Kunhi Kurumban and Another vs Uppukootu Parambil Lakshmi and Others

Srinivasa Aiyangar, J.—In these three connected second appeals the alienees of certain items of property, the subject-matter of the suit,

which the plaintiff sought to recover with mesne profits, are the appellants, but the questions that arise for determination are the same.

The first point that was argued by Mr. Ramachandra Aiyar on behalf of the appellants was that the lower Courts were wrong in their finding on

the question of title raised in the case. It was argued that though both the lower Courts found that the title to the property claimed was not with

Thanu, the husband of Parvathi, but with Parvathi; still such finding should be regarded as vitiated by the misconstruction by the lower Courts of the

document Ex. 8 in O.S. 52 of 1921. That was an instrument by which Thanu Chetty, the husband of Parvathi, gave these properties as security to

the Government. The document is purported to be attested by Parvathi and her daughters and others as prospective heirs of Thanu Chetty and

obviously with the object of estopping them in future from making any claim in respect of the property, having regard to the purpose for which the

instrument was given. But it falls to be observed that in the very schedule in that instrument the property was described as having been purchased

by and being in the possession of Parvathi, the wife. Though no doubt the averments in such documents may be regarded as evidence with regard

to title, no question of misconstruction can be regarded as capable of being raised in the present case. It was one of the facts to be taken into

consideration by the lower Courts in arriving at a conclusion with regard to title and we do not feel persuaded that the conclusion arrived at in

regard to this matter by the lower appellate Court, was vitiated by any such misconstruction. Mr. Ramachandra Aiyar frankly intimated to us that,

so far as some question-was raised on the basis of some custom, he could not possibly press his contentions before us in these second appeals,

having regard to the finding arrived at already in a previous litigation regarding the absence of such a custom as is now alleged.

The last point for determination relates only to the amount of mesne profits awarded to the plaintiff. The lower appellate Court seems to have

treated this question of mesne profits exactly in the same way as a similar question in ordinary suits for possession overlooking the special

circumstances in this case, namely, that by the very decrees passed by the lower appellate Court the defendants who are the parties in possession

have been declared to be entitled to be paid to them by the plaintiffs seeking to eject them the value of improvements. Mr. Ramachandra Aiyar has

drawn our attention to the definition of ""mesne profits"" as appearing in Clause 12, Section 2, Civil P.C. It 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 possesion.

From this definition it is perfectly clear that even though the defendant should be a mere trespasser without any shred of a right, still, if a portion

of the income received or receivable by him is. ascribable to improvements effected by him, then such portion should not be included in the amount

awarded as mesne profits. The principle underlying the definition is perfectly clear. A person who has been deprived of possession of property by

a wrongdoer loses by way of income only that which he could have made with the property as it was when he was so deprived of possession and

it follows on principle therefore that if a portion of the amount received actually or receivable by the defendant was capable of being ascribed to

the improvements effected by him, albeit a wrongdoer, that could not be and should not be taken into consideration in assessing mesne profits. The

case of a defendant to whom according to the judgment of Court a sum is liable to be awarded as for improvements bona fide made by him on

property in the belief that he was entitled to the same is an a fortiori case, and there can be no doubt at all that if the question had been properly

considered by the lower appellate Court it would have refused to grant to the plaintiff any portion of the actual or reasonable income from the

property which was ascribable to the improvements made by the defendants. It is clear that neither of the Courts below considered the matter in

this light at all. it seems to us very likely that it was not thought of at any stage in any of the lower Courts and that was probably the reason why it

was not presented to the lower Courts in that form or light and why the question did not even present itself to the mind of the learned Judge in the

lower appellate Court. If, therefore, having, regard to this definition all that the plaintiff is really entitled in law is only the actual amount of income

received by the defendant less such portion thereof as is properly or reasonably ascribable to the improvements made by him, it is clear that the

Court must be held to have acted wrongly if it came to award him anything more.

Mr. G. Krishnaswami Aiyar, on behalf of the respondents has strongly contended before us that we should not interfere with the award of

mesne profits by the lower appellate Court on two grounds. First he stated that there was no ground of appeal taken by the lower appellate Court

to the effect that even if the plaintiff should be held entitled to any mesne profits the same should be assessed only after deducting from the total

amount of income derivable such portion thereof as was ascribable to the improvements made by the defendants. It is true that there was no such

specific ground taken. But at the same time it may be remembered that there was an objection taken by the defendants to the award of any mesne

profits at all and that on the ground that because the defendants had made improvements on the property the title to the plaintiff who has been

found to be the person entitled cannot be held to have accrued until and unless he pays up the amount that may be awarded for improvements. No

doubt the last contention on the part of the defendants was not accepted and indeed it could not be accepted because the award by way of

compensation for improvements is merely an equitable relief and there is no question at all of any title passing or not passing with reference to such

equitable relief. But this objection to the grant of any mesne profits is really a larger objection and may well be regarded as having included the

lesser or smaller objections. After all we cannot consider it necessary that the parties were under any obligation to raise any such specific grounds.

It is the plaintiff that comes into Court not only with a claim for possession of property, but also for mesne profits. He is bound to establish not only

his right to mesne profits under the circumstances, but also the amount thereof. The amount of mesne profits awardable to the plaintiff has to be

determined according to the law, and if the defendant shows that in such a case the plaintiff can only be entitled to certain mesne profits after

making allowance for the income ascribable, having regard to the improvements made, then it follows that the plaintiff cannot in law be entitled to

any more. If in this case we were satisfied that the amount awarded by the lower appellate Court as mesne profits was arrived at after bearing in

mind this principle of law indicated in the definition of mesne profits in the CPC we should certainly not be interfering with any such award. But it is

clear on a reading of the judgment of the lower appellate Court that the amounts were fixed without any advertence or reference to the definition of

mesne profits "" in the CPC and it is practically certain that the lower appellate Court treated this case merely as an ordinary case of mesne profits

without any reference to the question of the income attributable or ascribable to the improvements made by the defendants.

The other ground on which Mr. G. Krishnaswami Iyear objected was that the lower appellate Court has, having regard to the evidence given,

fixed the amount and the amount fixed is seen to be much less than that admitted by the defendants'' witnesses themselves. We are not now

concerned with the actual amount awarded. What we are concerned with is only the principle applicable. It may be that if an account should be

taken on the principle indicated the amount that has been awarded to the plaintiff may turn out to be the amount actually awardable. But it is clear

that the lower appellate Court has not in fixing the amount borne in mind that from the amount of the income of the property there should be

deducted in the first instance the amount thereof ascribable to the improvements made by the defendants and then alone the balance directed to be

paid as mesne profits. Mr. Krishnaswami Aiyar also drew our attention to the written statement in the case in which no doubt there is no reference

made to any claim in respect of the mesne profits being assessed in that manner. But it is not a matter of pleading at all because both the lower

Courts have found and treated the case to be one in which the defendants were properly entitled to be granted compensation for the improvements

made by them. If so, we must take it that that finding has been acquiesced in and become final because there has been no appeal against it. If,

therefore, these are cases in which an award for compensation to the defendants for improvements made by them is properly given, then the other

position follows logically that in assessing the mesne profits the amount of income ascribable to such improvements should be deducted. We must,

therefore, set aside the decree of the lower appellate Court in respect of the mesne profits because we are satisfied that the same have not been

assessed on proper legal basis. Otherwise the decree and judgment of the lower appellate Courts are affirmed, and the second appeals will be

dismissed.

As regards mesne profits, the cases will be remanded to the Court of first instance for the mesne profits being payable to the plaintiff by each

separate defendant or sets of defendants in possession of the respective properties being determined having regard to the definition of ""mesne

profits"" in the Civil Procedure Code; that is to say, the Court of first instance will determine first the income actually received or with due diligence

might have been received by the defendant or defendants concerned and also find the portion thereof which can properly or reasonably be

ascribed to the improvements found to have been effected by such defendants or defendant deducting the latter amount from the former and fix the

amount payable to the plaintiff. Our attention has also been drawn by the learned vakil for the appellant in S. A. 10 of 1925 to the fact that the total

amount of mesne profits arrived at by the lower appellate Court in O.S. 52 of 1921 was so fixed without reference to the fact that defendants 1

and 2 were in possession of separate items of property. If different parties are in possession of different items of property it follows that they

cannot all of them be made liable for the mesne profits, in respect of all items and that each of them should; be made liable only for the mesne pro-

fits in respect of the particular item in'' his possession.

The orders made by the lower appellate Court with regard to costs relating to mesne profits are also set aside. The Court of first instance will

after arriving at the amount of mesne profits on the principles indicated above, make orders as to the costs incurred by the parties in ascertaining

the mesne profits including therein the costs dealt with by the lower appellate Court. As regards costs of these second appeals we think that the

most proper order to be passed is that the appellant should pay the respondent half the taxed costs.

Though we have indicated above the principle on which the mesne profits-should be assessed by the Court of first instance, the parties now

intimate to us that an enquiry into the same may be avoided and that the parties are likely shortly to agree either to any figures or to the basis on

which the figures may be ascertained in this very Court. For the purpose of enabling the parties to come to such an agreement, if possible, these

appeals will stand adjourned to Monday next and will be posted before us.

Ananthakrishna Aiyar, J.

I agree. [This case coming on for orders again the Court made the following.]

ORDER

The parties are not agreed about the figures. The case will therefore as directed already be remanded to the Court of first instance for the

assessment of mesne profits.