LI Network
Published on: November 19, 2023 at 00:08 IST
The Rajasthan High Court, Jodhpur bench, affirmed that a plea for mesne profit could be dismissed if not explicitly sought in the original suit, and if there was no substantiated evidence indicating wrongful possession or profitability linked to the use of the property by the appellant.
The decision, delivered by Justice Rekha Borana, upheld an interim order granting possession of a property to the appellant until the final resolution of the appeal.
The court emphasized that since the plaintiff did not seek mesne profit in the original suit and no evidence existed demonstrating the appellant’s earning of profit from the property’s use, the claim for mesne profit could not be granted.
The ruling came in response to a stay petition where the appellant sought confirmation of an interim order until the appeal’s final resolution. The respondents, opposing the stay, sought vacation of the interim order and the grant of mesne profit if the stay was confirmed.
The appellant argued that due to an ongoing revenue suit for partition, possession of the property could not be transferred until the determination of the appellant’s rightful share, relying on legal precedent in Ramdas v. Sitabhai (2009).
Additionally, the appellant contended that awarding mesne profit during the pendency of a partition suit, as per the judgment in Thamanna Nukia Shetti v. Velapa Appalaraju & Ors, was inappropriate.
The court considered the agricultural nature of the property, highlighting its lack of profit generation, and the appellant’s assertion that establishing wrongful possession required the execution of a conveyance post a specific performance decree, as held in judgments like Purushothaman vs. Thulasi [1994].
In response, the respondent pointed out the appellant’s failure to file a counter to the reply on the stay petition, arguing that the facts stated by the respondent remained uncontested.
The respondent argued that after a decree in their favor, the appellant, as a judgment-debtor, was obliged to pay mesne profits for the use of the land.
After careful consideration, the court noted the executed ‘agreement to sell’ and the absence of possession being transferred to the plaintiff.
The court asserted that the transfer of possession is contingent upon the property’s partition, and thus, vacating the interim order was deemed inappropriate.
The plea for mesne profit was rejected by the court, emphasizing that such relief was not sought in the original suit and that there was a lack of evidence demonstrating wrongful possession or profitability associated with the property’s use.
The court confirmed the interim order, imposing restrictions on the appellant from alienating the property during the intervening period. The appeal is scheduled for a hearing on April 4, 2024.
Case Title: Hariram v. Harish Kumar