Mesne Profts
Section- 2(12) of CPC 1908
Mesne Profits: Section 2(11) of the Code of Civil Procedure defines Mesne Profits as follows:-
“Mesne profits” of property means those profits which the person in wrongful possession of such property actually received or might with the ordinary diligence have received therefrom, together with interest on such profits but shall not include profits due to improvement made by the person in wrongful possession.
Essentials Of Mesne Profits
Ownership – Overview
The concept of ownership is one of the fundamental juristic concepts common to all system of law. Ownership consists of an innumerable number of claims, liberties, powers & immunities with regard to the things owned. According to some jurists there is no point in having the concept of ownership without these claims.
According to Austin “ownership means a right which avails against everyone who is subject to the law conferring right to put thing to user of infinite nature”.
According to Hibbert “ownership involves four rights and those are the
- Rights of using the thing,
- Excluding others from using it,
- The disposal of thing and
- The destruction of thing.
Ownership – Overview
From the analysis of aforementioned definitions one can conclude that the ownership is nothing but a right, which is available against every one who is subject to law. Such claim consists of following rights.
1. Right to posses & use,
2. Right to exclude others from possessing & using it,
3. Right to transmit or transfer and;
4. Right to destroy thing owned.
Possession – Overview
Among these rights one of the most significant right is possession of property. Possession is prima facie evidence of ownership and law always protect right to possession.
According Savigny protection of possession is a branch of protection to person and as any act of violence to person is unlawful, so is the act that disturbs possession by fraud or force. He further stated that possession is not protected because it is so intimately connected to the ownership, but in the interest of public order and safety. If the law allows self-help it would certainly lead to breach of peace. Therefore in the interest of public order and safety no one should be allowed to take the laws into his own hands.
Possession is well protected as a part of criminal law with the objective to preserve & maintain peace. Possession is also protected as a part of law of tort. In the property law, Possession is considered as a sufficient proof of ownership. Every person may keep what he possesses unless some one can prove that he has better title
Mesne Profits – Background
Wrongful interference or possession with the immovable property of another persons is a legal wrong and for such breach of legal right , the Law provides right to compensation for the aggrieved person.
The term ‘mesne profits’ relates to the damages or compensation recoverable from a person who has been in wrongful possession of immovable property. The Mesne profits are nothing but a compensation that a person in the unlawful possession of others property has to pay for such wrongful occupation to the owner of the property
Mesne Profits
The income that the individual in wrongful possession actually gained or should have earned with ordinary diligence is known as “Mesne profits” according to this concept. According to Section 2(12), an individual is only entitled to mesne profits if he has the right to acquire possession but is robbed of it by another person whose occupation is unlawful. The key and Formest requirement for transferring mesne profits is the occupant’s unlawful ownership of the land. Mesne profits also include interest in those profits, according to this section. However, any benefit gained as a result of improvements made to the property by the individual in unlawful possession of the property is expressly excluded from this description.
Taking into account the description in Nataraja Achari v. Balambal Ammal, the Madras High Court observed that there are three types of cases in which the issue of benefit rights arises, as specified by Section 2(12):
- A claim for past or future mesne profits, as well as ejectment or restitution of possession of immovable property from an individual in possession without a title.
- A lawsuit for account of past or future earnings brought by one or more tenants in common against others in a partition action.
- Suits for partition by a Hindu family member with a claim for an account from the manager.
In the first case, the plaintiff is entitled to recover mesne profits, which are in the form of damages, since the defendant’s possession is unlawful.
In the second case, since the defendant’s possession and receipt of income was not wrongful, the plaintiff’s remedy is to provide an account of those profits, with all just allowance made in favour of the receiving tenant in common. In the third case, the applicant must take the joint family property as it appears at the time of the petition for division, and he or she is not entitled to open a past account or seek compensation based on past inequality of benefit enjoyment unless the manager has engaged in dishonest conduct or misappropriation. The complainant, on the other hand, will be in the place of a joint tenant from the date of severance in status and his right would have to be worked out on that basis.
Mesne Profits- against whom means profits can be ordered?
Generally, Court can award Mesne Profits against the following persons under purview of Section 2(12) of the Code of Civil Procedure,1908.
Tenants in a suit for recovery of possession. (Anderson wright Vs. Amar Nath Roy)
Persons against whom a decree for possession of the immovable property was passed. (Gopal Krishna Pillai Vs. Meenakshi Ayal)
Trespass (Sita Ram Lakshmanji Vs. Dipnarain Mandal)
Mortgagors in possession of mortgaged property against whom a decree for foreclosure was passed. (Shiv Kumar Sharma Vs. Santhosh Kumari)
Mortgagors in possession of the property after a decree for redemption was passed. (Prabhakaran Vs M. Azhagiri Pillai).
A preliminary decree can be passed by the court in the following suits as provided by the CPC, 1908
Order 20
Rule 12
Suit for possession and Mesne profit
Order 20
Rule 13
Administration Suits
Order 20
Rule 14
Suits of pre-emption
Order 20
Rule 15
Suit filed for dissolution of a partnership
Order 20
Rule 16
Suits related to accounts between the principal and agent
Order 20
Rule 18
Suit for partition and separate possession
Interest on Mesne profits
The definition of the term ‘Mesne profit’ provided under section 2(12) of the Code of civil Procedure, 1908 explicitly provides that interest is an integral part of mesne profits. From the expression ‘together with interest on such profits’ in Section 2(12) it is apparent that ‘mesne profit’ includes within its fold an interest component.
And the rate of interest to be allowed in regard to mesne profits varies depending upon the facts and circumstances of each case. Since the statute does not fix any rate of interest it is left at the discretion of court to determine the rate of interest. Generally, the rate of interest is awarded at 6 % per annum.
“What is the effect of a decree which grants mesne profits and says nothing about interest,”
Hon’ble Allahabad High Court in a very old case of Lalta Prasad vs Sri Ganeshji in the year 1922 held that the term ‘Mesne profits’ also includes interest on the profits earned by the unlawful possessor of the property and where the decree of granting mesne profits say nothing about interest, the decree holder can claim that the decree of mesne profits includes interest.
Their Lordships explain this in the tame judgment by saying: “Mesne profits are in the nature of damages which the Court may mould according to the justice of the case.”
Supreme Court in the Case of Mahant Narayana Dasjee Varu v. Board Of Trustees, Tirupathi Devasthanam 1965 held
Under Section 2(12) of the Civil Procedure Code which contains the definition of “mesne profits”, interest is an integral part of mesne profits and has, therefore, to be allowed in the computation of mesne profits itself. That proceeds on the theory that the person in wrongful possession appropriating income from the property himself gets the benefit of the interest on such income.
Improvements in the property by unlawful possessor
Latter part of Section 2(12) expressly provides that mesne profits do not include profits due to improvement made in the property by the person in wrongful possession.
However a person in wrongful possession of the property is not entitled to claim expenses incurred on improvements in such property. In other words, plaintiff in not bound to pay the defendant compensation for improvements as a condition precedent to obtaining possession. The defendant being in the rank of trespasser is not entitled to such compensation.
Assessment/ Calculation of the Mesne profits.
Section 2(12) does not provide any fixed rule for the assessment of such profit. The provision simply states that mesne profits include interest on such profits. And profits due to improvement are excluded from the assessment of the quantum of mesne profits.
In the lights of this broad principle, the determination of quantum mesne profits is left at the discretion of the court. And mesne profits being in the nature of damages even the Court cannot lay down any invariable rule governing award and assessment of mesne profits in every case. The Court may mould award and assessment of mesne profits according to the justice of the case. In other words there is no uniform criterion for the assessment of mesne profits. The quantum of mesne profits depends upon the facts and surrounding circumstances of each case.
Burden of Proof
It is settled principle of law that in case of mesne profits the burden of proof rests on the claimant i.e. the plaintiff. And mesne profits being in the form of compensation, before claiming mesne profits the plaintiff have to establish before the Hon’ble court that he was lawful owner of the property and he was deprived of it by the unlawful possession of the defendant. The plaintiff having proved the aforementioned facts becomes entitled to mesne profits. Further the onus of proving what profits he might have received with the ordinary diligence lies on the claimant.
Order 20 rule 12; Decree for possession of mesne profits
(1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree-
(a) for the possession of the property;
(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent;
(ba) for the mesne profits or directing an inquiry as to mesne profits;
(c) directing an inquiry as to rent or mesne profits from the institution of the suit until-
(i) the delivery of possession to the decree-holder,
(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree, whichever event first occurs.
(2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.
Under this rule, four types of decree can be passed:
(i) A final decree for possession of immovable property
(ii) A final decree for past mesne profits.
(iii) A preliminary decree directing accounts respecting past mesne profits.
(iv) A preliminary decree directing an inquiry as to the amount of future mesne profit upto the point specified.
Issue: Whether mesne profits can be granted when the plaintiff had not specifically prayed for an inquiry relating to mesne profits in terms of Order XX Rule 12, CPC,1908.
Supreme Court in the case of Mohd. Amin And Others vs Vakil Ahmed , 1952 stated
“We are afraid that the claim for mesne profits cannot be included within this expression and the High Court was in error in awarding to the plaintiffs mesne profits though they had not been claimed in the plaint. The provision in regard to the mesne profits will therefore have to be deleted from the decree” .
COMPARISON UNDER INDIAN LIMITATION ACT
The defendant is liable for all mesne profits received by him or which he might with ordinary diligence have received during the 3 years before suit and not before Article 109 of the limitation Act.
Issue: Whether mesne profits can be granted when the plaintiff had not specifically prayed for an inquiry relating to mesne profits in terms of Order XX Rule 12, CPC,1908.
Supreme Court in the case of Mohd. Amin And Others vs Vakil Ahmed , 1952 stated
“We are afraid that the claim for mesne profits cannot be included within this expression and the High Court was in error in awarding to the plaintiffs mesne profits though they had not been claimed in the plaint. The provision in regard to the mesne profits will therefore have to be deleted from the decree” .
The defendant is liable for all mesne profits received by him or which he might with ordinary diligence have received during the 3 years before suit and not before Article 109 of the limitation Act.
 Of Civil Procedure Code with case laws){kind=link}
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