Himachal Pradesh High Court
Banwari Lal And Another vs . Vipan Lal & Others. on 15 September, 2023
Banwari Lal and another vs. Vipan Lal & others.
.
RSA No.5 of 2021
Order reserved on: 31.08.2023
15.09.2023 Present: Mr. Deepak Bhasin, Senior Advocate, with
Mr.Sambhav Bhasin, Advocate for the
of
appellants/defendants.
Mr. Romesh Verma, Senior Advocate, with Mr. Sumit Sharma, Advocate, for the applicant/respondents. rt CMP No.11255 of 2023 The applicant/plaintiff has filed the present application for seeking a direction to the appellants/defendants to deposit use and occupation charges @ ₹ 25,000/- per month w.e.f. 11.03.2013 till further orders and listing the appeal for final hearing at the earliest.
2. It has been asserted that the applicants-plaintiffs filed a Civil Suit in the Court of learned Senior Civil Judge, Court No.-I, Rohru, for the grant of injunction. The suit was decreed by the learned Trial Court on 03.08.2018. A decree of permanent prohibitory injunction was passed. A mandatory injunction directing the defendants to remove/dismantle the construction raised by them was also passed. The defendants filed an appeal before learned District Judge, Forest, Shimla, which was dismissed. The area involved in the suit is commercial and the appellants/defendants have raised construction of the structures.
In case, the structure is ordered to be demolished, the ::: Downloaded on - 15/09/2023 20:36:47 :::CIS applicants/plaintiffs will be able to raise construction of their .
shop, as per their requirement. The appellants/defednatsare letting out the shops constructed by them and are earning ₹ 15,000/- to ₹ 20,000/- per month. No use and occupation charges were fixed by the learned Trial Court, learned First Appellate of Court or this Court. Both the learned Courts below held that the appellants/defendants are in illegal possession of the commercial rt area. Hence, the applicants/plaintiffs are entitled to use and occupation charges from the respondents/defendants.
3. No reply was filed.
4. I have heard Mr Romesh Verma, learned Senior Counsel assisted by Mr Sumit Sharma, learned counsel for the applicants/plaintiffs and Mr Deepak Bhasin, learned Senior counsel assisted by Sh.Sambhav Bhasin, learned counsel for the respondents/defendants.
5. Mr Romesh Verma, learned Senior Counsel for the applicants/plaintiffs submitted that the learned Trial Court had ordered the demolition of the structure raised by the defendants during the pendency of the suit; therefore, the defendants are in illegal possession of the suit land. They have obtained an order from the Court to protect their possession; therefore, they are liable to pay mesne profit to the plaintiffs. He prayed that the present application be allowed and appellants/defendants be directed to pay the mesne profits to the plaintiffs.
::: Downloaded on - 15/09/2023 20:36:47 :::CIS6. Mr. Deepak Bhasin, learned senior counsel for the .
defendants submitted that no mesne profit can be awarded between the co-owners; therefore, he prayed that the present application be dismissed.
7. I have given considerable thought to the rival of submissions at the bar and gone through the records carefully.
8. It is undisputed that the parties are co-owners of the rt suit land. The learned Trial Court had granted relief of mandatory injunction on the ground that the defendants had no right to raise construction and cause the ouster of the other co-owners. This was upheld by the learned First Appellate Court.
9. Hon'ble Madras High Court explained in Babburu Basavayya v. Babburu Guravayya, 1951 SCC OnLine Mad 49= AIR 1951Mad. 938, that the mesne profits can be awarded against a person in wrongful possession. It was observed:
"3. It is necessary at the outset to distinguish between three different types of cases in which a question of profits or mesne profits might arise: (1) Suits for ejectment or recovery of possession of immoveable property from a person in possession without title, together with a claim for past or past & future mesne profits. (2) Suits for partition by one or more tenants-in-common against others with a claim for account of past or past & future profits. (3) Suits for partition by a member of a joint Hindu family with a claim for an account from the manager. In the first case, the possession of the defendants not being lawful, the plaintiff is entitled to recover "mesne profits" as defined in Section 2, Clause (12), Civ. P. C., such profits being really in the nature of damages. In the second case, the possession & receipt of profits by the defandant, not being wrongful the plaintiff's remedy is to have an account of such profits making all just allowances in ::: Downloaded on - 15/09/2023 20:36:47 :::CIS favour of the collecting tenant in common. In the third case, .
the plaintiff must take the joint family property as it exists at the date of the demand for partition and is not entitled to open up past accounts or claim relief on the grounds of past inequality of enjoyment of the profit, except where the manager has been guilty of fraudulent conduct or misappropriation. The plaintiff would, however, be in the position of a tenant-in-common from the date of severance in status & his rights would have to be worked out on that of basis.
4. Order 20, Rule 12, Civil P. C. deals with the first class of suit above referred to, while Order 20, Rule 18, deals with the rt second & third categories. In view, however, of the considerable reliance placed on Order 20, Rule 12, Civil P. C. in Ghulusum Bivi v. Ahmadsa Rowther, 42 Mad. 296 In dealing with the right of a plaintiff to profits accruing during the pendency of a partition suit, it is desirable to consider the scope of this provision. A claim for possession & a claim for past mesne profits have been held to be based on different causes of action, at any rate, in the decisions of this Court. Order 2, Rule 4, Civil P. C. however permits their joinder in one suit. There is a material difference between a claim for past & a claim for future mesne profits. Order 7, Rule 2, Civil P. C. & Section 7 Sub-section (1), Court Fees Act, require that the amount of past mesne profits claimed should be approximately stated in the plaint & ad valorem court fee should be paid on such amount. These provisions can have no application to future profits, for it is not possible for the plaintiff to predicate how long the litigation is going to last or give even an approximate statement of the amount of mesne profits that might become payable at the end. The cause of action for future mesne profits is the plaintiffs being kept out of possession during the suit & arising subsequent to the suit. In empowering Courts to award future mesne profits Order 20, Rule 12, Civ. P. C. makes an exception to the general rule that a plaintiff can only sue on such cause of action as has arisen on the date of instituting his suit. The object is to avoid the multiplicity of litigation that would result if persons, unlawfully kept out of possession of their lands were obliged to file suits every three years for mesne profits accruing after the institution of a suit in ejectment & during its pendency in the original & appellate Courts. But the plaintiff could not claim future mesne profits as a matter of right, the cause of action for such profits not having arisen to him at the date of the suit. Hence it is that the power of the Court to award mesne profits subsequent to the suit has been held to be ::: Downloaded on - 15/09/2023 20:36:47 :::CIS discretionary & 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. Doraiswami v. Subramania, 41 Mad. 188. In re Ekanathalingaswami, I.L.R. (1937) Mad. 284. Section 11, Court-fees Act, (as amended in Madras) requires payment of court fees on future mesne profits only if the plaintiff desires to execute the decree awarding him such profits. The Judicial Committee interpreting the provisions of Section 196, Civ. P. C. of 1859 & of this Court, construing the corresponding provisions of Order 20, Rule 12 held that whether a plaint contained or not a claim to future profits the Court had the power to grant them under these special provisions, Fakharuddin Mohamed Ashan v.
rt Official Trustee of Bengal, 8 Cal. 178 &Kemgamswami v. Subbamma, 53 Mad. 838. When the Legislature has expressly empowered the Court to grant relief for future mesne profits, that is to say, in respect of a cause of action arising subsequent to the suit, there is no reason to circumscribe this power by importing a qualification that there must have been a specific prayer in the plaint for the recovery of such unascertainable & unpredictable profits. Future mesne profits could, we think, well be awarded as part of the general relief to which a plaintiff is entitled."
10. Odisha High Court held in Udekar v. Chandra Sekhar Sahu, 1960 SCC OnLine Ori 22: AIR 1961 Ori 111 that mesne profit is restricted to those profits derived by a person in wrongful possession of the property belonging to another. A tenant in common in possession cannot be said to be in wrongful possession. He may be liable to render accounts related to his share but he is not liable to pay the mesne profits. It was observed:
"7. It is now well settled that the expression "mesne profits"
as defined in Section 2(12) of the CPC is restricted only to those profits which are derived by a person in wrongful possession of property belonging to another. It has absolutely no application to profits accountable by a person not, in wrongful possession of the property such as by a co-sharer, before partition.
::: Downloaded on - 15/09/2023 20:36:47 :::CIS8. This distinction was brought out in AIR 1935 Pat 80 and was .
also exhaustively dealt with in a Full Bench decision of the Madras High Court reported in Basavayya v. Guravayya, AIR 1951 Mad 938 which is the leading decision on the subject. That decision has been followed in Satyanarayana Murthi v. Bhavana, (S) AIR 1957 AndhPra 766; Krishnamma v. Lachuma Naidu, AIR 1958 AndhPra 520 and Ram Narain Prasad v. Ramji Prasad, AIR 1956 Pat 244.
of xxxxxxx
10. The tenant in common who is in possession cannot be said to be in wrongful possession though he may be liable to render accounts relating to his share. Such a claim for rt accounts is not strictly speaking a claim for mesne profits as defined in the Code of Civil Procedure. The provisions of Order 20 Rule 12 of the CPC or Order 2, Rule 4 of the CPC, have absolutely no application to such claim for accounts. xxxxxxxxxx
21. The Bombay decisions reported in AIR 1935 Bom 806 and AIR 1938 Bom 231 (FB) on which Mr. Ray relied, do not appear to have noticed the essential distinction between a suit for mesne profits against a trespasser and a suit for accounting of profits by one co-sharer against other co-sharers, on the other. Moreover, in AIR 1938 Bom 231 (FB) the learned Chief Justice while referring to the opposite view observed:
"If the matter were entirely res integra there would be, in my opinion, a good deal to be said in favour of the plaintiff's contention but the matter is by no means res integra".
With great respect, therefore, I would prefer the Patna view given in AIR 1935 Pat 80, where the distinction between the aforesaid two classes of suits was clearly brought out at p.
81."
11. Patna High Court also held in Nand Kishore Prasad Singh v. Parmeshwar Prasad Singh, 1934 SCC OnLine Pat 250: AIR 1935 Pat 80 that a co-sharer is entitled to mesne profits from the date when the notice of separation is given and not before that. It was observed:
"3. A preliminary observation may be made as to the meaning of the term "mesne profits." It may be used to ::: Downloaded on - 15/09/2023 20:36:47 :::CIS denote compensation (that is to say damages) recoverable .
from a person who has been in wrongful possession, and in such circumstances means that which the plaintiff has lost by reason of the tortious act of the defendant, and is not the profit actually made by the defendant but that which the plaintiff might reasonably be expected to have made had his possession not been wrongfully disturbed. On the other hand, it may be used in the sense of the profits actually received by the defendant which he is bound to hand over to of the plaintiff towards whom he owes some fiduciary duty. In English Law, the distinction between these two significations is preserved in the terms "damages" on the one hand and "account of profits" on the other. In India, the rt distinction is often forgotten.
4. Now, a co-parcener who sues for partition is entitled only to a division of the property from the date when the notice of separation was given. Until the actual determination of his share and the separation of a corresponding takhta, the Karta or other co-parceners in possession, being rightly in possession, are not liable to him for mesne profits in the sense of damages. The purchaser of a coparcener's interest cannot be entitled to more than what his vendor had, and he no more than his vendor can claim mesne profits in this latter sense. The mesne profits, (i.e., damages) obtained by the third brother against the plaintiffs were recovered against trespassers who were held to have been in wrongful possession. They are not (as the Subordinate Judge seems to have supposed) relevant to the question as to what the plaintiffs are now entitled to recover in the present case."
12. This position was reiterated in Shambhu Dayal Khetan v.
Motilal Murarka, 1979 SCC OnLine Pat 105: (1980) 28 BLJR 57: AIR 1980 Pat 106 and it was held that there can be no mesne profits amongst the co-owners. Even, if a co-sharer is in possession despite the orders of the Court, his possession is not wrongful and he cannot be held liable to pay the mesne profits. It was observed:
"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 ::: Downloaded on - 15/09/2023 20:36:47 :::CIS 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 of Procedure, which is as follows:--
"Mesne profits" of property means those profits rt 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."
6. 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 has 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 the 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."
13. Therefore, the defendants cannot be held to be in wrongful possession, even though, their construction has been ordered to be demolished by the learned Courts below and they cannot be directed to pay the mesne profit.
::: Downloaded on - 15/09/2023 20:36:47 :::CIS14. In all fairness, Mr. Romesh Verma learned Senior .
Counsel, has relied upon the judgment of this Court in Tej Narain versus Akash Gupta CMP(M) No.9940 of 2022 decided on 25.08.2023.
However, in the cited case, the respondent was found to be in wrongful possession and that is why he was directed to pay the of mesne profits. Since, in the present case, there is no wrongful possession; hence, no such direction can be issued.
rt
15. Consequently, the present application fails and the same is dismissed.
RSA No.5 of 2021Keeping in view the fact that the co-sharer is in possession of the property regarding which an order of demolition has been passed, the matter is ordered to be expedited.
(Rakesh Kainthla) Judge 15th , September, 2023 (pathania) ::: Downloaded on - 15/09/2023 20:36:47 :::CIS