When plaintiff cannot apply for ascertainment of future mesne profits?

In view of these decisions, the principles can be analysed in the following manner:

(a) In case the plaintiff claims past and future mesne profits and such a claim is allowed in the decree, it is open to apply for the ascertainment of past and future mesne profits.

(b) If no claim is made at all for mesne profits, there can be no decree for it and then the question of ascertainment does not arise.

(c) If, however, the plaintiff claims mesne, profits but the claim is refused, then a petition for ascertainment is not maintainable.

(d) Even if the claim is for past mesne profits only, it is open to a court to allow future mesne profits as well and in that case plaintiff can apply for ascertainment of even future mesne profits.

(e) If the claim is for past mesne profits only and the court allows only this claim in the decree and keeps silent about the future mesne profits, the plaintiff cannot apply for ascertainment of future mesne profits as they will be deemed to have been refused.

Patna High Court

Tausif Ahmad And Ors. vs Munshi Baharuddin And Ors. on 1 January, 1800

Equivalent citations: AIR 1965 Pat 436

Bench: R Narasimham, T Nath

1. This letters patent appeal by defendants 4 to 8 is directed against me judgment and decree of Rajkishore Prasad J. affirming the order of the Subordinate Judge, second court, Purnea, in Title Suit No. 20 of 1951. The facts giving rise to this tip-peal are shortly these.

Plaintiff-respondent 1 instituted a title suit No. 20 of 1951 against the appellants and others (defendants) for recovery of possession of lands appertaining to khata Nos. 210 and 211 of khewat No. 64, in village Sahpur, Mahal Bidhachan, touzi No. 372. The plaintiff further claimed a sum of Rs. 3,000/- as per accounts given in the plaint in respect of mesne profits for 1356, 1357 and 1338 Mulki. This suit was decreed ex parte on 30-7-1953 by the Subordinate judge of Purnea. The plaintiff got a decree for mesne profits and the amount thereof was to be determined in a subsequent proceeding. Subsequently, the plaintiff filed an application in the trial court on 27-7-1956 for ascertainment of mesne profits from 1356 Mulki till the date of delivery of possession and delivery of possession according to him, was on 10-6-1954. The appellants (defendants 4 to 8) objected to it on the ground that there was neither a prayer in the plaint for recovery of future mesne profits nor there was a direction in the decree for ascertainment of future mesne profits. This objection was overruled by the Subordinate Judge on 24-2-1958 and he held that the decree-holder was entitled to get mesne profits ascertained upto the date of delivery of possession. Defendants 4 to 8 and some other defendants preferred an appeal against this order but the appeal was dismissed by Rajkishore Prasad J., holding that the trial court had the power under Rule 12 of Order 20 of the Civil Procedure Code to direct an enquiry with regard to the future mesne profits. Hence, defendants 4 to 8 have preferred this letters patent appeal.

2. Learned single Judge took the view that the plaintiff had claimed mesne profits in general terms in the plaint but he did not specifically mention future mesne profits, although he mentioned past mesne profits. He was further of the view that the Court, while decreeing the plaintiffs suit ex parte had decreed the plaintiff's suit for possession and mesne profits also and directed an enquiry to be made into the amount of mesne profits in a subsequent, proceeding. Learned counsel for the appellants urged that the plaintiff had not claimed future mesne profits in the plaint and there being no relief for future mesne profits it was not allowed to him by the decree. He contended that the plaintiff had claimed only past mesne profits and that was clear from the various recitals of the plaint itself.

It is thus necessary to consider the various statements made in the plaint and the reliefs asked for from this point of view. The case of the plaintiff was that he had purchased 16 annas touzi No. 372 of Collectorate, Purnea, in mouza Sahpur, Mahal Bidhachan, on 26-3-1947 at a revenue sale by public auction and got possession thereof on 28-12-1947 after obtaining sale certificate and a writ for delivery of possession. The plaintiff claimed that by this purchase at the revenue sale the encumbrances were annulled and the istimrari rights of defendants 1 to 3 (heirs of Mabud Bux) and the rights acquired by the ancestors of defendants 4 to 8 were extinguished, meaning thereby, that they had no right to continue in possession of the lands in question after the delivery of possession to the plaintiff. The plaintiff asked defendants 1 to 8 to give up possession but they refused to do so. Hence the plaintiff was entitled to a decree for recovery of possession and mesne profits. The plaintiff valued the land in suit at Rupees 3,000/- and, apart from it he claimed Rupees 3,000/- as mesne profits according to the account given in the plaint. Thus, the total value of the suit was Rs. 6,000/-. The plaintiff claimed A decree for recovery of khas possession over the suit lands of khewat No. 64, khata Nos. 210 and 211 on dispossession of the defendants.

Relief No. C reads as follows:

"That a decree for Rs. 3,000 /- as per accounts given below in respect of mesne profits may be passed by the Court in favour of the plaintiff against the defendants."

3. The account given in the plaint indicates that mesne profits were claimed for 1356, 1357 and 1358 Mulki. The plaintiff no doubt claimed mesne profits but claim was limited to past mesne profits only. There is nothing in the plaint to indicate that the plaintiff either directly or indirectly made a prayer for recovery of future mesne profits. Taking into consideration relief No. C and the account, it will not be correct to hold that the plaintiff had claimed mesne profits in general terms. The possession of the defendants might be wrongful, but it is open to a plaintiff to ask for a decree for recovery of possession only without claiming any mesne profits. It is further open to a plaintiff in such a case to claim both past mesne profits and future mesne profits. He is further at liberty to claim only past mesne profits and give rip the future mesne profits. In the present case, for reasons best known to the plaintiff, he did not choose to claim future mesne profits and, on a construction of the plaint 1 am of the opinion that only past mesne profits were claimed and not future. Next comes the ex parte decree passed by the Subordinate Judge on 30-7-1953. The learned Subordinate Judge held inter alia, as follows:

"The plaintiff entitled to eject all the defendants.

The plaintiff has prayed for mesne profits also. The plaintiff is entitled to this relief. The determination of the amount of mesne profits is subjected to subsequent proceedings and the same will be determined by the appointment of a pleader Commissioner.

The defendants are ex parte. The plaintiff will get costs at the usual ex parte scale. The mesne profits will carry interest at 6 per cent per year."

4. This decree has to be read along with the relief claimed in the plaint. The Subordinate Judge, while allowing the claim for mesne profits has referred to the prayer made in the plaint in this respect and he came to the conclusion that the plaintiff was entitled to the relief for mesne profits. The position thus is that the trial Court granted a decree for mesne profits in accordance with the relief and the prayer for mesne profits made in the plaint. The plaintiff having made a prayer for only past mesne profits, the effect of the decree in the terms mentioned above was that the Court granted a decree for past mesne profits only and not future mesne profits. I am, therefore, of the view that the plaintiff got a decree only for past mesne profits and not for future mesne profits by the decree dated 30-7-1953.

5. Order 20 Rule 12(1) of the Civil Procedure Code provides as follows:

"Where a suit is for the recovery of possession of immoveable property and for rent or mesne profits, the Court may pass a decree-

(a) for the possession of the property

(b) ............

(c) directing an inquiry as to rent or mesne profits from the institution of the suit until-

(i) the delivery of possession to the decree-holder, * * * *"

According to this rule, a decree can be passed in a suit for possession ot immovable property for rent or mesne profits, past and future against a person in a wrongful possession of such property. This rule enables court to pass a decree for future mesne profits as well so as to avoid multiplicity of suits, but there is a discretion in the court as regards granting a decree for future mesne profits. Clause (2) of this rule provides that "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". The proceedings in the final decree should relate to matters which were provided in the preliminary decree as to an account for mesne profits. In case an inquiry has been directed in the preliminary decree for future mesne profits, it can be inquired into before passing a final decree, but if there is no direction in the preliminary decree for ascertainment of future mesne profits, then it is not open to a plaintiff-decree holder to apply for the ascertainment of future mesne profits and the court should not go beyond the terms and directions contained In the preliminary decree. Even if the plaintiff does not claim future mesne profits in the plaint, it is open to the court at the time of passing a preliminary decree to direct for the ascertainment of future mesne profits, but there must be such direction which alone can entitle a plaintiff-decree holder to apply for ascertainment of future mesne profits.

6. Learned counsel for the appellants referred to Raghu Mahton v. Bulak Mahton, AIR 1953 Pat 289. In the plaint of the suit giving rise to that appeal, there was no specific claim either for past or future mesne profits, but the plaintiff had paid Re. 1/- as court-fee on the amount of future mesne profits as well. The two other claims were for possession or, in the alternative, for refund of Rs. 1800/- with interest. Apart from claiming those reliefs for possession and refund of Rs. 1800/-, the plaintiff had asked in general terms for other reliefs to which he might be entitled according to the discretion of the court. The learned Munsif in that case, took the view that this general relief was wide enough to embrace a claim for mesne profits, on the principle that when a person obtained a decree for possession of immovable property, the defendant would be answerable to the plaintiff for mesne profits until he delivered possession to the decree-holder or at least relinquishes his possession with notice to the decree-holder through the court. The provisions of Order 20 Rule 12 were considered and it was observed that this rule no doubt made an exception to the general rule that a plaintiff could only sue on such cause of action as had arisen on the date of instituting his suit, but the plaintiff in such a suit could not claim future mesne profits as a matter of right. Das J. (as he then was) observed as follows:

"......the cause of action for such profits not having arisen to him at the date of the suit, though Order 2, Rule 4, permits the joinder of a claim for mesne profits in a suit for recovery pf immovable properfty; therefore, it has been held that the power of the Court to award mesne profits subsequent to the suit is discretionary, and a mere omission, as distinguished from a refusal, to grant future mesne profits asked for, has been held not to bar a fresh suit for that relief. It may even be open to the Court to grant future mesne profits as part of a general relief to which a plaintiff is entitled; but it is not correct to say that the Court is obliged to award future mesne profits when no claim for mesne profits is made, or that, when a claim for mesne profits is made either specifically or as part of a general relief, the Court must grant it. It is clear that in the case before me no specific claim for future mesne profits was made; nor was such a claim allowed .... It is, I think, well established that where a claim for mesne profits is made and refused it is not open to the plaintiff to ask for an ascertainment of mesne profits. Similarly, when no claim for mesne profits is specifically made by the plaintiff and the Court awarding possession necessarily and intentionally omits any reference to a claim for mesne profits, it is not open to the plaintiff to say that the suit is still pending and he is entitled to make a claim for future mesne profits at a time when a large part of the claim is already barred by time. This point was raised and dealt with by a Division Bench of this Court in Lalji Singh v. Dwarka Singh, S. A. No. 166 of 1945 dated 16-12-1948 (Pat). Mahabir Prasad, J. who gave the leading judgment, said as follows:

'It is obvious that there being no direction in the decree passed in the suit for possession to the effect that the plaintiff was entitled to mesne profits which he could get ascertained in a subsequent proceeding, the application tiled by the plaintiffs with a prayer for appointment of a commissioner for ascertainment of mesne profits could not be entertained by the Court, and the Court clearly had no jurisdiction to institute any such proceeding. The decree, therefore, for mesne profits passed by it, which is under appeal, is clearly without jurisdiction and must be set aside.' It seems to me that the position is exactly the same in the present case."

In Ramsewak Kaji v. Ramgir Choudhary, AIR 1958 Pat 448 the plaintiffs wanted a declaration that they were entitled to irrigate their lands from river Sheoraha and that defendants had no right to obstruct the flow of the river. The plaintiffs further claimed a sum of Rs. 4500/-as damages caused to their crops due to the construction of a bandh by the defendants in that river and prayed for a decree for future damages. Issue No, 8 related to the question as to whether the plaintiffs were entitled to damages and if so, how much? At the instance of the plaintiffs, the court left the question covered by this issue open for future determination. The plaintiffs got a decree with regard to the declarations asked for. Subsequently the plaintiffs filed an application in the said suit for determination and ascertainment of damages from 1352 Fasli to 1361 Fasli and claimed Rs. 47,670/8/- as damages. The defendants objected to the determination of the damages in the suit on the ground that the right of the plaintiffs to get damages was not determined and as such the court had no jurisdiction to ascertain the amount of damages. This objection was overruled and the defendants filed an application in revision before the High Court.

On behalf of the defendants-petitioners, a contention was raised that unless the right of a plaintiff to get damages or mesne profits was determined in the suit itself, no proceeding could be taken for ascertainment of the amount of damages or mesne profits. It was further urged that the plaintiffs not having been given a decree entitling them to damages and mesne profits, their right to get the same could not be determined after the disposal of the suit. Dealing with these contentions, R.K. Choudhary J. observed as follows:

"In my opinion, the question with regard to the right of a plaintiff to get damages or mesne profits has necessarily to be determined in the suit itself and, in absence of a decree entitling him to get the same, the court has no jurisdiction in a subsequent proceeding either to ascertain the liability of the defendants to pay damages or to ascertain the amount of damages.

Before a court can proceed with an enquiry for ascertainment of damages or mesne profits, there must be a decree in favour of a plaintiff entitling him to damages or mesne profits. The enquiry for ascertainment of damages or mesne profits has necessarily to end in the passing of a final decree but, before such enquiry could be made, that right must be created by the preliminary decree itself. In the present case no such right had been declared in the preliminary decree and, therefore, the court had no jurisdiction to start any enquiry in that regard.

The view that I have taken gains support from a Bench decision of this court in Second Appeal No. 166 of 1945, dated 16-12-1948 (Pat) in which it was held that, there being no direction in the decree passed in the suit for possession to the effect mat the plaintiff was entitled to mesne profits which he could get ascertained in a subsequet proceeding, the application filed by the plaintiff with a prayer for appointment of a commissioner for ascertainment of mesne profits could not be entertained by the court and the court clearly had no jurisdiction to institute any such proceeding".

His Lordship referred to Atchayya v. Appalaraju, AIR 1947 Mad 109 in which Chandrasekhara Aiyar, J. had taken the view that for a final decree there must be a preliminary decree, and the preliminary decree must say something which the final decree was to carry into effect and where the preliminary decree awarded no future mesne profits, there could be no final decree awarding the same. Applying these principles, R.K. Choudhary J. held that the Court could not institute a proceeding for ascertainment of damages unless the decree gave in terms any right to the plaintiff to be entitled to any damages.

7. Our attention has been drawn to another decision of this Court in Mt. Pulwa v. Brijnandan Prasad AIR 1959 Pat 397. It appears that the plaintiffs (in that case) brought a title suit for a declaration of title and recovery of possession of certain properties and also for mesne profits. The suit was decreed by the Additional Munsif of Monghyr on 29-6-1946 and subsequently that decree was affirmed by the District Judge and the High Court. The plaintiff-decree, holders filed an execution case in 1949 for recovery of possession but an objection was filed by one Wali Mohammad who claimed to be a purchaser of the property at a Court sale. His objection was allowed under Older 21 Rule 58 of the Code of Civil Procedure and thereafter a suit was filed in accordance with Order 21, Rule 63. The plaintiffs then filed an application for ascertainment of mesne profits. Defendants raised several objections, hut all of them were overruled by the Munsif and it was held that the plaintiffs were entitled to mesne profits till the date of dispossession, namely, from 30-5-1940 till the year 1948. There was an appeal against this order and the lower appellate court held that the plaintiffs were entitled to mesne profits from the date of dispossession till 6-7-43 to, namely the date of purchase at the court auction by Wali Mohammad. The plaintiffs preferred an appeal in this Court and the sole argument on their behalf was that the lower appellate court had no jurisdiction to entertain the appeal against the order of the Munsif dated 18-9-1951 which was not in the character of a preliminary decree. This contention was overruled and on reference to the definition of 'decree' in Section 2(2) of the Code of Civil Procedure and the explanation thereof, their Lordships pointed out that the order initially determining the rights of the parties with regard to the duration for which mesne profits could be claimed foil within the definition of preliminary decree within the meaning of Section 2(2).

In order to ascertain as to whether there was a decree for mesne profits in the suit instituted by the plaintiffs, we have examined the certified copies of the judgment of the trial court and me lower appellate court which are available in the High Court file of this reported ease and it appears beyond doubt that in the judgment as well as in the preliminary decree of the title suit the court allowed mesne profits and directed ascertainment thereof in a subsequent proceeding. In pursuance of that decree, the plaintiffs had undoubtedly a right to apply for the ascertainment of mesne profits. This case is an authority for the proposition that an order determining the rights of the parries with regard to the duration for which mesne profits would be claimed amounted to a decree and was appealable. Besides this, the decree itself having allowed mesne profits, the plaintiffs had a right to apply for the ascertainment thereof. The view which I have taken about the decree passed in the suit for recovery of possession and past mesne profits is not in any way inconsistent with the decision of this reported case.

There is another decision of this Court in Ajodhya Thakur v. Jadunandan Prasad, 1960 BLJR 559. The plaintiff there had instituted, a suit for recovery of possession of certain bharna lands and, in the alternative, for recovery of the bharna money amounting to Rupees 7745/-. He prayed for a decree for mesne profits past and future, and also paid a court-fee for the value of the past mesne profits estimated at Rupees 1625/-. Subsequently the plaintiff filed a petition before the Subordinate Judge that, in the event of his succeeding in the suit, the mesne profits should be ascertained in a future proceeding and there was an order on 7-12-1954 that the claim for mesne profits would be determined later on as prayed for by the plaintiff, if he would succeed. The judgment was finally pronounced on 23-12-1954, but in the judgment and decree the Subordinate Judge did not say that the plaintiff was entitled to mesne profits which would be determined in a subsequent proceeding. Later on, the Subordinate Judge passed an order that there was an inadvertent omission in the judgment and decree and the plaintiff was entitled to recover mesne profits from the defendants by an application under Order 20 Rule 12 of the Civil Procedure Code. The defendants filed an application for revision of this order on the ground that it was without jurisdiction, inasmuch as there was no specific direction in the judgment and decree that the plaintiff was entitled to mesne profits.

Their Lordships referred to the earlier decisions of this Court in Raghu Mahton v. Bulak Mahton, AIR 1953 Pat 289; Second Appeal No. 166 of 1945 dated 16-12-1948 (Pat) and AIR 1958 Pat 448 and accepted the contention as being well-founded. It was further observed that the Privy Council laid down in 8 Ind App 197 (PC) that where a decree was silent on the subject of interest or wasilat, the interest or wasilal could not be added in the course of execution proceedings. The order of the subordinate Judge in that case was set aside and it was held that the plaintiff was not entitled to make an application for ascertainment of mesne profits and when a relief was not allowed in the judgment and decree it must be deemed to have been refused.

8. It would be useful to refer to a few decisions of the Madras High Court on this point. In AIR 1947 Mad 109 the suit was on 13-7-1929 for recovery of possession of a site from defendants 1 to 3, restoration of a street and for the payment of a sum of Rs. 50/-as damages for the year 1928. A decree was passed on 17-8-1931 directing defendants 1 to 3 to remove the enclosure around the site that they had put up and to put the plaintiffs in possession of it. Defendants 1 to 3 were directed to pay Rs. 30/- as damages for the year 1928. There was no claim for mesne profits subsequent to 1928 and the decree awarded none. The decree-holders applied before the Munsif for the ascertainment of future mesne profits under Rule 12 of Order 20 and for a decree for the amount that might be ascertained, One of the judgment-debtors objected to it on the ground that the liability was discharged and the decree neither awarded any future mesne profits nor directed any inquiry in that connection. The Munsif dismissed the application accepting the first contention but rejecting the second. On appeal, the Subordinate Judge held that the petition under Order 20 Rule 12 was maintainable but the liability for future mesne profits could not be described as a 'debt' within the meaning of the Madras Debt Conciliation Act. Chandrasekhara Aiyar J. held that there being no claim for future mesne profits and no decree in respect thereof, the application under Order 20 Rule 12 was not maintainable and even in a case where relief was claimed but the decree was silent, the relief must be deemed to have been refused. This case is on all fours.

In Basavayya v. Guravayya, AIR 1951 Mad 938 (FB), a question arose as to whether a plaintiff having obtained a preliminary decree for partition of joint family properties was entitled to ask for an Inquiry into the profits of the properties realised by the defendants subsequent to the institution of the suit and a final decree for his share of such profits. The defendants objected to the said inquiry on the ground that there was no prayer to the plaint for recovery of such profits and the preliminary decree passed in the partition suit did not direct any inquiry into the same. It was held that that a suit for partition by a member of a Joint Hindu family was substantially a suit for an account of the joint family properties on the date of the suit as well as all the profits received by the manager since that date, so that the profits should also be divided and his proper share given to him. This, in their Lordships' opinion, was the true nature of the proceedings in a suit for partition and a direction for an inquiry into the profit's of the common property received or realised by one of the parties during the pendency of the suit could be made even after the passing of the preliminary decree and there was nothing in Order 20, Rule 18. Civil Procedure Code, interdicting such procedure. The provisions of Order 20 Rule 12 also were considered and it was observed that there was no express or implied prohibition in the Civil Procedure Code against awarding possession and directing an enquiry into future mesne profits by successive adjudication in a pending suit though the normal and ordinary procedure would be to pass a preliminary decree awarding possession and also directing an enquiry into future mesne profits. In any case an order directing an enquiry into future mesne profits passed subsequent to the preliminary decree but during the pendency of the suit could not be said to be without jurisdiction. The question of an enquiry under Order 20 Rule 12 did not arise either directly or indirectly in that case, inasmuch as the suit there was for partition.

In a later decision of the Madras High Court itself in Arunachala Mudali v. Maragathammal, AIR 1955 Mad 527 this Full Bench decision of the Madras High Court has been considered and it has been pointed out that the case before the Full Bench related not to Order 20 Rule 12 but Order 20 Rule 18 dealing with preliminary and final decrees in suits for partition. In this later decision, Rajagopala Ayyangar J. did not regard the Full Bench as having overruled the judgment of Chandrasekhara Aiyar J. in AIR 1947 Mad 109 and he was of the opinion that the said decision of Chandrasekhara Aiyar J. was still good law.

In 1960 BLJR 559 as well, their Lordships referred to AIR 1951 Mad 938 (FB) and pointed out that that case fell within the ambit of Order 20 Rule 18, Civil Procedure Code.

9. In view of these decisions, the principles can be analysed in the following manner:

(a) In case the plaintiff claims past and future mesne profits and such a claim is allowed in the decree, it is open to apply for the ascertainment of past and future mesne profits.

(b) If no claim is made at all for mesne profits, there can be no decree for it and then the question of ascertainment does not arise.

(c) If, however, the plaintiff claims mesne, profits but the claim is refused, then a petition for ascertainment is not maintainable.

(d) Even if the claim is for past mesne profits only, it is open to a court to allow future mesne profits as well and in that case plaintiff can apply for ascertainment of even future mesne profits.

(e) If the claim is for past mesne profits only and the court allows only this claim in the decree and keeps silent about the future mesne profits, the plaintiff cannot apply for ascertainment of future mesne profits as they will be doomed to have been refused.

The present case conies under the last head and the plaintiff-decree holder had no right to apply for ascertainment of future mesne profits.

10. The learned Subordinate judge, while allowing the application for future mesne profits noted that the plaintiff had claimed mesne profits up to the filing of the suit only but took the view that the plaintiff was entitled to mesne profits till the recovery of possession. This was the view of the learned Judge also. But I have already indicated that there was neither a claim for future mesne profits nor it was granted by the decree. The position is that the plaintiff is not entitled to future mesne profits and the application filed by him for the ascertainment thereof was not maintainable.

11. In the result, the order of the trial court and that of the learned single Judge are set aside and the appeal is allowed but without costs as there has been no appearance on behalf of the major respondents. The parties will bear their own costs of First Appeal No. 56 of 1959.

Narasimham, C.J.

12. I agree.

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