On the case of the petitioners themselves, they were co-sharers along with opposite party Nos. 1 to 3. The grievance of the petitioners is that opposite party Nos. 1 to 3 were in possession of the six rooms in spite of the order dated 10-10-1969 passed by the court below and on that basis as stated above, they claim mesne profits on the ground that they were deprived of the enjoyment of those six rooms to which they were entitled to in pursuance of the aforesaid order. But that alone, in our opinion, is not sufficient to entitle the petitioners to get mesne profits from opposite party Nos. 1 to 3. "Mesne profits" has been defined in sub-section (12' of Section 2 of the Code of Civil Procedure, which is as follows:--
"Mesne profits" 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."
A bare reading of this sub-section shows that a person in wrongful possession alone is liable to pay mesne profit. Was the possession of opposite party Nos. 1 to 3 wrongful ? The answer to that is certainly in the negative because they were, according to the case of the petitioners themselves, co-sharers of the six rooms. It is settled that possession of a co-sharer can never be wrongful as he had right and interest in every inch of the undivided property. It is not said by the petitioner that the property has been divided by metes and bounds and these six rooms have been allotted to his share. All that is said is that the petitioners are entitled to exclusive possession of these six rooms on account of the orders passed on 10-10-1969. But this order cannot be construed as to deprive opposite party Nos. 1 to 3 from enjoyment of the undivided property. For these reasons, in our view, the petitioners cannot claim mesne profits against opposite party Nos. 1 to 3. The application therefore, fails and is dismissed; but in the circumstances there will be no order as to costs.
IN THE HIGH COURT OF PATNA
Civil Revn. No. 1039 of 1977
Decided On: 16.08.1979
Shambhu Dayal Khetan and Ors. Vs. Motilal Murarka and Ors.
Hon'ble Judges/Coram:
S. Ali Ahmad and Maheshwar Pradesh Verma, JJ.
Citation: AIR 1980 Patna 106, MANU/BH/0026/1980.
1. This civil revision application is directed against an order dated 3rd June, 1977, by which the court below dismissed the application filed by the petitioners for ascertainment of mesne profits against the defendant-first party to the mortgage suit and one Arbind Nath Mishra, who is opposite party No. 6 to this application.
2. The application for mesne profits filed in the court below on 2-1-1973 was an outcome of a litigation initiated on 18-8-1953. Events are many but they all need not be mentioned for the disposal of this application as they are irrelevant for our purpose. All that need be said is that Title Mortgage Suit No. 65 of 1953 was filed by the United Bank of India Ltd. against opposite party Nos. 1 to 3. A receiver was appointed in the year 1957, who took possession of the suit property. The petitioners claiming to be the purchasers of 4 annas 8 pies share claimed to be in possession of 17 rooms in the suit property known as Moti Mahal. Possession of all these rooms was taken by the receiver. Later on, by an order dated 10-10-1969, the court, directed the receiver to hand-over possession of six rooms to the petitioners. This was not to the liking of opposite party Nos. 1 to 3 and 6. All possible objections were raised and the delivery of possession with respect to these six rooms was delayed till 13-1-1974, that is to say, the petitioner could take possession of those six rooms after about more than four years of the order dated 10-10-1969. Through this application, therefore, the petitioners claimed that they should be paid mesne profits at the rate of Rs. 300/- per month because of the loss they suffered on account of non-delivery of possession for the period above-mentioned.
3. The application was contested by the opposite party. The court below rejected the application on the ground that the petitioners were not parties to the mortgage suit and as such neither Section 144 of the Code of Civil Procedure nor Section 151 of the Code of Civil Procedure applied to the facts of this case. The court below also seems to have held the application to be not maintainable because opposite party No. 6 was in possession of four out of the 6 rooms and he too was not a party to the suit. Thereafter, this revision application has been filed.
4. Mr. Bishwanath Agrawal, learned counsel for the petitioners, contended that the court below was wrong in dismissing the application on the ground that the application was not maintainable as the petitioners were not parties to the suit. According to him, the principles of Section 144 of the Code of Civil Procedure were applicable and the court below had ample jurisdiction to pass orders for restitution under Section 151 of the Code of Civil Procedure. To support that learned counsel referred to certain decisions. Mr. Rajgarhia, on the other hand, appearing for opposite party Nos. 1 to 3 contended that the court below rightly rejected the application. Mr. Sen appearing for the Bank contended that no order which adversely affects the Bank should be passed.
5. The points raised by learned counsel for the parties were certainly interesting but unfortunately they do not arise for consideration in this case. On the case of the petitioners themselves, they were co-sharers along with opposite party Nos. 1 to 3. The grievance of the petitioners is that opposite party Nos. 1 to 3 were in possession of the six rooms in spite of the order dated 10-10-1969 passed by the court below and on that basis as stated above, they claim mesne profits on the ground that they were deprived of the enjoyment of those six rooms to which they were entitled to in pursuance of the aforesaid order. But that alone, in our opinion, is not sufficient to entitle the petitioners to get mesne profits from opposite party Nos. 1 to 3. "Mesne profits" has been defined in sub-section (12' of Section 2 of the Code of Civil Procedure, which is as follows:--
"Mesne profits" 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."
A bare reading of this sub-section shows that a person in wrongful possession alone is liable to pay mesne profit. Was the possession of opposite party Nos. 1 to 3 wrongful ? The answer to that is certainly in the negative because they were, according to the case of the petitioners themselves, co-sharers of the six rooms. It is settled that possession of a co-sharer can never be wrongful as he had right and interest in every inch of the undivided property. It is not said by the petitioner that the property has been divided by metes and bounds and these six rooms have been allotted to his share. All that is said is that the petitioners are entitled to exclusive possession of these six rooms on account of the orders passed on 10-10-1969. But this order cannot be construed as to deprive opposite party Nos. 1 to 3 from enjoyment of the undivided property. For these reasons, in our view, the petitioners cannot claim mesne profits against opposite party Nos. 1 to 3. The application therefore, fails and is dismissed; but in the circumstances there will be no order as to costs.
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