Section 2(12) CPC states, “‘Mesne Profit’ 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.”
When a person is dispossessed from his immovable property, he has two rights:
- He is entitled to receive possession of property;
- He is also entitled to receive damages for wrongful dispossession.
The mesne profits are a compensation which are penal in nature.
Every person has a right to possess his property. And when he is deprived of such right by another person, he is not only entitled to restoration of possession of his property, but also damages for wrongful possession from that person. The mense profits are thus a compensation paid to the real owner.
The object of awarding a decree for mense profit is to compensate the person who has been kept out of possession and deprived of enjoyment of his property even though he has entitled to possession thereof.
WHO IS LIABLE FOR MESNE PROFIT?
A person in wrong possession and enjoyment of immovable property is liable to mesne profits because wrongful possession of the defendant is the essence of a claim for mesne profits. Following persons are liable for mesne profit:
- a trespasser;
- a person against whom a decree for possession has been passed;
- a mortgagor in possession of mortgaged property after a decree for foreclosure has been passed against him;
- a mortgagor in possession of property even after a decree for redemption is passed;
- a tenant holding over at will after a notice to quit has been served upon him.
Where the plaintiff is dispossessed by several persons, everyone would be liable to pay mesne profit to the plaintiff even though he might not be in actual possession or the profits might not have been received by him. The court in such cases may hold all the trespassers jointly and severely liable, leaving them to have their respective rights adjusted in a separate suit for contribution; or, may ascertain and apportion the liability of each of them. (Fateh Chand v.s Bal Kishan Das,AIR 1963 SC)
In assessing the mesne profits, usually the Court will take into account what the defendant has gained or reasonably might have gained by his wrongful possession of the property. the test is not what the plaintiff has lost by being out of possession but what the defendant gained or might reasonably and with ordinary prudence have gained by such wrongful possession.
The guiding principles for determination of mesne profits are as follow:
- The profits must be accounted of by the person in wrongful possession.
- Restoration of status to the decree holder about the possession of the property.
- Use to which the decree holder would have put the property if he himself was in possession.