Plea For Mesne Profit To Be Rejected If No Evidence Of Wrongful Possession, Not Sought In Original Suit: Rajasthan High Court

The Rajasthan High Court recently held that a plea for mesne profit can be rejected if such relief was not specifically sought in the original suit and there was no evidence indicating wrongful possession by the appellant or any profitability associated with the use of the property.

Justice Rekha Borana thus confirmed an interim order granting possession of a property to the appellant until the final resolution of the appeal.

"no prayer for mesne profit having been made by the plaintiff in the suit, no order for grant of mesne profit can be passed in his favour. Further, there is no material available on record to show that the appellant is earning any profit out of the user of the land in question." 

The Court was dealing with a stay petition, wherein the appellant sought the confirmation of an interim order until the final resolution of the appeal. However, the respondents prayed for vacation of the same and rejection of the stay petition. and they prayed for a grant of ‘mesne profit’ in the eventuality of the interim order being confirmed. 

The appellant contended that due to an ongoing revenue suit for partition, the possession of the property cannot be transferred until the determination of the appellant's rightful share, drawing support from the legal precedent in Ramdas v. Sitabhai, (2009) 7 SCC 444. 

The appellant further asserted that the awarding of mesne profit is inappropriate during the pendency of a partition suit, referencing the judgment in Thamanna Nukia Shetti v. Velapa Appalaraju & Ors. It was argued that establishing wrongful possession is contingent upon the execution of a conveyance subsequent to a decree for specific performance, as held in judgments like Purushothaman vs. Thulasi [1994 SCC Online KER 274].

Furthermore, the appellant emphasised the agricultural nature of the property, highlighting its lack of profit generation, thereby presenting a case against the grant of mesne profit.

In response, the respondent pointed out the appellant's omission in filing a counter to the reply on the stay petition arguing that hence, the facts as stated by the respondent remain uncontroverted. It was also argued that after a decree having been passed in favour of the respondent, the appellant, who is a judgment-debtor, is under a mandatory obligation to pay the mesne profits qua the user of the land. Thus, it was prayed that the stay petition be dismissed or if the interim order is confirmed in favour of the appellant, he be directed to pay appropriate mesne profit to the respondent. 

Upon careful consideration, the court took note of the undisputed execution of the 'agreement to sell' and the absence of possession being transferred to the plaintiff. Citing established legal precedents, the court asserts that the transfer of possession is contingent upon the partition of the property. Consequently, the court deems it inappropriate to vacate the interim order.

"it being an admitted position that the property in question has not been partitioned by metes and bounds, this Court cannot direct for transfer of possession to the plaintiff at this stage. Hence, the interim order dated 13.12.2018 cannot be vacated and deserves to be affirmed."

Moreover, the court rejected the plea for mesne profit, highlighting that such relief was not specifically sought in the original suit. It further emphasizes that there is a lack of evidence indicating wrongful possession by the appellant or any profitability associated with the use of the property.

"to hold a person liable to pay mesne profit, the basic and the foremost finding that he is in wrongful possession of the property, is a must." 

Upon going through relevant precedents, the Court reiterated that until a conveyance is actually executed pursuant to an agreement for sale, the promisee under the agreement is not entitled to any proprietary interest in the property at all. Even on the passing of a decree for a specific performance, no title passes until a conveyance is actually executed by the Defendant in obedience to the decree or orders of the court in execution of the decree.

"Until the title actually passes to the plaintiff, the defendant continues to be the owner of the property and he cannot be said to be in unlawful possession thereof so as to hold him liable for mesne profits."

As such, the court confirmed the interim order, imposing restrictions on the appellant from alienating the property during the intervening period. The appeal was posted for hearing on 04.04.2024.

Case Title: Hariram v. Harish Kumar

Appearance For Appellant: Advocate Pratyushi Mehta

Appearance For Respondent: Advocate Narendra Thanvi

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