A PROJECT

On
MESNE PROFIT

Subject Name: CODE OF CIVIL PROCEDURE AND LIMITATIONS

Supervised by: Submitted by:

Mr Jitendra Gehlot Himakshi Shekhawat

Faculty of Code of Civil Procedure Semester- X, Sec- A

S.S. Jain Subodh Law College

Mansarovar, Jaipur

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 2023

DECLARATION

I hereby declare that the project entitled “MESNE PROFIT” is submitted by me in partial
fulfilment of the requirements for award of the degree of B.A.LL. B from S.S. Jain Subodh
Law College, Mansarovar, Jaipur. It is a result of my own work and efforts. Any material
used or scripted herein by any other author/researcher/commentator and used hereinafter has
been thoroughly acknowledged. The present work has not been accepted for any degree, and
is also not being currently submitted for any other degree.

Himakshi Shekhawat

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 CERTIFICATE

This is to certify that the project assignment of labour law entitled “MESNE PROFIT”
submitted by Himakshi Shekhawat of X Semester Sec-A for the partial fulfilment for
requirement for degree of B.A.LL.B from S.S. JAIN SUBODH LAW COLLEGE, Jaipur
embodies the unified work done under the supervision of Mr Jitendra Gehlot.

Date: Signature:

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 ACKNOWLEGDEMENT

A research work of such great scope and precision could never have been possible without
great co-operation from all sides. Contributions of various people have resulted in this effort.
Firstly, I would like to thank God for the knowledge he has bestowed upon me.

I would also like to take this opportunity to thank Mr. Jitendra Gehlot without whose valuable
support and guidance, this project would have been impossible. I would like to thank the
library staff for having put up with my persistent queries and having helped me out with the
voluminous materials needed for this work. I would also like to thank my seniors for having
guided me and culminate this acknowledgement by thanking my friends for having kept the
flame of competition burning, which spurred me on through these days.
And finally, my parents, who have been a support to me throughout my life and has helped
me, guided me to perform my best in all interests of my life, and all my elders who have
always inculcated the best of their qualities in me.

Himakshi Shekhawat

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 RESEARCH METHODOLOGY

The methodology used in this project is doctrinal includes accessing reference books and
other relevant sources from library and using secondary sources as well. The secondary
sources used in this project include the library of, S.S. Jain Subodh Law College,
Mansarovar, Jaipur and other sources from the internet. On the basis of the knowledge gained
from all of the above mentioned sources a self-analysis of the topic under the study has been
presented in the project. All sources referred to have been given due recognition. The
dimensions of this research include studying of the judgment of the case under the study and
also other cases which relied upon the judgment.

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 TABLE OF CONTENTS

S.NO. PARTICULARS PAGE NO.

1 INTRODUCTION 7

2 MEANING OF MESNE PROFIT UNDER CODE OF CIVIL 8

PROCEDURE
3 ESSENTIAL CONDITIONS FOR MESNE PROFIT 9

4 MESNE PROFIT CAN BE CLAIMED AGAINST WHOM 10

5 CIRCUMSTANCES WHEN MESNE PROFIT CANNOT BE 11

GRANTED
6 CALCULATING MESNE PROFIT 12

7 BURDEN OF PROOF 13

8 POWER OF COURT IN SUIT RELATING TO MESNE PROFIT 13

9 CONCLUSION 14

10 BIBLIOGRAPHY 15

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 INTRODUCTION

Ownership and Possession of a Property are considered as one of the most important legal
rights provided by the law. Moreover, there are many rights, powers, immunities, and
liabilities included under the provisions related to the concept of ownership. Some of those
rights are the right to possession and enjoyment, right to refuse others from using it, right to
transmit, and right to destroy someone’s things. And if there is any kind of unlawful action
that violates the rights of a person in terms of ownership and possession, then that owner
becomes entitled to seek justice in the Court. The court is bound to provide damages and
compensation to the plaintiff and Mesne Profits is one fine example of them.

The concept of Mesne Profits originated during the medieval period when rich barons used to
give lands in tenancy and collect rents from the tenant farmers. The provision for Mesne
profits is provided in the Code of Civil Procedure, 1908.

The underlying principle based on which the Code of Civil Procedure, 1908 functions is ubi
jus ibi remedium that signifies where there is a right, there is a remedy. The concept of mesne
profits has been developed from this principle because it is the law of nature to provide the
right to compensation where there has been an infringement or breach of a legal right. Before
delving into the concept of mesne profit, it is necessary to discuss the meaning of the terms
“ownership” and “possession”. While the former is an exclusive collective right of a man to
possess, enjoy, transmit, destroy a property owned by him, the latter acts prima facie evidence
of the former. The right to possess property is protected in the eyes of law until and unless
another individual claim to have a better title on that property. When this claim arises, the law
acts as a shield to protect the original owner of the property thereby ensuring compensation
from the illegal or unlawful possessor. Mesne profit is a mode of such compensation
facilitating remedy to the aggrieved party refraining the wrongful possessor from enjoying
profits derived from such property.

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 MEANING OF MESNE PROFIT UNDER CODE OF CIVIL
PROCEDURE

Section 2 Clause 12 of the Code of Civil Procedure states that “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 by the person in
wrongful possession”.

The definition provided by Section 2(12) includes the exception of mesne profits which is the
profits obtained from the improvements made by the wrongful possessor in the property will
not fall under the ambit of mesne profits. The three significant takeaways from Section 2(12)
of the Code have been laid down hereunder;

 It is to note that the definition has attached importance to due diligence for obtaining
mesne profits.
 Mesne profits can only be awarded if the property in concern was unlawfully
occupied thereby depriving the original owner of his rights.
 Interest is a fundamental part of mesne profits under Section 2(12).

Whereas, in the words of Delhi High Court, Mesne Profits refers to “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”.1

According to the Legal Dictionary,” Mesne” means intermediate, i.e., middle between two
extremes, a part between the start and the end of a time period. In other words, it can refer to
the profits earned starting from the unlawful possession until the rightful owner gets back the
possession.

From the above statements, it can be interpreted that Mesne Profits are profits or pecuniary
benefits a person has earned or might have received from ordinary diligence by wrongfully
possessing the property of another. And the law gives the owner, the right to claim all the

1
Phiraya Lal alias Piara lal v. Jia Rani, AIR 1973 Del 186.

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profits, only when the unlawful possession has caused him to be deprived of benefits and
profits which he might have received otherwise.

The Madras High Court in a case has observed that the rights of profits generally arise in
three situations2:

 A suit for eviction and recovery of possession of the immovable property from an
unauthorized possessor having no title on the property, along with a claim for past and
future mesne profits.
 When a suit for partition is instituted by a tenant or tenants in common against others
with a claim for an account of past and future profits.
 In the suits for partition by a member of Hindu Undivided family along with a claim
for an account from the manager/head.

Order XX Rule 12 of the Code of Civil Procedure, 1908 lays down the provision for the
passing of the decree by a competent civil court where there exists a suit for recovery of
immovable property possession, rent, or mesne profits. Put simply, a civil court while
presenting the rights of the parties involved in a suit concerning mesne profits, will rely on
Rule 12 of Order XX.

ESSENTIAL CONDITIONS FOR MESNE PROFIT

There are two conditions that need to be fulfilled in order to bring forth a claim for Mesne
Profit. Those conditions are:

 Possession of the property must be unlawful and unauthorized.

 The person must have received some benefits or might have earned profits through
such possession.

It is to be noted that Section 2(12) 3 states any profits received via improvement in the
property by the wrongful possessor are not included as mesne profits.

2
Nataraja Achari v. Balambal Amma, AIR 1980 Mad 222.
3
Civil Procedure Code, 1908.

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And the possessor is neither entitled to claim the expenses incurred due to the improvements,
from the owner as he is legally a trespasser.4

As per Order 2 Rule 4 of the Code, it is necessary that the claim for mesne profits has to be
joined with a suit for recovery for possession of the property and no separate claim will be
entertained.

MESNE PROFITS CAN BE CLAIMED AGAINST WHOM

An individual becomes liable for mesne profit when he or she possess and enjoy the benefits
derived from an immovable property that doesn’t belong to him or her legally. 5 They could
be:

Tenants- If the tenant refuses to leave even after a service of notice to vacate the property.

Trespassers6

Mortgagor- If the mortgagor continues to possess the mortgaged property after a decree for
foreclosure was passed against them.

Mortgagee- If the mortgagee is still in possession of the property after a decree of

redemption.

Any other person against whom a decree of possession has been passed7.

However, in a case where the plaintiff is dispossessed by several persons, then every single
one of them will be held liable to pay mesne profits to the plaintiff, irrespective of whether
they are in actual possession or have received any kind of benefits through the property. The
court may hold the trespassers jointly liable and have their respective rights plead in a
separate suit for contribution and ascertain the liability of each of them8.

For example, ‘A’ owns a farmhouse. ‘B’, ‘C’, ‘D’ & ‘E’ wrongfully claimed the possession of
that farmhouse and makes some profits with only ‘C’ actually living on the premises. This

4
K. C. Alexander v. Nair Service Society Ltd., AIR 1966 Ker 286.
5
Chittoori v. Kudappa, AIR 1965 SC 1325.
6
Sita Ram Lakshmanji v/s Dipnarain Mandal, AIR 1977 SC 1870.
7
Prabhakaran & Ors vs M. Azhagiri Pillai, AIR 2006 SC 1567.
8
Lucy Kochuvareed Vs P. Mariappa Gounder And Ors, AIR 1979 SC 1214 a, (1979) 3 SCC 150, 1979 3 SCR 58.

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has deprived ‘A’ of his right to enjoy the said property, so ‘A’ is entitled to bring forth a suit
for recovery of possession and a claim for mesne profits against all four of them.

CIRCUMSTANCES WHEN MESNE PROFIT IS NOT GRANTED

So far, we have taken into account situations in which mesne profits have been granted to the
original owner because of wrongful possession of the former’s property. It is equally
important to know about the other side of the coin which is the circumstances or scenarios in
which mesne profit has been disallowed by courts of law. They have been listed down
hereunder.

JOINT FAMILY PROPERTY AND PARTIES THAT ARE IN JOINT POSSESSION OF THE
SAME

The Telangana High Court opined that if the immovable property in concern is a joint family
property and both the appellate and the respondent are joint owners of such property then in
such circumstance the appellate cannot claim mesne profits as the respondent is an owner
himself and therefore not in wrongful possession of the said property.9

NO ORDER OR DECREE BY ANY COURT OF LAW TO THE EFFECT OF THE MESNE

PROFITS

Order or Decree by any civil court is the foremost condition to give effect to mesne profits. 10
The grant of mesne profit has been disallowed on grounds that there exists no Order or
Decree by any civil court which can give effect to mesne profit. Therefore, the appellate
became prohibited from the same.

CIRCUMSTANCES IN WHICH PROVISIONS OF SECTION 144 OF THE CODE OF 1908

ARE NOT ATTRACTED

In the case of Murti Bhawani Mata Mandir REP. Through Pujari Ganeshi Lal (D) Through
LR vs. Rajesh & Ors (2019) where the appellant had filed an application under Section 144
of the Code of Civil Procedure, 1908 for restoration of his possession on the disputed
property and for awarding mesne profits, the Supreme Court of India observed that the

9
Smt. Subashini vs S. Sankaramma (2018)
10
Krishna N Bhojwani, Vs. Assessee (2021)

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provision of Section 144 will not be applicable in this case as there was no Decree or Order
by the trial court which would vest the possession to the appellate, nor did any such Order or
Decree mandated the respondent to hand over the disputed possession to the original owner.

LACK OF SUFFICIENT EVIDENCE

In cases of mesne profits, the burden of proof rests solely on the claimant of wrongful
possession of his or her property, it is the responsibility of the claimant to provide sufficient
evidence before the court of law against the illegal possessor before claiming mesne profits.

INITIAL POSSESSION NOT WRONGFUL BUT LATER ASSUMED WRONGFUL

CHARACTER

If a person possesses a property that was not wrongful initially but assumed a wrongful
character in the future, then in such case the owner of the property will not be granted mesne
profits, instead only the fair rent of that property will be provided.11

Although these circumstances are not exhaustive in nature, they are the interpretation of
judgments delivered by Indian courts.

CALCULATION OF MESNE PROFIT

The Civil Procedure Code doesn’t provide any specific criteria as to how the mesne profits
should be assessed. The provision only states that the interest on such profits is included and
any profits derived because of improvement are ruled out. Also, according to the law of
equity, Mesne profits must be in net profits. As Mesne Profits are a form of damages, the
government can’t lay down an invariable rule for its assessment.

So, it’s upon the discretion of the court to determine the quantum of mesne profits based on
the following things:

1. Nature and Condition of the property;

2. Location of the property;

3. Value of the property;

11
Union of India (UOI) and Ors v. Banwari Lal and Sons (2004)

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 4. The actual profit gained by the possessor or reasonably might have received with the
use of the said property.12

The court also measures the mesne profits based on what the defendant has gained or
reasonably might have gained with ordinary diligence by wrongfully possessing the property
and not what the plaintiff has lost because of being deprived of possession.13

BURDEN OF PROOF

According to the law, in a suit for Mesne Profits, the burden of proof lies upon the claimant.
The plaintiff is required to prove that he is the lawful owner of the property and he is being
deprived of his right to enjoy it by the wrongful possession of the defendant.

Only after the ownership and deprivation of rights of the plaintiff are established, he can
claim for mesne profits. And the plaintiff also has to prove what profits he might have
received with ordinary diligence.14

POWER OF COURT IN SUIT RELATING TO MESNE PROFIT

According to Order 20 Rule 12, 15 whenever there is a suit for the recovery of possession, the
court has the discretion of passing a decree

1. For Possession of immovable property.

2. For Collection of mesne profits or directing an inquiry for the same.

3. A preliminary decree directing inquiry about mesne profits acquired before the suit
was instituted; or

4. Directing an inquiry as to mesne profits acquired until the possession is returned, or

relinquished, and before 3 years from the decree.

CONCLUSION

12
Harry Kempson Gray Vs Bhagu Mian, AIR 1930 PC 82.
13
P.L.Kapur Vs Jia Rani, AIR 1973 DEL 186.
14
Ramakka Vs V. Nagesam, AIR 1925 Mad 145.
15
Code of Civil Procedure, 1908.

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Mesne Profits was introduced with the intent to protect the interests of the lawful owner of

the property and at the same time to hold the wrongful possessor accountable by

compensating the owner. However, a court cannot pass a decree for mesne profits unless the

claim is for immovable property only and the plaintiff has placed an explicit demand for it.

If Section 2(12) of the Code is assessed, it can be made clear that there exist a lot of

fundamental questions that the provisions fail to address. While the provision specifies mesne

profits for wrongful possession of a property that originally belongs to someone else, it does

not lay down the parameters on the basis of which mesne profit is supposed to be allowed by

the courts. Not only this, the provision remains silent when it comes to the rate of interest that

is supposed to be imposed along with mesne profit, leaving the entire responsibility on the

courts.

It should also be noted that as mesne profits are a form of damages, the right to sue for mesne

profit is a right to sue for damages. This right cannot be attached or sold in execution of a

decree against the person entitled to the decree under Section 60 of the Code of Civil

Procedure.

We see a variety of methods adopted by the courts to calculate mesne profits. Although

uniform criteria cannot be laid down as the provision has presumed, one cannot ignore that

specificity is the essence of any legislation. Thus, there arises a need to address these

questions and provide logical solutions for better implementation.

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 BIBLIOGRAPHY

ACTS REFERRED:

 CODE OF CIVIL PROCEDURE

SITES REFERRED:

 https://lawcorner.in/what-are-mesne-profits-how-it-is-measured/#_ftnref11
 https://blog.ipleaders.in/mesne-profits-under-the-code-of-civil-procedure-1908
 https://thefactfactor.com/facts/law/civil_law/civil-procedure-code/mesne-profits/
14645/
 https://www.taxathand.com/article/15768/India/2020/High-Court-rules-mesne-profits-
from-unauthorized-occupation-of-property-are-revenue.

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