Mesne
Profit
·
Meaning:
§
The term mesne profit is defined in S. 2 (12) of Code of Civil Procedure
1908, as follows:
" mesne profits
" of property means those profits which the person in wrongful possession
of such property actually received or might with ordinary diligence have
received there from, together with interest on such profits, but shall not
include profits due to improvements made by the person in wrongful possession.
§
The
Hon’ble Delhi high Court made following observations regarding mesne profit In Phiraya
Lal alias Piara lal v. Jia Rani [1]observed
that, “when damages are claimed in respect of wrongful occupation of immovable
property on the basis of the loss caused by the wrongful possession of the
trespasser to the person entitled to the possession of the immovable property,
these damages are called mesne profits”.
§
Wrongful
possession of the defendant is the very essence of the claim for mesne profit
No claim for mesne
profit if the possession of the defendant has not been wrongful[2]
·
Applicability:
§
The
court at times may pass a decree for mesne profit or order an enquiry regarding
mesne profit before passing such a decree[3].
Where such an inquiry has been directed then final decree shall be passed in
accordace with the findings of such an enquiry.
§
The
Hon’ble Madras High Court in the case of Nataraja Achari v. Balambal Ammal
observed that mesne profit arises in the following three cases:[4]
1.
Suit
for ejectment or recovery of possession of immovable property from a person in
possession without title, together with a claim for past or past and future
mesne profits.
2. A suit for partition by one or more tenants in common against others with a claim for account of past or past and future profits.
3. Suits for partition by a member of joint Hindu family with a claim for an account from the manager
2. A suit for partition by one or more tenants in common against others with a claim for account of past or past and future profits.
3. Suits for partition by a member of joint Hindu family with a claim for an account from the manager
§
By
the laws of equitable justice it is construed that it has to be given to the owner who demands such profit. The
rule regarding demand of mesne profit by co-owner is as follows:
A co-owner can sue the
wrong doer for mesne profit and get the mesne amount not only up to the
percentage of share in the property but for the whole amount decreed on the
property[5].
§
Where
a specific performance has been decreed on a decree debtor and for such
performance the decree debtor is in possession of property then a decree for
mesne profit cannot be obtained against him[6]
§
A
mortgage is not liable for mesne profit from the date when the decree for mortgage debt has discharged[7]
§
The
concept of Mesne profit does not apply where a co-parcener is demanding share
in the property.
§
When
the lower court has refused the relief with regards mesne profit then a further application in
this regard would be barred[8].
From this we can summarise that;
§
In
case of refusal by lower court it cannot be pleaded later
§
In
case of silence on this matter by lower court it can be pleaded and the court
may grant relief in this regard.
§
Note: Any decree regarding mesne profit passed in a suit shall be
treated as a preliminary decree until the moment an application for future
mesne profit is disposed and is incorporated in final decree[9].
§
Suit
for compensation for use and occupation of property is outside the rule.
§
Mesne
profit cannot be used to recover enhanced rent.
§
The
burden of proof of proving the amount received is on the person who has
received it
·
Calculation:
§
It
can be construed from definition of mesne profit as mentioned above in meaning,
mesne profit includes mesne profit and interest on mesne profit
§
A
court has given a decree with regards to mesne profit but is silent regarding
interest on mesne profit then such a decree must construe to be carrying interest
as well[10].
§
Mesne
profit cannot be charged on any profit which is gained by the decree debtor by
modifying the premises.[11]
§
If
the rate of interest is not decreed then the omission to fix the rate of
interest should be deemed to be a mistake committed by the officer responsible
for drafting the decree. The decree holder is free to apply to the court to
have the decree amended.
§
Once
the aggregate amount of mesne profit and interest there on is ascertained then
an application for final decree for such amount can be made by the judgement
debtor. In this regard the court may award interest at such rate as it thinks
fit.[12]
§
Liability
of the mesne profit is to be determined on the basis of the present condition
of the property and not on the basis of what profit can be earned after the
tenant leaves.
§
The
mesne profit should be calculated till the duration when the goods are actually
delivered to the decree holder[13],[14]
§
Mesne
profit can be calculated with due diligence when it can be ordinarily assumed that a higher profit could have been
achieved but a lower has been achieved. Thus mesne profit a profit on higher
profit may be considered[15] ;
e.x, A land is where
ordinarily sugarcane is cultivated but the defendant cultivated vegetables. Then
the court may calculate mesne profit assuming that sugarcane was cultivated
§
Where
the plaintiff did not produce any evidence in support of the amount of mesne
profit claimed by him and also admitted in examination in chief that there was
no basis for mesne profit claimed in the plaint; The court has considered the
profit from other surrounding areas to determine the mesne profit due by the
plaintiff[16].
§
There
is no rigid rule for determining the amount of mesne profit and the amount must
be assessed in every case by proper exercise of judicial discretion.[17]
§
In
Patna High Court case where the plaintiff had unnecessarily prolonged the
litigation declined to aware mesne profit up to the date of the decree[18]
§
While
calculating mesne profit payment of revenue and cesses made by the defendant
should be deducted ; The cost of collecting the rent or profits must not be
allowed to the defendant unless he has entered the property in exercise of his
bonafide claim of right[19]
·
Commencement and time limitation for
calculation:
§
The
defendant cannot be made liable for a period prior to him actually taking possession of the property and
after he has been dispossessed of the same[20].
§
Where
the decree of mesne profit has been passed but
is silent as to the period up to
which such profit is to be calculated. Then the decree holder is entitled to
mesne profit up to the date of delivery of possession[21],
[22]
or as till the moment the judgement debtor has relinquished his right over the
property and a notice in the same regard
has been given to the decree holder through the court[23].
§
Note: Mesne profit cannot be recovered for more than three years
from the date of decree unless both parties agree to it[24]
[25].
·
Miscellaneous:
§
Court fee:1
I.
Suit
for recovery of immovable property and for mesne profit on it:
o
The
court fee must be paid before ordering the execution of the decree by the court.[26](Such
an order must be treated as an order under S.27 of the code.)
II.
In
case of an appeal is made in High court then the rule as in Schedule II of the
Court- fees Act 1870 shall apply.
§
Appeal:
o
Order
of lower court appointing a commissioner for ascertaining future mesne profit
under r 12 is not appealable.
o
However
the order determining the mesne profit will
be open to appeal as a final decree.
[1] Phiraya Lal alias Piara lal v. Jia Rani, AIR 1973 Del 186.
[4] Nataraja Achari v. Balambal Ammal, AIR1980Mad222.
[5] Ramcharain v. Bansidhar, AIR 1942.
[9] Mohd Amin v. Vakil Ahmed, AIR 1952 SC 358.
[10] Girish Chunder v. Shashi Shikareshwar Roy (1900) ILR 27 Cal 951.
[12] Girish Chunder v. Shashi Shikareshwar Roy (1900) ILR 27 Cal 951.
[15] Gray v. Bhagumian, AIR 1930 PC
82.
