judge. The appellants were depositing Rs. 300/- per month in the trial Court. The learned Judge, by his order dated 5-3-1998, increased the amount to Rs. 1500/- per month (inclusive of the above referred Rs. 300/-) during the pendency and disposal of the appeal with liberty to these respondents to withdraw the said amount. I am told that this amount is being deposited regularly.

(3.) AFTER the appeal was admitted, Cross Objection bearing (Stamp) No. 9365 of 1998 has been filed on behalf of respondent Nos. 1 to 9 who have pointed out in the Cross Objection that although the principal prayer in the suit was for possession of the part of the shed known as Mid Day Shelter, prayer (c) thereof was to direct the defendants to pay to the plaintiffs an amount of Rs. 1,500/- per month by way of compensation for use of a part of the said Mid Day Shelter from May 1983 onwards till the hearing and final disposal of this suit. In para 10 of the plaint, it was pointed out that the defendants were using 1/3rd of the shed and that the plaintiffs were entitled to claim compensation at the rate of 1,500/- as stated above till the disposal of the suit and till such time that the defendants remove their goods from the said Mid Day Shelter. Thus, there was an averment of mesne profit which was not considered by the learned Judge while passing the decree. In para 5 of the Cross Objection, it is submitted that mesne profits ought to have been determined at Rs. 10,000/- and more per month from the date of decree considering the daily increasing values of the properties.