Rajasthan High Court - Jaipur
Vasudev Mangal Son Of Sh. Babu Lal Mangal vs Anar Devi Wife Of Sh. Krishan Kumar ... on 11 August, 2020
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
(1) S.B. Civil Writ Petition No. 3493/2020
Vasudev Mangal Son of Sh. Babu Lal Mangal, Aged About 76
Years, Resident of Old Cinema Gali, Gopal Ji Mohalla, Beawar,
District Ajmer (Raj.)
----Defendant/Appellant/Petitioner
Versus
1. Anar Devi Wife of Sh. Krishan Kumar Mangal, Resident of
Old Cinema Gali, Gopal Ji Mohalla, Beawar, District Ajmer
(Raj.) Deceased Through her LR :-
1/1. Mukesh Son Of Sh. Krishan Gopal Mangal, Aged About 45
Years, Resident of 91-Gandhi Nagar, Ajmer Road, Beawar.
At Present Resident of House No. 6, Manak Colony,
Delwara Road, Beawar (Raj.)
----Plaintiff/Respondent
Connected With (2) S.B. Civil Writ Petition No. 3501/2020 Mohan Lal Mangal, Aged about 66 Years, Resident of H. N. 19 (Old No. 1/220) Purani Cinema Gali, Gopal Ji Mohalla, Beawar (Raj.)
----Defendant/Appellant/Petitioner Versus
1. Anar Devi Wife of Sh. Krishan Kumar Mangal, (Died) Through Her LR. : -
1/1. Mukesh Kumar Son of Late Sh. Krishan Gopal Mangal, Aged About 45 Years, Resident of 91-Gandhi Nagar, Ajmer Road, Beawar (Raj.) At Present Resident of House No. 6, Manak Colony, Delwara Road, Beawar.
----Plaintiff/Respondent (3) S.B. Civil Writ Petition No. 3504/2020
1. Chimman Lal @ Pradeep Kumar Son of Late Sh. Babu Lal Mangal, (Died) Through His LRs. :-
1/1. Smt. Kamlesh Mangal Wife of Late Sh. Pradeep Kumar, Resident of 'Anamika' Taron Ki Koot, Surya Nagar, Tonk Road, Jaipur (Raj.) 1/2. Smt. Aarti Agarwal Daughter of Late Sh. Pradeep Kumar, Wife of Late Sh. Rajesh Kumar Agarwal, Resident of (Downloaded on 11/08/2020 at 10:01:27 PM) (2 of 11) [CW-3493/2020] Heera Nagar, D.C.M. Ajmer Road, Jaipur (Raj.) 1/3. Smt. Pooja Agarwal Daughter of Late Sh. Pradeep Kumar, Wife of Sh. Krishan Kumar Agarwal, Resident of Joshi Colony, Tonk Phatak, Jaipur (Raj.) 1/4. Smt. Jyoti Jain Daughter of Late Sh. Pradeep Kumar, Wife of Sh. Rahul Jain, Resident of Kisan Marg, Barkat Nagar, Tonk Phatak, Jaipur (Raj.) 1/5. Smt. Deepika Mangal Daughter of Late Sh. Pradeep Kumar, Resident of 'Anamika' Taron Ki Koot, Surya Nagar, Tonk Road, Jaipur (Raj.)
----Defendants/Appellants/Petitioners Versus
1. Anar Devi Wife Of Late Sh. Krishan Kumar Mangal, (Died) Through Her LR. :-
1/1. Mukesh Kumar Mangal Son of Late Sh. Krishan Gopal Mangal, Resident Of 91-Gandhi Nagar, Ajmer Road, Beawar (Raj.) At Present Resident Of House No. 6, Manak Colony, Delwara Road, Beawar.
----Plaintiff/Respondent (4) S.B. Civil Writ Petition No. 3507/2020
1. Shyamlal Mangal Son Of Sh. Babu Lal Ji Mangal, (Died) Through His LRs. :-
1/1. Smt. Shailbala Wife of Late Sh. Shyamlal Mangal, Resident of 23-24, Gayatri Nagar, Friends Colony, Ajmer Road, Beawar, District Ajmer (Raj.) 1/2. Vivek Mangal Son of Late Sh. Shyamlal Mangal, Resident Of 23-24, Gayatri Nagar, Friends Colony, Ajmer Road, Beawar, District Ajmer (Raj.) 1/3. Adarsh Mangal Son of Late Sh. Shyamlal Mangal, Resident of 23-24, Gayatri Nagar, Friends Colony, Ajmer Road, Beawar, District Ajmer (Raj.) At Present Assistant Professor, Maths Department, Govt. Engineering College, N.h.-8, Barliyas Circle, Ajmer (Raj.) 1/4. Smt. Aruna Gupta Daughter of Late Sh. Shyamlal Mangal, Wife of Sh. Satyaprakash Ji Gupta, Sankhla Colony, Beawar, District Ajmer (Raj.)
----Defendants/Appellants/Petitioners Versus
1. Anar Devi Wife of Sh. Krishan Kumar Mangal, (Died) (Downloaded on 11/08/2020 at 10:01:27 PM) (3 of 11) [CW-3493/2020] Through Her LR. :-
1/1. Mukesh Kumar Son Of Sh. Krishan Gopal Mangal, Resident of 91-Gandhi Nagar, Ajmer Road, Beawar (Raj.) At Present Resident of House No. 6, Manak Colony, Delwara Road, Beawar (Raj.)
----Plaintiff/Respondent (5) S.B. Civil Writ Petition No. 4161/2020
1. Smt. Anardevi wife Of Late Shri Krishan Gopal Mangal, Resident of Old Cinema Gali, Gopalji Mohalla, Beawar Dist. Ajmer (Raj.) Through its LR's -
1/1. Shri Mukesh Son of Late Shri Krishan Gopal Mangal, Aged About 46 Years, Resident of 91, Gandhi Nagar, Ajmer Road, Beawar (Raj.) Right now Resident Of House No. 6, Manak Colony, Delwada Road, Beawar (Raj.)
----Plaintiff/Respondent/Petitioner Versus Mohanlal Mangal Son Of Shri Babulal Mangal, Aged about 66 Years, Resident of H. No. 19 (Old No. 1/220), Old Cinema Gali, Gopalji Mohalla, Beawar (Raj.)
----Defendant/Appellant/Non-Petitioner (6) S.B. Civil Writ Petition No. 4162/2020
1. Smt. Anardevi Wife of Late Shri Krishan Gopal Mangal, Resident of Old Cinema Gali, Gopalji Mohalla, Beawar Dist. Ajmer (Raj.) Through it's LR's: -
1/1. Shri Mukesh Son of Late Shri Krishan Gopal Mangal, Aged About 46 Years, Resident of 91, Gandhi Nagar, Ajmer Road, Beawr (Raj.) right now resident of House No. 6, Manak Colony, Delwada Road, Beawar (Raj.)
----Plaintiff/Respondent/Petitioner Versus Vasudev Mangal Son of Shri Babulal Mangal, Aged About 76 Years, Resident of Old Cinema Gali, Gopalji Mohalla, Beawar Dist. Ajmer (Raj.)
----Defendant/Appellant/Non-Petitioner (7) S.B. Civil Writ Petition No. 4163/2020
1. Smt. Anardevi wife of Late Shri Krishan Gopal Mangal, R/o Old Cinema Gali, Gopalji Mohalla, Beawar Dist. Ajmer Raj Through its LRs. :-(Downloaded on 11/08/2020 at 10:01:27 PM)
(4 of 11) [CW-3493/2020] 1/1. Shri Mukesh S/o Late Shri Krishan Gopal Mangal, Aged About 46 Years, resident of 91, Gandhi Nagar, Ajmer Road, Beawar (Raj), Right now resident of House No. 6, Manak Colony, Delwada Road, Beawar (Raj).
----Plaintiff/Respondent/Petitioner Versus
1. Chimmanlal @ Pradeep Kumar S/o Shri Babulal Mangal, Through its LRs :-
1/1. Smt. Kamlesh Mangal W/o Late Shri Pradeep Kumar, resident of 'Anamika', Taaron Ki Kut, Surya Nagar, Tonk Road Jaipur (Raj).
1/2. Smt. Aarti Agrawal D/o Late Pradeep Kumar W/o Late Shri Rajesh Kumar Agarwal, R/o Heera Nagar, D.C.M., Ajmer Road, Jaipur (Raj).
1/3. Smt. Pooja Agarwal D/o Late Pradeep Kumar Wife of Shri Krishna Kumar Agarwal, resident of Joshi Colony, Tonk Phatak, Jaipur (Raj).
1/4. Smt. Jyoti Jain D/o Late Pradeep Kumar wife of Shri Rahul Jain, R/o Kisan Marg Barkat Nagar, Tonk Phatak Jaipur (Raj).
1/5. Smt. Dipika Mangal D/o Late Pradeep Kumar resident of 'Anamika', Taaron Ki Kut, Surya Nagar, Tonk Road, Jaipur (Raj).
----Defendant/Appellant/Non-Petitioner (8) S.B. Civil Writ Petition No. 4164/2020
1. Smt. Anardevi Wife of Late Shri Krishan Gopal Mangal, Resident of Old Cinema Gali, Gopalji Mohalla, Beawar Dist. Ajmer (Raj.) Through its LRs -
1/1. Shri Mukesh Son Of Late Shri Krishan Gopal Mangal, Age 46 years, Resident of 91, Gandhi Nagar, Ajmer Road, Beawar (Raj.) Right Now Resident of House No. 6, Manak Colony, Delwada Road, Beawar (Raj.)
----Plaintiff/Respondent/Petitioner Versus
1. Shyamlal Mangal Son of Shri Babulal Mangal, Through its LRs :-
1/1. Smt. Shailbala Wife of Late Shri Shyamlal Mangal, Resident of 23-24, Gayatri Nagar, Friends Colony, Ajmer Road, Beawar Dist. Ajmer (Raj.) (Downloaded on 11/08/2020 at 10:01:27 PM) (5 of 11) [CW-3493/2020] 1/2. Shri Vivek Mangal Son of Late Shri Shyamlal Mangal, Resident of 23-24, Gayatri Nagar, Friends Colony, Ajmer Road, Beawar Dist. Ajmer (Raj.) 1/3. Shri Adarsh Mangal Son Of Late Shri Shyamlal Mangal, Resident of 23-24, Gayatri Nagar, Friends Colony, Ajmer Road, Beawar Dist. Ajmer (Raj.) Right Now Assistant Professor, Maths Department, Government Engineering College, N.h.-8, Barliyawas Circle, Ajmer (Raj.) 1/4. Smt. Aruna Gupta D/o Late Shri Shyamlal Mangal Wife of Satyaprakash Gupta, Sankhla Colony, Beawar Dist. Ajmer (Raj.)
----Defendant/Appellant/Non-Petitioner For Petitioner(s) : Shri Rajkamal Gaur in CW Nos.3493/2020, 3501/2020, 3504/2020 and 3507/2020 Shri Saurabh Bhandari in CW Nos.4161/2020, 4162/2020, 4163/2020 and 4164/2020.
For Respondent(s) : Shri Saurabh Bhandari in CW
Nos.3493/2020, 3501/2020,
3504/2020 and 3507/2020
Shri Rajkamal Gaur in CW
Nos.4161/2020, 4162/2020,
4163/2020 and 4164/2020.
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Judgment Judgement Reserved on :: 28/07/2020 Judgement Pronounced on :: /08/2020 All these writ petitions arise out of order dated 12.02.2020 passed by the learned Additional District Judge No.1 (Additional Charge), Beawar, District Ajmer in applications filed by the appellants-defendants under Order 41 Rule 5 and Order 39 Rules 1 and 2 read with Section 151 CPC directing them to pay mesne profit at different rates while staying the execution of the decree for possession passed against them by the learned trial court.(Downloaded on 11/08/2020 at 10:01:27 PM)
(6 of 11) [CW-3493/2020] All these writ petitions have common origin. The facts in brief are that the predecessor-in-title of the respondent-Mukesh Mangal, viz; Smt. Anar Devi, filed four civil suits seeking decree of possession and mesne profit against the appellants-
defendants stating therein that they were in possession of four different portions of her residential house as licensee and she was entitled for restoration of possession as well as mesne profit on termination of their licence. All the four suits were decreed by the learned trial court vide common judgement and decree dated 27.11.2019. The defendants-appellants preferred four civil first appeal along with an application under Order 41 Rule 5 and Order 39 Rules 1 and 2 read with Section 151 CPC with each appeal. The learned appellate court has, vide order impugned herein dated 12.2.2020, while staying the execution of the decree dated 27.11.2019, directed the appellants-defendants to pay mesne profit at different rates. The aforesaid order to the extent of determination of the mesne profit, has been assailed both by the appellants as well as by the respondent by way of four writ petitions each.
Since the controversy involved in all these writ petitions is similar, they are being decided by this common judgement taking into consideration the facts of S.B. Civil Writ Petition No.3493/2020, Vasudev Mangal vs. Smt. Anar Devi through L.R. & cross S.B. Civil Writ Petition No.4162/2020, Smt. Anar Devi through L.R. vs. Vasudev Mangal.
These two writ petitions arise out of the order whereby the (Downloaded on 11/08/2020 at 10:01:27 PM) (7 of 11) [CW-3493/2020] learned appellate court has assessed the mesne profit at the rate of Rs.10,000/- per month payable by the appellant to the respondent. The writ petition no.3493/2020 has been preferred by the appellant, whereas the writ petition no.4162/2020 has been preferred by the respondent.
Assailing the order, learned counsel for the appellant contended that the determination of mesne profit at the rate of Rs.10,000 is highly excessive, unreasonable, arbitrary and oppressive. He submitted that the approved valuer has, in his valuation report dated 9.2.2020, assessed the monthly rent of the premises to the tune of Rs.2,082/- and hence, the learned appellate court erred in determining the mesne profit at a much higher rate ignoring the valuation report without assigning any reason. He submitted that the premises are residential in nature with construction almost 100 years old and hence, the assessment done by the learned appellate court is unreasonable and exorbitant which requires to be reduced to reasonable mesne profit. The learned counsel for the appellant, in support of his submissions, relied upon the following judgements:
(1) State of Maharashtra & Anr. vs. M/s. Super Max International Pvt. Ltd. & Ors.-AIR 2010 SC 722;
(2) Niyas Ahmad Khan vs. Mahmood Rahmat Ullah Khan & Anr.-(2008) 7 SCC 539;
(3) Gautam Dey vs. Pareshnath Kar & Ors., C.O. 1627 of 2015 dated 30.11.2015 (High Court at Calcutta).
Per contra, learned counsel for the respondent assailing the (Downloaded on 11/08/2020 at 10:01:27 PM) (8 of 11) [CW-3493/2020] order dated 12.2.2020 submitted that the learned appellate court has erred in not determining the mesne profit in the light of approved valuer's report dated 9.2.2020, which showed that the property in question could fetch monthly rent at the rate of Rs.35,000/-. He submitted that the premises in question is situated in commercial locality having commercial potential and hence, the mesne profit should have been assessed keeping the aforesaid factor in view. Relying upon the lease deed dated 31.1.2011, he submitted that the market rent of the similarly situated property in the vicinity was more than Rs.2,31,000 per month and hence, the mesne profit assessed by the learned appellate court is required to be enhanced to Rs.35,000/- per month.
Heard learned counsel for the parties and perused the record.
The following facts emerge from the record:
1) The property is residential and is being used for residential purposes only.
2) The construction is very old. Although, there is dispute as to the age of the construction. While the appellant has claimed the construction to be more than 100 years old, the respondent has claimed it to have been raised in the year 1962. However, the submission made by the appellant appears to be nearer to truth in as much as the averments made by him in the memo of appeal to the effect that their father Babu Lal Ji Mangal was residing in the premises in question since the year 1920 and it (Downloaded on 11/08/2020 at 10:01:27 PM) (9 of 11) [CW-3493/2020] was not the plaintiff's case that after purchasing the property through registered sale deed in the year 1961, either Shri Babu Lal or the plaintiff raised any construction thereon, have not specifically been rebutted by the respondent. There is no averment by the respondent in his memo of appeal to show the age of the construction to be about 60 years as claimed in the report of approved valuer. Thus, it can safely be assumed that the construction is about 100 years old.
3) Lease deed dated 31.1.2011 relied upon by the respondent is for commercial property let out for carrying out business of jewellery and from the address of the rented premises therein, it cannot be gathered that it is situated in the same locality in which property in question is situated.
Thus, the premises is residential, being used for residential purposes and the construction is about 100 years old. Since it is not meant for commercial use and is not being used for commercial purpose, the market rent assessed by the approved valuer in his report dated 9.2.2020 treating it commercial, cannot be accepted. Now, the question remains that what should be the reasonable mesne profit of the property in question.
The lease deed submitted by the respondent for assessment of mesne profit cannot be relied upon on account of the fact that it is for commercial property situated at different location whereby it was let out for jewellery business.
A three-Judges Bench of the Hon'ble Apex Court has, in the case of M/s. Super Max International Pvt. Ltd. (supra) held (Downloaded on 11/08/2020 at 10:01:27 PM) (10 of 11) [CW-3493/2020] as under:
"46. In light of the discussions made above we hold that in an appeal or revision preferred by a tenant against an order or decree of an eviction passed under the Rent Act it is open to the appellate or the revisional Court to stay the execution of the order or the decree on terms, including a direction to pay monthly rent at a rate higher than the contractual rent. Needless to say that in fixing the amount subject to payment of which the execution of the order/ decree is stayed, the Court would exercise restraint and would not fix any excessive, fanciful or punitive amount.
47. In the case in hand, the High Court has fixed the amount of Rs.5,40,000/- per month with reference to the Stamp Duty Ready Reckoner and hence, its reasonableness cannot be doubted. In fairness to Mr. Lalit he did not challenge the fixation of the amount on that ground."
Thus, the DLC rate can be taken to be a safe-guiding factor for determination of the mesne profit. In so far, assessment of market rent by the approved valuer as per DLC rate is concerned, as per the valuation report submitted by the appellant, the same is Rs.2,082; whereas, the valuation report submitted by the respondent shows the same as Rs.4,000 per month. The difference in two reports comes on account of area of construction and some other factors taken differently by the two valuers. However, looking to the fact that the learned appellate court has observed the property to be situated in the market, this Court deems it just and proper to determine the (Downloaded on 11/08/2020 at 10:01:27 PM) (11 of 11) [CW-3493/2020] mesne profit at the rate of Rs.4,000/- as assessed by the approved valuer vide its report dated 9.2.2020.
Consequently, the writ petitions filed by the appellants are partly allowed, whereas the writ petitions filed by the respondent are dismissed. The order dated 12.2.2020 is modified to the extent that in the case of Vasudev Mangal instead of mesne profit @ Rs.10,000 per month, the appellant would pay mesne profit @ Rs.4,000 per month; in the case of Mohan Lal Mangal, instead of mesne profit @ Rs.5,500 per month, the appellant would pay mesne profit @ Rs.3,300 per month; in the case of Chimman Lal & Pradeep Kumar through L.Rs. instead of mesne profit @ Rs.3,000 per month, the appellant would pay mesne profit @ Rs.1,500 per month and in the case of Shyam Lal Mangal through L.Rs. instead of mesne profit @ Rs.7,000 per month, the appellant would pay mesne profit @ Rs.4,000 per month. The rest of the order dated 12.2.2020 is maintained.
(MAHENDAR KUMAR GOYAL),J RAVI SHARMA /46-47 (Downloaded on 11/08/2020 at 10:01:27 PM) Powered by TCPDF (www.tcpdf.org)