MESNE PROFIT

ASSIGNMENT # 1 SEMESTER Fall-2020

Submission Date (October 16, 2020)

BY

AREEJ ANWAR

ROLL # 17161624-046

LAW-504 (Code of Civil Procedure-I)

LL.B. (Bachelors of Laws) CAM

Submitted To

MR. TARIQ JAVED

School of Law

UNIVERSITY OF GUJRAT
1. INTRODUCTION
Mesne profits are profits to which a person is entitled but from, which he has been kept out by
the defendant. The profit lost to the owner of the land by reason of his having been wrongfully
dispossessed of his land. A claim for mesne profit is usually joined with the action for recovery
of the possession of the land.

a. LITERAL MANNING OF MESNE PROFITS

"Mesne" means, intermediate, intervening, the middle between two extremes and especially of
ranks of time as envisaged under section 2(12) of CPC 1908.
b. ORIGIN OF CONCEPT OF MESNE PROFIT
The concept of mesne profits has its origin in the medieval period. Under the feudal system, the
King owned all land. The King would let out a part of these lands to his barons on the condition
that they will provide him with soldiers whenever he wanted to raise an army.
The person to whom they paid rent became known as the ‘mesne landlord’. The word meant
‘intermediate’ in old French. The phrase was originally ‘mesne rents and profits’ meaning all the
rent or profit from the land that could be extracted by the intermediate landlord. In the modern
time the term ‘mesne profits’ means the claim that a lawful owner of the property has against the
unlawful possessor of the property.

c. NATURE OF MESNE PROFIT

All the legal system and the law of nature gives primary right to a compensation for injuries.
Mesne profit is one such right to compensation granted against injuria i.e. breach of legal right.
Mesne profit is a positive right available against infringement of private legal right.
The main object of awarding mesne profit is to compensate the actual owner of the property for
all the loss he has suffered. The idea of granting mesne profits as compensation normally
connotes reparation for some past wrongful act i.e. unlawful possession.

1. RELEVANT PROVISION OF LAW

Relevant provision of law regarding to concerned topic are:
(i) Section 2(12) of C.P.C.
(ii) Order 2, Rule 4 and order 20 Rule 12 of C.P.C.
2. SECTION 2(12) "Mesne profits" of property means those profits which the person in
wrongful profession of such property actually received or might with ordinary diligence
have received therefrom, together with interest on such profits but shall not include
profits due to improvements made by the person in wrongful possession.
Illustration no.1: -
A is in wrongful possession of B’s house. He receives profits from such property. Such profits
are known as ‘Mesne Profits’. In this case, the profits actually received by A in wrongful
possession of the property or the property which have been received from it, together with
interest on such profits.
Illustration no. 2: -
A trespasser, claims B’s house and collects rents. This is Mesne Profits. He digs a bore-well in
the land, constructs a group house and gives it for rent. The profits from well and newly
constructed building are not Mesne Profits.
In Phiraya Lal alias Piara lal v. Jia Rani Hon’ble Delhi high Court while defining the term
mesne profits 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 profit.

i. 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.

Very early in the year 1922, in Lata Prasad v. Sri Ganeshji Hon’ble Allahabad High Court, 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.

In N. Dasjee v. Tirupathi Devasthanam, Hon’ble Supreme Court observed that, “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”.

ii. 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.

iii. Assessment of the Mesne profits

One broad principle governing the liability for mesne profits is evident from Section 2(12) of the
Code of Civil Procedure, 1908 which defines ‘mesne profits' to mean "those profits which the
person in wrongful possession of property actually received or might with ordinary diligence
have received therefrom together with interest on such profits, but shall not include profits due to
improvements made by the person in wrongful possession". But the Section 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.
Earlier the rental value of the property formed the basis of assessment of mesne profits. The
courts used to award mesne profits taking into consideration rental value of the property. This
practice of assessing mesne profits on the basis of rent was inappropriate and later on the Courts
rightly struck it down.
Case Law
In Kesardeo Baijnath Vs. Nathmal Kisanalal, it was held, “that determination of mesne profits
on the basis of rental value of the property would be in correct test in the context of the definition
of menses of profits in section 2[12] Rent could be relevant factor, for considering the quantum
of mesne profits but not a decisive of the matter”.

While assessing the quantum of mesne profits, the factors such as location of the property,
comparative value of the property, condition of property in question, profits that are actually
gained or might have been gained from the reasonable use such property are generally taken into
consideration by the courts. Moreover, it is settled principle of law that the criteria for the
calculation of mesne profits is not what the owner loses by the deprivation of possession but
profits should be calculated on the basis of what the person in wrongful possession namely, the
defendants had actually received or might with ordinary diligence have received therefrom.

iv. 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.

In the case of Ramakka v. Nagesam; Hon’ble Madras High Court while considering the question
of onus of proof in case of mesne profits held that “onus of proving what profits might, with due
diligence, have been received in any year lies upon the party claiming mesne profits”. The court
further observed that, “Plaintiff may also adduce evidence to prove that the occupant was not
diligent and might have got greater profits by proper diligence”.

v. What are the deductions on Mesne Profits: -?

The Court must allow the following deductions from the gross profit of the defendant in
possession of the property: -
1. The charge for collecting rent, etc.
2. The costs of cultivating and reaping the crops, and
3. Public charges made from the preservation of the property, e.g., Government revenue.

vi. Mesne Profits- against whom means profits can be ordered?

Generally, Court can award Mesne Profits against the following persons under purview of
section 2 sub section12 of the Code of Civil Procedure,1908.
1. Tenants in a suit for recovery of possession. (Anderson wright Vs. Amar Nath Roy, AIR 2005
SC 2457)
2. Persons against whom a decree for possession of immovable property was passed. (Gopal
Krishna Pillai Vs. Meenakshi Ayal, AIR 1967 SC 155)
3. Trespass (Sita Ram Lakshmanji Vs. Dipnarain Mandal, AIR 1977 SC 1870)
4. Mortgagors in possession of mortgaged property against whom a decree for foreclosure was
passed. (Shiv Kumar Sharma Vs. Santhosh Kumari, AIR 2008 SC 171)
5. Mortgagors in possession of property after a decree for redemption was passed. (Prabhakaran
Vs M. Azhagiri Pillai, AIR 2006 SC 1567).

vii. What principles are to be applied to award mesne profits?

The Court must apply the following settled principles to award mesne profits: -
1. the profit to be taken into account is that made by a person in wrongful possession;
2. the aim should be restoration of status before dispossession of the Decree-holder;
3. the use to which the decree-holder may have put the property if he himself was in possession
is relevant only as evidence of what the defendant might with reasonable diligence have
received.

3. Order 2, Rule 4
4.- No cause of action shall, unless with the leave of the Court, be joined with a suit for
the recovery of immovable property, except-
(a) Claims for mesne profits or arrears of rent in respect of ~he property claimed or any
part thereof;
(b) Claims for damages for breach of any contract under which the property or any part
thereof is held; and
(c) Claims in which the relief sought is based on the same cause of action;
Provided that nothing in this rule shall be deemed to prevent any party in a suit for
foreclosure o~ redemption from asking to be put into possession of the mortgaged
property.
Example:
A suit for possession of land is however, a Bat to a subsequent suit for mesne profit of such land.
Case Law
Muhammad Amin vs. Vakil Ahmad:
Held: In this case held that a claim for mesne profit cannot be allowed unless there is a demand
of it. The claim would not be included within the expression awarding possession, occupation of
the property aforesaid together with all the rights appearing thereto.

4. ORDER XX JUDGMENT AND DECREE

12-(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) for the possession of the property;
b) for the rent or mesne profits, which have accrued on the property during a period prior
to the institution of the suit or directing an inquiry as to such rent or mesne profits;
c) directing an inquiry as to rent or mesne profits from the institution of the suit until. the
delivery of possession to the decree-holder;
ii. the relinquishment of possession by the judgement-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.
Mesne profits and Order 20 Rule 12
Mohammad Amin and Ors v. Vakil Ahmed and Ors.
Facts: The only issue before the Hon’ble Supreme Court was 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, Code of Civil Procedure, 1908. The learned Solicitor General
appearing on behalf of plaintiffs contended that there was no demand for mesne profits as such
but the claim for mesne profits would be included within the expression "awarding possession
and occupation of the property aforesaid together with all the rights appertaining thereto."

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, Code of Civil Procedure, 1908.
Judgment: Hon’ble Supreme Court held that, “The claim for mesne profits cannot be included
within the expression referred by learned counsel on behalf of plaintiff and the High Court was
in error in awarding to the plaintiff’s 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.
Ganapati Madhav Sawant (dead) through his Lrs. v. Dattur Madhav Sawant
In this case Hon’ble Supreme Court had laid down that when the plaintiff had not prayed for an
inquiry relating to mesne profits in terms of Order 20 Rule 12, Code of civil procedure, 1908,
then in the absence of such prayer same could not be granted.

5. COMPARISON UNDER 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.