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/her,
the latter acts a 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 Profits is a
mode of such compensation facilitating remedy to the aggrieved party refraining
the wrongful possessor from enjoying profits derived from such property.
The dictionary meaning of the term Mesne Profits
is the profits of an estate
received by a tenant in wrongful possession and recoverable by the landlord. It
is further explained as the profits which have accrued while there was a dispute
over land ownership. And if it is determined that the party using the land did
not have legal ownership, the true owner can sue for some or all of the
profits made in the interim by the illegal tenant, which are thus called
Considering the legal sanction of the term, Mesne Profits
property has been defined under Section 2 (12) of the Code of the Civil
Procedure, 1908 as 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.
measure of Mesne Profits is the profits which the person in wrongful
possession actually received or might with ordinary diligence have received from
the property, together with interest on such profits, and not what the original
Claimant loses by his/her exclusion from the property. Mesne Profits include
those profits which the person in wrongful possession of such property actually
received or might with ordinary diligence have received therefrom.
possession of the Defendant is the very essence of a claim for Mesne Profits and
the very foundation of the Defendant's liability therefor. Liability to pay
Mesne Profits goes with actual possession of the land. Generally, the person in
wrongful possession and enjoyment of the immovable property is liable for
Mesne Profits. A person is said to be in wrongful possession when he/she enjoys
such possession despite, another person is entitled to it under law.
Concept Of Ownership & Possession
As defined by 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. Ownership consists of an innumerable claims, liberties, powers &
immunities with regard to the things owned. The idea of ownership developed
slowly with the growth of civilization. The transition from a pastoral to an
agricultural economy made the idea of ownership as developmental phenomena. The
concept of Ownership is easy to understand but difficult to define with
exactitude. In Black's Law Dictionary, Ownership has been defined as collection
of rights of rights to use & enjoy property, including the right to transmit it
Possession is prima facie evidence of Ownership and law always protect right to
possession. Savigny regards protection of possession as an extension of the
protection of the person. 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.
According to Windschids, protection to possession
stands on the same ground as protection against injuria i.e. violation of
private legal right. In the property law, Possession is considered as a
sufficient proof of Ownership. Every person may keep what he/she possesses but
contrary to this, if the possession is illegal then the person who has legal
possession over the property may claim damages including the profits which the
illegal possessor may have accrued from the property. Those profits are termed
as Mesne Profits.
Origin Of The Concept Of Mesne Profits
The concept of Mesne Profits has its origin in the medieval period. Under the
Feudal System, the owner of the land (at that time King used to be the Sole
Owner of all the land) would let out a part of these lands to others on the
condition that they will provide their service and labour to the Owner.
Soon this turned into a nice way of raising money by charging rent for the land.
In turn, the barons would let out part of land to the tenant farmers and they
would pay rent - usually in kind, by providing livestock or crops - for the
privilege of being able to keep some of the produce for themselves. Thus the
concept of chain of tenancies was born.
The person to whom they paid rent became known as the Mesne Landlord. The word
meant intermediate in Old French. phrase was originally Mesne Rents and
Profits meaning all the rent and profit from the land that could be
extracted by the intermediate landlord. In the modern time, the term Mesne Profits
means the claim that lawful owner of the property has against the unlawful
possessor of the property. The word Mesne is derived from the root word demesne. This
concept is common in countries which follow English Legal System including many
former British Colonies.
Nature Of Mesne Profits
All the legal system, which governs the civilized nations of the world agree
upon the basic principal of natural justice to obtain reparation for wrongs or
infringement of legal rights. In other words, 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.
main object of awarding Mesne Profit is to compensate the actual Owner of the
property for all the loss he/she has suffered. In other words the object of
awarding a decree of Mesne Profits is to compensate the person who has been kept
out of possession and deprived of enjoyment of his/her property even though
he/she was entitled to possession of property, and the word compensation would
embrace in its purview any actual loss suffered by a lawful Owner.
The idea of
granting Mesne Profits as compensation normally connotes reparation for some
past wrongful act i. e unlawful possession. The burden of proof would depend
on the nature of the claim made by the Plaintiff. If the Plaintiff limits
his/her claim to the actual profits which the Defendant is said to have
received, obviously, in such a case, as the Defendant is the person who had
special knowledge of the actual receipt of the profits received by him/her, the
burden would lie on him to prove the actual receipts made by him/her.
If, on the
other hand, the Plaintiff wants to make the Defendant liable for the profits
which the Defendant ought to have received by the use of ordinary diligence in
event, it cannot be said that the matter is within the special knowledge of the
Defendant and the burden of proof would rest on the Plaintiff to prove the
probable receipts in respect of the disputed property.
Scope Of Mesne Profits
The scope of Mesne Profits is very wide in its own circle. Until now it is clear
that Mesne Profits are granted on property but are restricted only to those
profits which are derived by a person in wrongful possession of property
belonging to another. They have no application to profits accountable by a
person not in wrongful possession of the property such as by a co-sharer, before
partition. The possession of a co-sharer can never be wrongful as he/she has
right and interest in every inch of the undivided property.
Where there is a
severance in the status of a Joint Hindu Family and the coparceners thereupon
become merely tenants-in-common, in a Suit for Partition filed by one of them
against the others the only right he/she has is the right to claim accounts of
the past and future Mesne Profits until the date of actual partition by metes
and bounds after making all just allowances in favour of the collecting
tenant-in-common. The tenant-in-common who is in possession cannot be said to
be in wrongful possession though he may be liable to render accounts relating to
his/her share, such a claim for accounts is not a claim for Mesne Profits. Mesne
Profits can be claimed regarding immovable property and not with regard to
Legal Provision Related To Mesne Profits
Mesne Profits may be defined as the profits or other pecuniary benefits, which
one who disposes the true Owner receives between disseizing and the restoration
of possession. Therefore Mesne Profits corresponds to the profits which the
person in wrongful possession is receiving or might receive with due diligence
for the wrongful occupation of property. Mesne Profits are defined under
Section 2 (12) of the Code of Civil Procedure, 1908.
Section 2 (12) of the Code of Civil Procedure, 1908 provides that: [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.]
From the analysis of the above stated definition one can conclude that Mesne
Profits are the profits, which the person in unlawful possession actually
earned or might have earned with the ordinary diligence. According to Section 2
(12) of the Code of Civil Procedure, 1908 a person becomes entitled to Mesne
Profits only when he/she has right to obtain possession but another person
whose occupation is unauthorized keeps him/her deprived of that possession. The
first and foremost condition for awarding Mesne Profits is unlawful possession
of the occupant of the property.
In [Phiraya Lal alias Piara Lal Vs Jia Rani
AIR 1973 Del 186], Hon'ble 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 Profits. The Section further provides
that Mesne Profits also include interest on such profits. However it explicitly
excludes any profit earned due to improvement in the property made by the person
in unlawful possession of such property.
In [Nataraja Achari Vs Balambal Ammal, AIR 1980 Mad 2228], taking into
consideration the definition of Mesne Profits provided under Section 2 (12),
Hon'ble High Court observed that there are three different types of cases in
which question ofrights of profits arise:
- 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.
- 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.
- Suits for Partition by a member of Joint Hindu Family with a claim for
an account from the Manager.
The Court observed, 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 Plaintiff's remedy is to have
an account of such profits making all just 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/her right would have to be worked out on that basis.
The second legal provision relating to Mesne Profits is provided in Order XX
Rule 12 of Code of the Civil Procedure Code, 1908.
It provides for the
provisions of decree for possession and Mesne Profits as:
- 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;
- 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;
(b-a) For Mesne Profits or directing an inquiry as to such Mesne Profits;
- Directing an inquiry as to rent or Mesne Profits from the institution of
the Suit until:
- The delivery of possession to the decree holder,
- The relinquishment of possession by the Judgment-debtor with notice to
the Decree-holder through the Court or,
- The expiration of three years from the date of the Decree, whichever
event first occurs.
- 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.
Order XX Rule 12 of the Code of Civil Procedure, 1908 provides for the passing
of a decree in a Suit for the recovery of possession of immovable property and
for rent or Mesne Profits.
Order XX Rule 12 of the Code of Civil Procedure, 1908 makes an exception to the
general rule that a Plaintiff can only sue on such cause of action as has arisen
on the date of instituting his/her Suit; the object is to avoid multiplicity of
litigation, as it would be clearly inconvenient and unfair that the person
unlawfully kept out of possession of his/her lands should be obliged to file
Suits every three years for Mesne Profits accruing after the institution of
his/her Suit in ejectment.
The Rule is not mandatory but merely directory. The
Court has discretion to direct an inquiry into future Mesne Profits; it is under
no obligation to do so. Direction as to future Mesne Profits is within
the discretion of the Court. Irrespective of whether the Plaintiff has prayed
for them or not, if the Court thinks fit to give direction as to future Mesne
Profits it can give direction as to future Mesne Profits under Order XX Rule
12 of the Code of Civil Procedure, 1908. The Court has only to see whether
the case of the Plaintiff is governed by Order XX Rule 12 of the Code of Civil
Procedure, 1908. In case, if it is applicable, the Court is fully empowered to
grant future Mesne Profit also.
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) of the Code of Civil Procedure, 1908 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 the Court to determine the rate of
interest but the same should not exceed six per cent per annum.
In [Mahant Narayana Dasjee Vs Tirupathi Devasthanam, 1965 SC 1231], the Hon'ble
Supreme Court observed that:
Under Section 2 (12) of the Code of Civil
Procedure, 1908 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/herself
gets the benefit of the interest on such income
In [Tarquino Raul Henriques Vs Damodar Mangalji & Co. Pvt. Ltd., AIR 1989 Bom
309], the question directly came up for the consideration before the Hon'ble
Bombay High Court. In this case Appellate filed review application against the
order of the Hon'ble Court. The impugned order granted Mesne Profits but it was
silent as far as interest on such profits was concerned. It was, therefore,
urged by the Appellate that the interest being an integral part of the Mesne
Profits it was implicit in the order.
On the other hand Defendants contended
that grant of interest is discretionary and once the impugned order is silent on
the point of interest it is safe to assume that the interest was negative. The
issue was whether the grant of interest is implicit when an order for Mesne
Profits is directed under the Code of Civil Procedure, 1908.
the observations of the Supreme Court in N. Dasjee v. Tirupathi Devasthanam
(supra) and the definition of the term Mesne Profits under Section 2 (12), the
Court held that the expression together with interest on such profit clearly
indicates that the Mesne Profits would not only include the actual damage
suffered as a result of wrongful possession, but also the interest accrued
thereon and in that sense the Mesne Profits would always comprise both the
damage and the interest and, therefore, the grant of interest is implicit in
the Mesne Profits.
Assessment of the Mesne Profits
In tort claims and in breach of contract claims, damages are sometimes measured
as the loss in monetary value that one party experiences as a result of another
party's alleged wrongful actions. That wrongful act may be a breach of contract,
an act causing injury (e.g., tort, infringement, or fraud), or a violation of a
duty that resulted in a loss of revenue, profits, or possibly long-term value
(i.e., lost profits). In a lost profits claim, the Plaintiff should prove that
the injury and the damages were caused by the Defendant.
The Plaintiff typically
retains an analyst to assist counsel in proving that but for the alleged
wrongful actions of the Defendant, the affected business would have realized a
certain amount of income (e.g., profits or cash flow) during the damages
measurement period. The objective of the lost profits analysis is to restore the
Plaintiff to an equivalent economic position but for the alleged wrongful
act—and not to make the Plaintiff better off than it otherwise would have been.
The Civil Procedure Code, 1908 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.
So, it's upon the discretion of the Court to determine the quantum of Mesne
Profits based on the following things:
- Nature and Condition of the property;
- Location of the property;
- Value of the property;
The actual profit gained by the possessor or reasonably might have received with
the use of the said property.
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
Mesne Profits are in the nature of damages which the Court may mould according
to the Justice of the case, and each case must be dealt on merits. Mesne Profits
are something which a Plaintiff cannot evaluate; it is solely for the Court to
determine on the evidence before it. The amount of Mesne Profits to which the
rightful owner of the property is entitled is not fixed either by an agreement
or some statute and depends on the result of the inquiry conducted by the Court
with a view to ascertain the amount which the rightful owner of the property
is entitled to get from the person in wrongful possession. Mesne Profits
are, therefore, un-liquidated damages.
The true test for assessment of Mesne
Profits is clearly not what a person has lost by his/her exclusion, but what
the trespasser has or might reasonably have made by his/her wrongful
possession. In determining the Mesne Profits, the Court should aim at doing
Justice between the parties having regard to all the circumstances of the case,
the object being to see that the person wrongfully kept out of the possession
is put in the same position.
In the case of agricultural land the true test in
calculating Mesne Profits is what the ordinary prudent agriculturist would have
grown on the land from which the Plaintiff has been excluded. [Jagannath
Prasad & Ors. Vs Badiul Mulk Khan & Ors., AIR 1954 Pat. 447 at P. 448 (D.B)].
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.
Now the normal measure of Mesne Profits is the value of the user of the land to
the person in wrongful possession. A person in wrongful possession of immovable
property has to pay compensation computed on the basis of profits he/she
actually received or with ordinary diligence might have received.
In [Dr. J Bhakthavasala Rao & Ors. Vs Industrial Engineers, Nellore & Ors.,
AIR 2005 AP 438], Hon'ble Andhra Pradesh High Court observed that, fixing the
damages for the use and occupation of the Suit building by its very nature,
involves adjudication of a pure question of fact and there exists hardly any
uniform and standard pattern of assessment in this regard. The Court should take
into consideration comparative assessment of the nature, location etc of the
Suit premises vis-à-vis similar characteristics of premises in the surrounding
area. It is, however, very difficult to find the premises of similar nature,
size and quality of at the same location.
Even if there exists any broad similarity in this aspect, the rent in respect
of such premises would depend, mostly, upon the need of lessee and the
circumstances under which the leases are granted. Prevalence of amity or enmity,
as the case may be, between the landlords and the tenants and the duration of
lease are certain factors, which would have bearing of this. And, therefore, the
Mesne Profits cannot be determined solely on the basis of rental value of the
Moreover, the law of equity requires that Mesne Profits should be the net
profits i.e. the profits derived after making deduction toward necessary
expenditure for earning such profits. Therefore, all such payment made by the
person in wrongful possession, as the Plaintiff would have been bound to make
if he/she had been in possession, should be deducted from the gross earnings.
These expenses include, expenses incurred for maintenance of property, cess paid
on the property etc, depending upon the nature of the property. For instance in
case of agricultural land cost of cultivation, seasonal fluctuation etc should
The right to possess is a fundamental right that all the people living in the
country are granted. If the rightful owner is stripped of his/her possession
while also losing the profits he/she should have earned from that possession,
he/she should be credited with damages. The idea of Mesne Profits comes into
play in this scenario. Mesne Profits are profits that an individual is entitled
to but the Defendant has kept him/her out of the courtroom. Simply put, Mesne
Profits refer to leases or fees. Profits earned during the rightful owner's
exclusion from his/her estate as well as interest earned on the benefit.
Typically, a lawsuit for Mesne Profits is filed along with an action to reclaim
Legal rights and remedies for the breach of legal rights are two sides of the
same coin. Stated simply legal rights and remedies for the breach of these
rights have always co-existed. Accordingly unlawful interference with the
immovable property of another person amounts to breach of a legal right; and
there is remedy in the form of Mesne Profits for wrongful interference with the
property. Section 2 (12) of the Code of Civil Procedure, 1908 provides for Mesne
According to Section 2 (12) the term Mesne Profits relates to the 'the damages
or compensation recoverable from a person who has been in wrongful possession
of immovable property. Then Order XX Rule 12 of the Code of Civil Procedure,
1908 provides for the decree for possession and Mesne Profits. It states the
provision for application of Suit to be filed before the Court for possession of
the property along with the Mesne Profits which aroused or may have been
profited. The term Mesne Profits, under Section2 (12) of Code of Civil
Procedure, 1908 also includes within its ambit interest on such profits, but it
does not include profits made due to improvement in the immovable property.
Plethora of Judgment signifies that the wrongful possession of the Defendant
is the very essence of the claim of Mesne Profits. And the moment the
Plaintiff is successful in establishing the wrongful possession of the other
person he/she is entitled to claim Mesne Profits. Mesne Profits being in the
nature of compensation, the enactment rightly does not lay down any uniform
standard for the assessment of Mesne Profits.
And the assessment of the quantum of Mesne Profits is rightly left at the
discretionary power of the Court depending on the facts and circumstances of
each case. The Courts are required to consideration various factor while
determining the quantum of Mesne Profits and thereby use their power
Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature,
Email: [email protected], dschau08[email protected]