Lrs.Of Champa Lal vs Thakur Shri Gopal Ji on 29 May, 2008

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S/4               S.B. CIVIL SECOND APPEAL NO.153/2008.
                  LRs of Champalal   Vs.      Thakur Shri Gopalji




      Date of Order :: 29th May 2008.

            HON'BLE MR. JUSTICE DINESH MAHESHWARI

      Mr. R.R. Nagori, for the appellants.
      Mr. J.P. Chhangani, for the respondent.

                                         ..

      BY THE COURT:

Yesterday i.e., 28.05.2008, after attempting to argue the

matter for some time, learned counsel for the appellants

submitted that even if the appellants are not in a position to

make out a case for formulating substantial question of law in

this appeal, having regard to the circumstances that the

appellants are residing in the suit premises for quite long and

at present are in the process of constructing their house, they

may be granted some extra time to vacate beyond the

statutory period. Learned for the respondents while not putting

much dispute on the proposition for granting some extra time

to the appellants, however, prayed for putting the appellants to

specific terms and for enhancement of the amount of mesne

profits that stands at present at Rs. 15/- per month only. The

appellant No.1/6 has submitted an undertaking while stating,-

“1. I undertake to abide by the final order
passed by this court in this appeal and the
terms and conditions imposed on the
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appellants while granting time for vacation
of the house in question.

2. I further undertake that the appellants shall
give vacant possession of the shop in
question to the respondent in compliance
with the order of this court after the expiry
of the period granted to them for the
vacation of the house.”

Learned counsel for the appellants has prayed for

granting of time of about two years for the appellants to vacate

the suit premises. Learned counsel for the respondent submits

that such a request is asking for rather longer time than as

might reasonably be required by the appellants and submits

that some reasonable time may be granted to the appellants

but with enhancement of the rate of mesne profits. Learned

counsel for the appellants further submits that the contention

of the appellants had been that the suit property was the

property of public trust, and therefore, it may be clarified that

the present judgment and decree for eviction and mesne

profits may not have bearing on any other proceeding relating

to the suit property under or in reference to the Public Trust

Act. Learned counsel for the respondent would urge in this

regard that such issue raised by the appellants has been

decided against them by the subordinate Courts and the

appellants are not entitled to raise such question in this appeal

while seeking time to vacate.

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Having regard to the facts and circumstances of the

case, it appears appropriate to allow time to the appellants to

vacate the suit premises by 31st December 2009. Learned

counsel for the respondent has rightly prayed for enhancement

of the amount towards damages for use and occupation of the

suit premises, particularly during the extra period to vacate as

being allowed in this appeal. The learned Trial Court has

allowed mesne profits @ Rs.15/- per month and having regard

to the overall facts and circumstances of the case, it appears

appropriate to allow mesne profits to the respondents from 1st

June 2008 until the appellants vacate the suit premises @

Rs.175/- per month.

So far the nature and character of the property is

concerned, the submissions of the appellants in that regard

have been rejected by the learned subordinate Courts; and the

capacity of the appellants remains that of tenant against whom

decree for eviction and mesne profits is being affirmed by this

Court. Thus, so far the appellants are concerned, the issue

regarding character of the property remains final. However, it

goes without saying that any other proceeding relating to the

suit property under or in reference to the Public Trust Act shall

obviously be dealt with by the Courts/Authorities in accordance

with law.

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Of course, for no substantial question of law being

involved, this second appeal is required to be, and is,

dismissed; however, the appellants are granted time to vacate

the suit premises by 31st December 2009 on the following

conditions:-

(i) The appellants shall personally submit an

undertaking supported by affidavit before the Trial

Court by 30th June 2008 to the effect that on or

before 31st December 2009, they shall hand over

peaceful and vacant possession of the suit

premises to the plaintiffs-respondents. They shall

also undertake not to cause any damage to the

suit premises nor to make any alteration and not

to assign, sublet or in any manner part with

possession to any other person and not to put the

premises to any use other than the present use

and not to cause any nuisance.

(ii) The appellants shall deposit by 30th June 2008 the

arrears, if any, of the rent/mesne profits and of the

decreetal amount and shall further pay to the

landlord the amount for use and occupation of the

suit premises at the rate of Rs. 175/- (One

hundred and seventy five) per month with effect

from 1st June 2008 or deposit this amount in the
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Trial Court month by month on or before 15th day

of the next month.

It is made clear that upon the appellants’ failure to

comply with any of the conditions aforesaid or violating any

terms of the undertaking, the plaintiff-respondent shall be

entitled to execute the decree forthwith in accordance with law.

No costs.

(DINESH MAHESHWARI),J.

Mohan/