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 1 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. 2 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. 3 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 4 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/ 5