ALL YOU NEED TO KNOW ABOUT MESNE PROFIT
The law of nature gives the primary right to compensation against the breach of legal right. Likewise, wrongful interference with the immovable property of another is a legal wrong and law of nature gives primary right to damages or compensation for such legal wrong.
The term ‘mesne profits’ relates to the damages or compensation recoverable from a person who has been in wrongful possession of immovable property. The Mesne profits are nothing but a compensation that a person in the unlawful possession of others property has to pay for such wrongful occupation to the owner of the property.[1] It is settled principle of law that wrongful possession is the very essence of a claim for mesne profits and the very foundation of the unlawful possessor’s liability therefore. As a rule, therefore, liability to pay mesne profits goes with actual possession of the land. That is to say, generally, the person in wrongful possession and enjoyment of the immovable property is liable for mesne profits.
Before comprehending the concept and relevant provision of mesne profits in the Code of Civil Procedure, 1908, it would be appropriate to discuss & understand the concept of ownership and possession in nutshell.
Ownership & Possession
The concept of ownership is one of the fundamental juristic concepts common to all system of law. Ownership consists of an innumerable number of claims, liberties, powers & immunities with regard to the things owned. According to some jurists there is no point in having the concept of ownership without these claims.
The idea of ownership developed slowly with the growth of civilization. So long as the people were wondering from place to place and had no settled place of residence they had no sense of ownership. The idea began to grow when they started planting trees, cultivating land, building their homes. The transition from a pastoral to an agricultural economy held the development of the idea of ownership. People began to think in terms of ‘mine & thine’.
The concept of ownership is easy to understand but difficult to define with exactitude. The Jurists have defined the ownership in different ways.
· 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”.
· According to Hibbert “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”.
From the analysis of aforementioned definitions one can conclude that the ownership is nothing but a right, which is available against every one who is subject to law. Such claim consists of following rights.
1. Right to posses & use,
2. Right to exclude others from possessing & using it,
3. Right to transmit, and;
4. Right to destroy thing owned.
Therefore ownership comprises of a number of rights, and among these rights one of the most significant right is possession of property. Possession is prima facie evidence of ownership and law always protect right to possession. According Savigny protection of possession is a branch of protection to person and as any act of violence to person is unlawful, so is the act that disturbs possession by fraud or force. 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. If the law allows self-help it would certainly lead to breach of peace. Therefore in the interest of public order and safety no one should be allowed to take the laws into his own hands[4]. According to Windschids protection to possession stands on the same ground as protection against injuria i.e. violation of private legal right.[5] Possession is well protected as a part of criminal law with the objective to preserve & maintain peace. Possession is also protected as a part of law of tort.
In the property law, Possession is considered as a sufficient proof of ownership. Every person may keep what he possesses unless some one can prove that he has better title. And the moment some one can prove the better title against the person who was in prior possession, he is entitled to compensation against the unlawful possessor of property. Mesne profits are one such mode of compensation that can be claimed against a person in unlawful possession. Mesne profits are in the nature of damages for being deprived of the benefit, which the person in possession derives from the property.
Origin of the Concept of Mesne profits
The concept of mesne profits has its origin in the medieval period. Under the feudal system, the King owned all land. The King would let out a part of these lands to his barons on the condition that they will provide him with soldiers whenever he wanted to raise an army.
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 the land to 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 chains of tenancies was born.
The person to whom they paid rent became known as the ‘mesne landlord’. The word meant ‘intermediate’ in old French. The phrase was originally ‘mesne rents and profits’ meaning all the rent or profit from the land that could be extracted by the intermediate landlord. In the modern time the term ‘mesne profits’ means the claim that a lawful owner of the property has against the unlawful possessor of the property.
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.[6] 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.
The main object of awarding mesne profit is to compensate the actual owner of the property for all the loss he 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 property even though he 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.
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 disseizin and the restoration of possession.[7] 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) if Code of Civil Procedure.
Section 2 (12) of the Code of Civil Procedure 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 on 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) 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 first and foremost condition for awarding mesne profits is unlawful possession of the occupant of the property. 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.
Ingredients of Mesne profit:
- Claim for Mesne profit may remain floating till the competent court declares the possession of the person as wrongful , but it is not absolute proposition.
- The measure of Mesne profit is not what the owner has lost but it is the value of user to the person in wrongful possession has actually received or might with ordinary diligence have received.
- The measure of Mesne profit can be much more than the rent that was being paid by the person in wrongful possession prior to the date of decree for eviction . This actual rent prior to the date of decree will lose its efficacies and will be replaced by the estimated rent or profit if the owner could prove that higher rent or profit could have been obtained with due diligence.
- Value of user of the property to the person in wrongful occupation will ne at what rent that wrongful could find equivalent accommodation on the date of decree of possession the market rent will form measure of Mesne profit.
- Mesne profit starts running from the date when an eviction decree is passed till the date of possession and not from the date of termination of contractual tenancy , the contractual tenant becomes a statutory tenant . During that period of termination of tenancy to the date when an eviction decree is passed , existing rent will be a far measure of Mesne