Judgments relating to suit for possession of mesne profits

Rule 12 deals with judgment relating to suits for possession and mesne profits.

Section 2 (12) defines mesne profits as profits which the person in wrongful possession of such property actually received or might have received if he had exercised ordinary diligence and care.

The definition of mesne profits also includes interest on such profits, but excludes profits derived due to improvements made by the person in wrongful possession.

It was held in Narayan Dasjee vs. Board of Trustees [AIR 1965 S.C. 123] that interest is an integral part of mesne profit. In Purificatio vs. Dr. Hugo [AIR 1985 BOM 202] it was pointed out that mesne profits are to be calculated on the basis of advantage a person in unlawful occupation gets by the use of the property and that the basis of calculation is not the maximum rent that the landlord could have fetched if the property were freshly leased out.

It is common to claim and to award mesne profits whenever a suit is laid for possession of the property.

This is so because a person in unlawful possession of the property is likely to receive the income generated by the property and since the person in unlawful possession has no right to possess the property, he is equally not entitled to the income derived from such property during the tenure of the occupation of such property by such unlawful possessor.

The property or profit generated by such property belongs to the lawful owner of the property.

Consequently, a claim usually is made for mesne profits whenever a claim is made for recovery of the possession of the property from the unlawful possessor.

Order 20 Rule 12 ordains that whenever a court passes a decree for possession as well as mesne profits, the decree shall be a final decree in so far as it relates to the possession of the property; and that in so far as the decree relates to rents or mesne profits, the decree could be a preliminary decree.

In other words, the court merely declares that the specified person is entitled to mesne profits and it relegates the duty to decide quantum of mesne profits to the final decree proceedings.

The rule further envisages that court may decree a suit for possession granting mesne profits from the institution of the suit till the delivery of the possession to the decree-holder or till the judgment-debtor relinquishes possession with due notice to the decree-holder through the court or till the expiration of three years from the date of the decree whichever is earlier.

It is curious to notice that the law of limitation does not apply to a petition seeking a final decree for mesne profits since application for ascertainment is an application considered to be in a pending suit as observed in Kamakhya vs. Akloo [AIR 1929 Patna 389] while a party can seek for past mesne profits only for three years prior to the date of the suit in view of the application of Article 51 of the Limitation Act for such a claim.

In as much as the plaint is subsequent to the period of the decree or the institution of the suit, the plaintiff can claim for future mesne profits till the date of his taking possession of the property or till the defendant vacates possession with due notice to the plaintiff.

In any event, the decree-holder cannot claim future mesne profits beyond the years from the date of the decree. This three years period is provided in the code with the rationale that a decree-holder seeking possession would take steps to execute the decree for possession expeditiously after he obtains the decree.

The implication of this rule is that a judgment cannot grant future mesne profits beyond three years from the date of the judgment. So far as past mesne profits are concerned, the very suit would not be numbered if the claim is for a period of more than three years prior to the date of the suit.

It is now settled law that if the preliminary decree did not grant mesne profits, it is deemed that the claim for mesne profits is rejected. As pointed out in Alexander vs. Nair Service [AIR 1966 Kerala 286], mesne profits cannot be evaluated by the plaintiff. It is solely for the court determining mesne profits on the evidence before it.

In practice, when a suit for possession together with mesne profits is laid, the suit is taken up for trial. If the plaintiff succeeds in the suit, the court grants a decree for possession and also grants a preliminary decree for past mesne profits or future mesne profits or both.

After the decree of the suit, the plaintiff files a final decree petition wherein he claims for the appointment of a commissioner to determine mesne profits. Usually a senior advocate is appointed.