JAGDISH PRASAD SHARMA Vs. DHARMENDRA ALIAS PURUSHOTTAM ADOPTED

JUDGEMENT

(1.) This matter has come-up on misc. application No.48366/2019,filed under Order 41 Rule 5 read with Section 151 of CPC, to direct the appellants to pay the mesne profits as per the prevailing rate (@ Rs. 10,300/- per month) w.e.f. 01.07.2019 onwards until the decision of this first appeal.

(2.) It has been submitted that the appellants have filed the present first appeal against the judgment and decree dated 24.03.2018, whereby and whereunder, respondent-applicant has been entitled to get the possession of the suit property along with mesne profits. The possession of the appellants over the suit property is unauthorized, particularly after passing of the judgment and decree. However, in the first appeal, vide order dated 28.05.2019, this Court had protected the possession of appellants by staying the execution of the impugned decree during the course of pendency of first appeal, subject to mesne profits as ordered in the impugned decree. Simultaneously, liberty was granted to the respondent/plaintiff to move application for enhancement of amount of mesne profits.

(3.) The suit property is a plot. As per its location, standing construction and use, the market has been assessed by the Chartered Civil Engineer and Registered Valuer on the basis of prevailing DLC rate of the land and cost of construction with depreciation. The suit property can be used for commercial purposes as on both sides of its entrance, two shops are located having openings towards the main road of Naya Bazar. The suit property can be used for construction of commercial complex by the respondent/s. Thus, the suit property is situated in thickly populated market and has a huge importance of commercial value. So, mere present use by appellants and present construction of tin shedded rooms would not adversely affect the utility of the suit property for commercial purposes. It is, therefore, prayed that this application may be allowed and the appellants may be directed to pay the monthly mesne profits at the rate i.e. Rs.10,300/- w.e.f. 01.07.2019 onwards untill the decision of the first appeal. The order dated 28.05.2019 may be modified accordingly.