The Court rejected an application under Section 151 CPC for mesne profits. It held that no title passes in specific performance until the conveyance is executed, so the appellant remains the owner and is not liable for mesne profits.
The application for grant of mesne profits is rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR.
ORDER
Smt. Mithlesh Kumari Vs. Shivjiram Bairwa & Anr.
SB Civil Misc. Appl. NO. 15924 dated 10.5.2012
In S. B. CIVIL FIRST APPEAL NO. 241/2002.
Date of order : 05th February, 2014. HON'BLE MRS. JUSTICE NISHA GUPTA
Mr MM Ranjan, Sr. Advocate with Mr Arun Singh, for appellant.
Mr Manoj Bhardwaj, for respondents.
BY THE COURT
The matter comes up on Misc. Application under Section 151 CPC filed by plaintiff respondents for grant of mesne profits during the appeal.
2
6325/- and cost of construction is 9 lacs. Therefore the total value of the property is 28,67,075/- the property can fetch rent about Rs. 30,000/- per month. Hence mesne profits be allowed to the respondents.
Per contra, the contention of the respondents is that they are not trespasser, not in wrongful possession of the land, possession has been handed over to him vide order passed in the proceedings under Section 145 Cr.P.C which presupposes that he was in possession of the property. Respondents have not made any construction over the property. The appellant is in possession since long. Rent cannot be determined on the basis of D.L.C. rates, it has to be shown that the property in question is habitable. Appeal is of 2002 after delay of 12 years, appeal has been filed and hence the application be rejected.
3
getting fruits of his property inspite of decree.
“Here in the case in hand, it is not the case of the respondent-plaintiff that he is the owner of the disputed house but he is claiming mesne profits on the basis of impugned decree of specific performance of the contract which is under challenge in this appeal. In my view, upon a decree for specific performance being passed on an agreement, no title passes until conveyance is actually executed by the defendant in obedience or by the court in execution of the decree. Until therefore title actually passes to the plaintiff the defendant will continue to be owner of the property with the result that he cannot be said to be in unlawful possession and therefore, he cannot be said to be liable for the mesne profits.”
4
mesne profits specially when the possession of the property has been handed over to the appellant under the orders passed in proceedings under Section 145 Cr.P.C.
In the light of the above, the application No. 15924 dated 10.5.2012 is rejected.
(NISHA GUPTA),J.
Gandhi/- 121 All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Brij Mohan (Sr. P.A.)
2 issues framed by the court
Whether mesne profits can be awarded to a decree holder before the execution of the conveyance deed in a specific performance suit.
Whether a decree holder in specific performance proceedings can be held to be in unlawful possession before title passes.
Colour shows how this judgement treated each authority
Chandan Devi through her LRs Vs. Gyan Chand KothariRelied on¶20
SB Civil First Appeal No. 588/2006 (Smt. Chandan Devi through her LRs Vs. Gyan Chand Kothari decided on 28.1.2009)
2 provisions across 2 enactments
Mithlesh Kumari
Shivjiram Bairwa
Nisha Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
