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MESNE PROFITS
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Introductory:-
The word ‘Mesne Profits” can be understood as rents or profits accruing during the rightful owner’s
exclusion from his land. Justice Low of the British Columbia Court of Appeal adopted these words
relating to “Mesne profits. According to His Lordship, Mesne Profits are profits of land taken by a tenant
in wrongful possession from the time that the wrongful possession commenced to the time of the trial of
an action of ejectment brought against him.” unless we understand the meaning of ‘ownership’, it is
difficult to understand the word ‘Mesne Profits’ because the fundamental object of passing Mesne Profits
is to compensate the actual owner of the property for all the loss he has suffered. 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”. Hibbert defines, “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. In Blacks Law Dictionary, ownership has been defined as “collection of rights of rights to use &
enjoy property, including the right to transmit it to others”.
Section 2 (12) of the Civil Procedure Code,1908 has defined ‘Mesne Profits’ as thus:-
“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 therefrom, together with
interest on such profits, but shall not include profits due to improvements made but the person in
wrongful possession;
From this definition, it is known that “Mesne profits” are the profits, which the person in wrongful
possession actually earned or might have earned with the ordinary diligence. According to Section 2(12)
a person becomes entitled to mesne profits only when he has right to obtain possession but another
person whose occupation is unauthorized keeps him deprived of that possession. The main condition for
passing mesne profits is unlawful possession of the occupant of the property. It is also known from this
section that Mesne profits include interest on such profits. But, this definition explicitly excludes any
profit earned due to improvement in the property made by the person in unlawful possession of such
property. I will now show two illustrations which help us to understand the word ‘Mesne Profits’ more
clearly.
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.
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The Hon’ble Madras High Court in Nataraja Achari v. Balambal Ammal6 pointed out that there are
three different types of cases in which question of rights of profits arise:
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.
The Hon’ble Madras High Court further delineated that , “In the first case, the possession of the
defendant not being lawful, the plaintiff is entitled to recover mesne profits such profits being really in
the nature of damages. In second case the possession and receipt of profits by the defendant not being
wrongful the plaintiffs remedy is to have an account of such profits making all jus allowance in the
favour of the collecting tenant in common. In the third case the plaintiff must take the joint family
property as it exists at the date of the demand for partition and is not entitled to open up past account or
claim relief on the ground of past inequality of enjoyment of the profit, except where the manager has
been guilty of fraudulent conduct or misappropriation. The plaintiff would however, be in the position
of the tenant in common from the date of severance in status and his right would have to be worked out
on that basis.
Conclusion:-
In 178th Report of the Law Commission, in the list of the Sections in various statutes in regard to which
amendments are proposed is given, proposed to amend Order XX Rule 12 and Order XX Rule 18:
Making it mandatory that evidence as to mesne profits, rents up to the date of commencement of trial
should be adduced at the trial. As to under Order XX, Rule 12 of CPC, as was pointed out by the Law
Commission, in practice, in most courts, a decree is passed for possession and so far as past or future
rents or mesne profits are concerned, an inquiry is directed. Usually, this inquiry hangs on for years in as
much the court appoints advocate commissioners, they give reports after recording evidence, the
objections are heard by the courts and a final decree is later passed after several years. Experience shows
that once a decree for possession is passed and preliminary decree for the rents/ mesne profits is passed,
the ma er is not given importance and final decrees usually take 5 years or more to be passed after the
preliminary decree. The suit might have been pending for years earlier and if profits or rents are
ascertained long after the preliminary decree, the delay leads to serious injustice.
In my view, there must a uniform practice for courts in all the States to record evidence of rents or mesne
profits, at the trial, and give findings thereon, irrespective of whether a decree for possession is passed or
not.
Similarly in a partition suit, at the stage of preliminary decree the quantum of share and the items of
property which are partable, are ascertained initially and under Order 20 Rule 18(2) a preliminary decree
is passed together with a direction for accounts to be taken. In fact, in some courts in some States, it is
the practice to ascertain rents/profits upto the date of the preliminary decree straightaway when the
preliminary decree is passed. It saves not only time but also renders speedy justice to the parties.
Further, it is needless to stress that basically, in case of mesne profits, the burden of proof rests on the
plaintiff and that mesne profits being in the form of compensation, before claiming mesne profits the
plaintiff have to establish before the court that he was lawful owner of the property and he was deprived
of it by the wrongful possession of the defendant.
Foot notes:
1. AIR 1959 AP 64
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1. Shivangi
Aug 31, 2017 @ 16:00:01
REPLY
2. yadagiriyerra58
Oct 16, 2017 @ 15:34:03
REPLY
3. KA
Oct 03, 2018 @ 03:09:15
REPLY
4. harshamaddur
Feb 18, 2019 @ 16:48:11
Good info. I have been waiting for long to get a simple answer for mesne profits. After FDP for
procession I have to start to fight for mesne profits.
REPLY
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