JAAT NARAYAN SINGH Vs. RAVINDRA MOHAN BHANDARI

JUDGEMENT

(1.) THIS is an application for stay of the operation of the judgment and decree passed by the court below in Title suit Nos. 593 of 1976 and 1725 of 1978 passed by the Chief Judge. City Civil court, Calcutta dated 12th June 1989 whereby Title Suit No. 593 of1976was decreed and the Title Suit No. 1725 of 1978 was dismissed with costs. By the said judgment and decree the plaintiffs/respondents were to get recovery of the suit premises by evicting the defendant/appellant and the defendant was directed to deliver vacant possession within one year from the said date. The title Suit No. 593 of 1976 was filed by the plaintiffs/opposite parties for eviction of the defendant/appellant from the suit premises on the ground of expiry for a period of lease. By a registered deed of lease dated 31st March. 1955 the owner of the premises no. 64, Bentinck Street. Calcutta granted lease in favour of the lessee. The lease was for a period of 21 years from 1. 3. 55 reserving the monthly rent of Rs. 1400/- only. The right title and interest of the original lessor was vested to the: custodian of enemy properties and the custodian of enemy properties had conveyed and transferred absolutely to the predecessors of the plaintiffs/opposite parties as the defendant failed and neglected o deliver vacant possession within the expiry date and the said suit was filed.

(2.) THE defendant/appellant also filed a Title Suit no. 1725 of 1978 against the plaintiffs/opposite parties for specific performance and contract for execution and registration of the lease deed in respect of the suit premises. The prayer for 9ftay of operation of the judgment and decree by which the defendant/appellant was directed to vacate the premises, had not bee seriously opposed. But It was submitted on behalf of the plaintiff opposite parties that in case the court grants any stay of operation of the said decree, this court shall direct the appellant to pay mesne profit at the market rate from the date of the expiry of the lease. Admittedly, the area under the occupation of he appellant was 11,700 sq. ft. at the heart of the City of calcutta. The prayer for mesne profit as made by the plaintiffs/opposite parties has been opposed by the appellant.

(3.) THERE are different types of cases in which the question of profit or mesne profit arises. In a suit for ejectment or recovery of possession of immovable property from a person in possession with out title together with a claim for past or future mesne profits may also arise. Clause (12) of Section 2 of the Code of Civil Procedure defines mesne profit as "those profits which the person In wrongful possession of such property actually received or might with ordinary diligence have received there from together with interest on such profits but shall not include profits due to improvements made by the person in wrongful possession". So in order to claim mesne profit, one of the precondition Is that the party from whom it may be claimed, must be in wrongful possession of such property. In a case where a decree for eviction has been passed and the person against whom the decree for eviction, files an appeal and makes a prayer for stay of the execution of the decree for eviction, can it be said that such a person is in unlawful possession of the property and can the court direct the party to pay mesne profit for his occupation on the strength of the interim order the may be passed by the court. The possession of such party becomes lawful in case the injunction is granted, otherwise it would remain unlawful. Ns