THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI RAMESH RANGANATHAN
LETTERS PATENT APPEAL No.77 OF 1997
27-07-2011
G.Subrahman
yam (died) p
er LR
s
yam (died) per LRs G.Leela and others
Counsel for Petitioners:Sri T.S.Anand
Counsel for Respondents: Dr P.B.Vijay Kumar
:JUDGMENT: (Per Hon'ble Sri Justice V.V.S.Rao)
This plaintiff's Letters Patent Appeal, under clause 15 of the Letters
Patent, is against the Judgment of the learned Single Judge dated 17.04.1995
dismissing the cross-objections in A.S.No.2582 of 1989. Be it noted that, during
the pendency of this appeal, the sole appellant died, and his legal
representatives have been brought on record as appellants 2 and 3. For the sake
of convenience, the parties are referred to herein as they are arrayed in the
original suit being O.S.No.211 of 1982 on the file of the Court of the
Additional Subordinate Judge, Tirupati.
The plaintiff instituted the suit for declaration of his right to perform
Tharigonda Vengamamba Mirasi Service in the temple of Lord Venkateswara at
Tirumala, for permanent injunction, and for recovery of items 1, 2 and 3 of
Plaint Schedule properties. These properties were originally owned by Tharigonda
Vengamamba, a great devotee of Lord Venkateswara. She was rendering midnight
Harathi known as 'Mutyala Harathi Service', and was celebrating Narasimha
Jayanthi for ten days annually. The service came to be recognized as mirasi
service. All the successors of Tharigonda Vengamamba acquired the right to
perform the said service. In 1930 or so Garmitta Gammanna performed the mirasi
service. Chidambarappa was his brother. Gammanna executed a Will on 02.04.1931
bequeathing/authorizing the right to perform the mirasi service to Gandepalli
Suryanarayana with a condition that the right and property would revert back to
the heirs of Chidambarappa. After Suryanarayana, his son Kuppaiah Sarma
performed the service. He was succeeded by his son G.V.L.N.Murthy, the husband
of the first defendant. Murthy died issueless on 27.12.1981. The plaintiff,
being the son of Chidambarappa, staked his claim for the mirasi right, as well
as the properties, based on Ex.B.1 Will. He issued legal notice on 16.09.1961
claiming right as successor-in-interest of Vengamamba family being the nephew of
Gammanna, and then filed the suit.
The first defendant opposed the suit contending that, after the death of
her husband Murthy, she had adopted the second defendant under registered
adoption dated 16.06.1982; that the fourth respondent had recognized him as
mirasidar; that, as he was a minor, mirasi services were being discharged
through the third defendant; and that, as per Ex.B.1, it is the successors of
Suryanarayana alone who had the right to perform the service. The fourth
defendant, namely, Tirumala Tirupati Devasthanams (TTD) opposed the suit
contending that the first defendant was recognized for rendering service; that
she was also paid compensation; and that all hereditary mirasi rights stood
abolished after the enactment of Andhra Pradesh Charities and Hindu Religious
Institutions and Endowments Act, 1987 (hereafter called, the Endowments Act).
On considering the evidence - oral evidence of P.W.1 to P.W.3, and D.W.1
and D.W.2 as well as documentary evidence Exs.A.1 to A.17 and Exs.B.1 to B.17 -
the trial Court granted declaration of the right of the plaintiff to Tharigonda
Vengamamba Mirasi Service at Lord Sri Venkateswara Temple at Tirumala, and also
granted permanent injunction restraining the defendants from performing the said
service. In so far as the relief of recovery of possession is concerned, having
regard to the evidence that out of Acs.0.58 cents of land in item No.1,
Acs.0.451/2 cents and the backyard portion of item No.3 (house) were acquired by
the fourth defendant, the relief of recovery of possession was granted only in
respect of item No.2 while denying the same in respect of portions of item Nos.1
and 3, which were acquired by fourth defendant.
The defendants 1 to 3 filed appeal. The plaintiff filed cross objections
claiming the relief of recovery of possession of item Nos.1 and 3, which are
said to have been acquired by the fourth defendant. The learned single Judge
construing Ex.B.1, executed by Gammanna, as well as other evidence came to the
conclusion that what was bequeathed thereunder was the right to mirasi service
as a proxy on behalf of Gammanna and his successors; that, in lieu of rendering
such service, the right to enjoy properties was given as consideration; and
that, if the legatee under the Will failed to have male issues, the properties
would revert back to the family of the plaintiff. The learned single Judge also
held that the subsequent adoption created by the first defendant would not
affect the rights of the plaintiff under Ex.B.1. The judgment of the trial Court
granting the declaration was thus confirmed. But, after noticing the fact that
portions of item Nos.1 and 3 of plaint 'A' schedule were acquired by the fourth
defendant in respect of which compensation was already paid to the first
defendant, the learned single Judge did not find fault with the trial Court
Judgment in denying the relief of recovery of possession for these two items to
the plaintiff. The cross-objections were accordingly dismissed.
The counsel for the appellant would submit that, under Ex.B.1, the
plaintiff acquired the right to perform mirasi service; the same also provided
for bequeathing the properties attached to Tharigonda Vengamamba Mutt; hence,
denial of relief of possession for the items, which were acquired by the fourth
defendant, was erroneous; even if, during the pendency of the suit, portions of
item Nos.1 and 3 were acquired it is only the plaintiff who is legitimately
entitled to claim compensation; the fourth defendant paid compensation to the
first defendant illegally and, therefore, the plaintiff is entitled to the
decree directing the fourth defendant to pay the compensation to the plaintiff
or a direction to the first defendant to pay the compensation which she received
illegally. He would contend that, taking into consideration Order VII Rule 7 and
Order XLI Rule 33 of the Code of Civil Procedure, 1908 (CPC), the High Court can
mould the relief to do complete justice, even if there is no prayer for the
alternative relief of recovery of possession. He would rely on M.Laxmi and Co.,
v A.R.Deshpande1 and Rameshwar v Jot Ram2.
Learned counsel for respondents 1 to 3 would submit that, under Ex.B.1,
Gandepalli Suryanarayana and his successors- in-interest were conferred the
right to perform mirasi service as well as enjoy all the properties; therefore,
if the compensation had been paid to them by the fourth defendant, the plaintiff
would not have any claim to the same; during the pendency of the suit before the
trial Court, or in the appeal before the learned Single Judge, the plaintiff did
not seek the alternative relief of payment of compensation in lieu of possession
of a portion of item Nos.1 and 3 and therefore, at the stage of Letters Patent
Appeal, the plaintiff cannot be permitted to raise such a plea. According to the
learned counsel, failure to amend the plaint asking for payment of compensation
in lieu of possession would disentitle them from seeking such a relief; and the
conduct of the plaintiff would amount to acquiescence and, therefore, no
interference is called for.
The background facts, and the rival submissions, would give rise to two inter-
related points for consideration, namely, whether the appellants/plaintiffs are
entitled to the relief of compensation in lieu of possession of item No.1 and
the backyard portion of item No.3 of plaint 'A' schedule; and whether the
plaintiff can seek a direction to the first respondent to reimburse the
compensation amount, she had received from the fourth defendant, to the
plaintiff.
Before taking up the main issue for consideration, we will consider two
submissions made on behalf of respondents 1 to 3. The submission that, under
Ex.B.1, the respondents would be entitled to claim compensation or enjoy the
income from the plaint schedule properties cannot be permitted to be agitated in
this Letter Patent Appeal. There is no denial that, against the Judgment of the
learned single Judge, the respondents had filed a Special Leave Petition under
Article 136 of Constitution of India before the Supreme Court, and the same was
already dismissed. The issue raised by the respondents, therefore, stands
concluded and cannot be permitted to be re-opened. The other plea of
acquiescence barring the appellant from claiming the compensation paid by the
TTD is also not permissible. The appellants never raised such a plea nor cross-
examined P.W.1 on this aspect. Further, acquiescence disentitling a person to
seek redressal for the legal injury is a question of fact. No factual foundation
was laid in the pleadings, in the absence of which it would not be possible for
the Court, at the stage of Letters Patent Appeal, to adjudicate upon it.
An extent of 451/2 cents out of 55 cents forming part of item No.1, which
is a tomb of Tharigonda Vengamamba (Samadhi Topu), was acquired by the fourth
defendant prior to the filing of the suit, as evidenced by Ex.B.12 and Ex.B.13.
In fact, D.W.1 testified that, even during the life-time of her father-in-law
Suryanarayana, an extent of 121/2 cents was only in their possession, and the
remaining land was acquired by the TTD. The counsel for appellant/plaintiff does
not seriously press the point in so far as item No.1 is concerned. There is no
dispute whatsoever that subsequent to the death of the husband of the first
defendant, TTD acquired the backyard of house item No.3, and paid compensation.
This acquisition was during the pendency of the suit. As the land was not
available for delivery of possession the relief, to the extent of backyard
portion which was taken over by the fourth defendant, was denied.
The relevant principles, touching upon the question posed by us supra, can
be conveniently considered under three distinct heads, namely, (i) the power of
the Court under Order VII Rule 7 of the CPC to grant the relief not asked for;
(ii) the power of the Court under Order XX Rule 12 of the CPC to pass a decree
for mesne profits; and (iii) under Order XLI Rule 33, and the impact of
subsequent events.
(i) Grant of relief not specifically stated
Order VII Rule 1, quoted below, provides that, inter alia, the plaint
shall contain the relief which the plaintiff claims, and where the plaintiff has
allowed a set off or relinquished a portion of the claim, the amounts so allowed
or relinquished.
7. Relief to be specifically stated.- Every plaint shall state
specifically the relief which the plaintiff claims either simply or in the
alternative, and it shall not be necessary to ask for general or other relief
which may always be given as the Court may think just to the same extent as if
it had been asked for. And the same rule shall apply to any relief claimed by
the defendant in his written statement.
The rule is that every plaint shall state specifically the relief which
the plaintiff claims either simply or in the alternative. But, it shall not be
necessary to ask for general or other reliefs which can always be given as the
Court may think just to the same extent as if it had been asked for. Though the
Court cannot ordinarily grant any relief to the plaintiff against the defendant
which is not asked for, if a larger or a wider relief is claimed, the lesser
relief can always be granted. If the plaintiff establishes facts which entitled
him to the relief not claimed, ordinarily the relief cannot be denied.
In Bhagwati Prasad v Chandramaul3, it was held.
If a plea is not specifically made and yet it is covered by an issue by
implication, and the parties knew that the said plea was involved in the trial,
then the mere fact that the plea was not expressly taken in the pleadings would
not necessarily disentitle a party from relying upon it if it is satisfactorily
proved by evidence. The general rule no doubt is that the relief should be
founded on pleadings made by the parties. But where the substantial matters
relating to the title of both parties to the suit are touched, though indirectly
or even obscurely, in the issues, and evidence has been led about them, then the
argument that a particular matter was not expressly taken in the pleadings would
be purely formal and technical and cannot succeed in every case. What the Court
has to consider in dealing with such an objection is: did the parties know that
the matter in question was involved in the trial, and did they lead evidence
about it? If it appears that the parties did not know that the matter was in
issue at the trial and one of them has had no opportunity to lead evidence in
respect of it, that undoubtedly would be a different matter.
The Supreme Court also held that, if the Court reaches conclusion as to the
right of the plaintiff to the main relief, it would be a matter of law as to
whether he should also be granted the incidental or lesser relief if, by reason
of subsequent events, the grant of relief, as originally prayed, becomes
impossible.
The emphasis in Order VII Rule 7 is "other relief which may always be given as
the Court may think just". Even if a relief is not asked for, and if such lesser
relief comes within the general relief claimed, the relief cannot be denied.
Appendix 'A' to the CPC contains various forms of pleadings. It is a general
practice that most of the plaints have a prayer in general terms 'such other
relief as the Court may deem fit and proper' or 'such further or other relief as
the nature or case require'. Such general relief would be sufficient to empower
the Court to grant a lesser relief which is incidental to the general relief.
For instance, in a suit for possession and mesne profits, the Court can grant
future profits as a general relief, even if not asked for expressly or
specifically (Gopalakrishna Pillai v Meenakshi Ayal4) and, in a suit for
recovery of money, the Court can award future interest on the sum determined to
be due even if it is not claimed by the plaintiff.
(ii) Scope of Order XX Rule 12
Order XX of CPC though not exhaustive on the subject deals with delivery
of the Judgment, and the drawing of a decree by the Court after disposal of the
Suit. In addition to general principles, rules regarding various types of
decrees in different suits are also taken care of. Order XX Rule 12 deals with
decree for possession and mesne profits and reads as under.
Order XX Rule 12
12. Decree for possession and mesne profits.-
(1) Where a suit is for the recovery of possession of immovable property and for
rent or mesne profits, the Court may pass a decree:
(a) for the possession of the property;
(b) for the rents which have accrued on the property during the period
prior to the institution of the suit or directing an inquiry as to such rent;
(ba) for the mesne profits or directing an inquiry as to such mesne
profits;
(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,
(ii) the relinquishment of possession by the judgment-debtor with notice
to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree, whichever
even first occurs.
(2) 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.
In a suit for decree of possession, the Court is required to pass a decree for
possession of the property, and for rent or mesne profits. Rent and mesne profit
are different concepts. Though mesne profits may include the rent, it is not
vice versa. Be that as it is, in a suit for decree of possession, the Court can
pass a decree for possession, for rents accrued during the period prior to
institution of the suit, and/or mesne profits, either by ordering enquiry or suo
motu. Reading Order XX Rule 12 and Order VII Rules 1 and 7 together, there
cannot be any doubt that, even in a suit for recovery of possession, the
plaintiff has to seek relief specifically for rent or mesne profits in addition
to the decree of possession.
Whether the Court can grant mesne profits for the period after institution of
the suit or post decree till the decree is obeyed even if such relief is not
asked for? This question is no more res integra. Courts have held that the Court
can pass a decree for mesne profits even if such a relief is not asked for. In
Gopalakrishna Pillai a Division Bench of the Supreme Court considered this
aspect and held that, even in the absence of a specific prayer, the Court has
jurisdiction to pass a decree for mesne profits. It is apt to quote the
following.
Order 20 Rule 12 enables the Court to pass a decree for both past and future
mesne profits but there are important distinctions in the procedure for the
enforcement of the two claims. With regard to past mesne profits, a plaintiff
has an existing cause of action on the date of the institution of the suit. In
view of Order 7 Rules 1 and 2 and Order 7 Rule 7 of the Code of Civil Procedure
and Section 7(1) of the Court Fees Act, the plaintiff must plead this cause of
action, specifically claim a decree for the past mesne profits, value the claim
approximately and pay court-fees thereon. With regard to future mesne profits,
the plaintiff has no cause of action on the date of the institution of the suit,
and it is not possible for him to plead this cause of action or to value it or
to pay court-fees thereon at the time of the institution of the suit. Moreover,
he can obtain relief in respect of this future cause of action only in a suit to
which the provisions of Order 20 Rule 12 apply. But in a suit to which the
provisions of Order 20 Rule 12 apply, the Court has a discretionary power to
pass a decree directing an enquiry into the future mesne profits, and the Court
may grant this general relief, though it is not specifically asked for in the
plaint.
(iii) Order XLI Rule 33 and Subsequent events
There is no gainsaying that a trial, in a Civil Court, proceeds with
reference to the relevant issues necessary for resolving the dispute. The
contentious issues are identified with reference to specific pleadings which
have to comply with the essential Rules in Orders VI, VII and VIII, and various
forms in Appendix 'A', as the case may be. The pendency of proceedings in the
Civil Court more often than not results in either altering the cause of action
for the suit or introducing drastic changes in the respective positions of the
parties to the suit with regard to the rights and obligations. The legal injury
complained by the plaintiff might get aggravated warranting additional relief,
or the legal injury might get lessened, warranting moulding the relief or the
legal injury might get aggravated necessitating multiple reliefs. In all such
cases, the Civil Court as an adjudicatory forum of law, justice and equity is
not precluded from giving effect to events that have changed the historical
facts forming the background of the case. There could be a situation where the
law governing the parties might have undergone drastic changes altering rights
and obligations. In such a case, the Court is not barred from giving effect to
such change in law.
Order XLI Rule 33 was inserted in the CPC by the CPC (Amendment) Act 1974
with effect from 01.02.1977. The reason for introducing the same, as visualized
by the objects and reasons, is that the appellate Court should have the fullest
power to do complete justice between the parties. The rule postulates that the
appellate Court has the power to pass a decree, and make an order which ought to
have been passed or made as the case may require, even if the
respondents/parties have not filed any appeal or objection. The rule is couched
in such a wide language that the appellate Court can always consider the
subsequent events as to facts and law and grant relief. What was a common law
practice has now become a codified provision as in Order XLI Rule 33. Such a
course of action is necessary to shorten litigation, and attain ends of justice.
The legal position is indeed not seriously disputed by the counsel.
In Laxmi & Co., the Supreme Court reiterated the principle that the
subsequent events cannot be ignored by the Court. It was held:
It is true that the Court can take notice of subsequent events. These
cases are where the Court finds that because of altered circumstances like
devolution of interest it is necessary to shorten litigation. Where the original
relief has become inappropriate by subsequent events, the Court can take notice
of such changes. If the Court finds that the judgment of the Court cannot be
carried into effect, because of change of circumstances the Court takes notice
of the same. If the Court finds that the matter is no longer in controversy the
Court also takes notice of such event. If the property which is the subject
matter of suit is no longer available the Court will take notice of such event.
The Court takes notice of subsequent events to shorten litigation, to preserve
rights of both the parties and to subserve the ends of justice.
(emphasis supplied)
Pasupuleti Venkateswarlu v Motor and General Traders5 is a case under the Andhra
Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. The landlord
filed eviction petition on the ground of bona fide requirement to start business
in automobile spares. The Rent Controller, as well as the appellate authority,
dismissed the landlord's case. This Court allowed the revision and remanded the
matter to the appellate authority which, in turn, remitted the case to the Rent
Controller for fresh disposal. Again the landlord carried the matter by way of
revision to this Court. At this stage, the tenants alleged that the landlord
took possession of another shop during the pendency of Rent Control proceedings.
Taking this subsequent event into consideration, this Court dismissed the
eviction petition as no longer maintainable under the relevant provision. The
question before the Supreme Court was whether the High Court was justified in
taking cognizance of subsequent events. The Apex Court referred to Lachmeshwar
Prasad Shukul v Keshwar Lal Chaudhuri6 and reiterated the principles as below:
First about the jurisdiction and propriety vis-a-vis circumstances which come
into being subsequent to the commencement of the proceedings. It is basic to our
processual jurisprudence that the right to relief must be judged to exist as on
the date a suitor institutes the legal proceeding. Equally clear is the
principle that procedure is the handmaid and not the mistress of the judicial
process. If a fact, arising after the lis has come to court and has a
fundamental impact on the right to relief or the manner of moulding it, is
brought diligently to the notice of the tribunal, it cannot blink at it or be
blind to events which stultify or render inept the decretal remedy. Equity
justifies bending the rules of procedure, where no specific provision or
fairplay is violated, with a view to promote substantial justice - subject, of
course, to the absence of other disentitling factors or just circumstances. Nor
can we contemplate any limitation on this power to take note of updated facts to
confine it to the trial court. If the litigation pends, the power exists, absent
other special circumstances repelling resort to that course in law or justice.
Rulings on this point are legion, even as situations for applications of this
equitable rule are myriad. We affirm the proposition that for making the right
or remedy claimed by the party just and meaningful as also legally and factually
in accord with the current realities, the Court can, and in many cases must,
take cautious cognisance of events and developments subsequent to the
institution of the proceeding provided the rules of fairness to both sides are
scrupulously obeyed.
(emphasis supplied)
In Rameshwar, the Supreme Court again reaffirmed the principle with regard
to the impact of subsequent happenings in civil litigation as under.
The impact of subsequent happenings may now be spelt out. First, its
bearing on the right of action, second, on the nature of the relief and third,
on its impotence to create or destroy substantive rights. Where the nature of
the relief, as originally sought, has become obsolete or unserviceable or a new
form of relief will be more efficacious on account of developments subsequent to
the suit or even during the appellate stage, it is but fair that the relief is
moulded, varied or reshaped in the light of updated facts. Patterson v State of
Alabama7 illustrates this position. It is important that the party claiming the
relief or change of relief must have the same right from which either the first
or the modified remedy may flow. Subsequent events in the course of the case
cannot be constitutive of substantive rights enforceable in that very litigation
except in a narrow category (later spelt out) but may influence the equitable
jurisdiction to mould reliefs. Conversely, where rights have already vested in a
party, they cannot be nullified or negated by subsequent events save where there
is a change in the law and it is made applicable at any stage. Lachmeshwar
Prasad Shukul v Keshwar Lal Chaudhuri falls in this category. Courts of justice
may, when the compelling equities of a case oblige them, shape reliefs - cannot
deny rights - to make them justly relevant in the updated circumstances. Where
the relief is discretionary, courts may exercise this jurisdiction to avoid
injustice. Likewise, where the right to the remedy depends, under the statute
itself, on the presence or absence of certain basic facts at the time the relief
is to be ultimately granted, the Court, even in appeal, can take note of such
supervening facts with fundamental impact. Pasupuleti Venkateswarlu read in its
statutory setting, falls in this category. Where a cause of action is deficient
but later events have made up the
deficiency, the Court may, in order to avoid multiplicity of litigation, permit
amendment and continue the proceeding, provided no prejudice is caused to the
other side.
The law may be thus taken as well settled that Order VII Rule 7 does not
bar the Court from granting relief which is not specifically stated if the
relief to be given after trial is incidental to the general and larger relief,
and such relief can be granted by the Court in the interest of justice. It is
also well settled that, generally, it shall be the duty of the Court to consider
the subsequent events which have a fundamental impact on the right to relief,
and mould the relief accordingly. If the property, of the subject matter of the
suit, is no longer available the Court will take notice of such event, and mould
the relief so as to shorten the litigation, and to subserve the ends of justice.
Applying these principles we have no hesitation to hold that the first
defendant, who was allegedly in wrongful possession after the plaintiff staked
claim to get back the mirasi right, could not have accepted the compensation
paid by the fourth defendant for a portion of the backyard of item 3 of the
plaint schedule. As the relief claimed in the plaint, inter alia, was also for
possession of this property, and the same was no longer completely available by
the time trial concluded, the Court had jurisdiction to direct payment of
compensation, received by the first defendant from TTD, to the plaintiff. This
is supported by the decision of the Supreme Court in Laxmi and Co. The law does
not prohibit the Court from taking into consideration subsequent events, and
mould the relief accordingly.
The plaintiff filed the suit for declaration of his right to perform
mirasi Service of Mutyala Harathi as successor of Tharigonda Vengamamba. He also
sought for a direction to the first defendant to deliver possession of items 1
to 3. By the time the suit was filed a major portion of item 1 was already
acquired, and the counsel for the plaintiff does not press the relief in so far
as item 1 is concerned. In so far as item 3 of plaint schedule property is
concerned, the trial Court as well as learned single Judge held that under
Ex.B.1, it is the plaintiff who would succeed to the right to perform Muryala
Harathi service to Lord Venkateswara. As items 1 to 3 are meant for meeting the
expenditure for celebrating Narasimha Jayanthi, merely because a portion of the
land in the backyard of item 3 was acquired by the fourth defendant, there
cannot be total denial of the relief although a decree for delivery of
possession could not have been granted for the simple reason that the land was
already acquired by the fourth defendant.
A declaration of title is a declaration in rem. If, as on the date of filing the
suit, the plaintiff was entitled for a declaration of his right to perform the
mirasi service, and also enjoy the plaint schedule properties, we fail to see
any bar in common law or statute law to pass a decree against the first
defendant for payment of the money which he received by way of compensation from
the fourth defendant.
The issue can also be considered in the light of Order XX Rule 12 of CPC.
As per this provision in a suit for recovery of possession of immovable
property, the Court can pass a decree for possession of the property, for rent
and/or mesne profits. Section 2(12) of CPC defines 'mesne profits' as to mean
'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 ...'. The word 'profit' or 'profits' as defined in the
New Oxford Dictionary of English (2002, Indian Edition) means 'financial gain'
and 'profited' means 'to obtain a financial advantage or benefit'. In Karamchari
Union, Agra v Union of India8, the Supreme Court, while construing Sections
2(24) and 17 of the Income Tax Act, 1961, held that the word 'profits' is also
used to convey 'any advantage' or 'gain' by receipt of any payment. After
referring to the meaning of profit, as given in Webster's Comprehensive
Dictionary, the Supreme Court laid down as follows.
Applying the aforesaid general meaning of the word "profits" and
considering the dictionary (sic statutory) meaning given to it under Sections
17(1)(iv) and (3)(ii), it can be said that "advantage" in terms of payment of
money received by the employee from the employer in relation or in addition to
any salary or wages would be covered by the inclusive definition of the word
"salary". Because of the inclusive meaning given to the phrase "profits in lieu
of salary" would include "any payment" due to or received by an assessee from an
employer, even though it has no connection with the profits of the employer. It
is true that the legislature might have avoided giving an inclusive meaning to
the word "salary" by stating that any payment received by the employee from an
employer would be considered to be salary except the payments which are excluded
by Section 17(3)(ii) i.e. clause (10), (10-A), (10-B), (11), (12), (13) or (13-
A) of Section 10. However, it is for the legislature to decide the same. This
would not mean that by giving an exhaustive and inclusive meaning, the word
"profits" can be given a meaning only when it pertains to sharing of profits by
the employer. For the assessee, the receipt of such amount would be a profit,
gain or advantage in addition to salary, even though it is not named as salary.
Therefore, the word "profits" in context is required to be understood as a gain
or advantage to the assessee.
Applying the above ratio, we are convinced that the term 'mesne profits' should
be given a wider meaning, and any advantage derived by a person in wrongful
possession of the subject matter of the suit would come within the meaning of
mesne profits. If, during the pendency of proceedings, a person in wrongful
possession gains some undue advantage or a windfall or compensation for
compulsory acquisition, there is no reason to exclude the same from 'mesne
profits'.
The term 'mesne' means 'intermediate or intervening'. Mesne profits are those
profits derived from the land by a person who is in wrongful possession during
his period of occupation and, accordingly, is liable to pay to the true
possessor as part of the compensation for wrongful possession. Mesne profits are
intermediate profits which has accrued to a person in wrongful possession
between two given periods. Commonly mesne profits are measured in terms of rents
and profits. It does not, however, mean that mesne profits always mean rents.
Section 2(12) read with Order XX Rule 12 makes a distinction between mesne
profits and rents. Rents may be part of mesne profits but mesne profits are not
only the rents. All the amounts which a person in wrongful possession had
received during his occupation would form mesne profits for the purpose of law.
If a person in wrongful possession receives compensation due to compulsory
acquisition of land either under the Land Acquisition Act, 1894 or acquisition
through negotiations, the amount of compensation also falls under the category
of mesne profits.
Applying the above reasoning, and also Order XX Rule 12 and the ratio in
Gopalakrishna Pillai, we cannot agree with the respondent/defendant's counsel
that a decree for payment of compensation received by the first respondent/first
defendant cannot be passed. When the Court has already declared the right of the
plaintiff, which is a larger and general relief, the denial of lesser and
incidental relief, of directing the first respondent/first defendant to pay back
the amount, she received from the fourth defendant, would be inequitable and
unjust. Therefore, to that extent, we hold that the learned single Judge was not
correct in denying the relief.
Accordingly, the Letters Patent Appeal is allowed. The judgment and decree of
the trial Court is confirmed modifying the decree directing the first defendant
to pay the amount she received from the fourth defendant to the extent of
Acs.0.451/2 cents being the backyard portion of item No.3 (house) acquired by
the fourth defendant. This shall be in addition to the decree for delivering
possession of item 3 which remains after acquisition. In the facts and
circumstances of the case, we deem it proper to direct the parties to bear their
own costs.
?1 AIR 1973 SC 171
2 AIR 1976 SC 49
3 AIR 1966 SC 735 : (1966) 2 SCR 286
4 AIR 1967 SC 155
5 (1975) 1 SCC 770 : AIR 1975 SC 1409
6 AIR 1941 FC 5
7 (1934) 294 US 600
8 (2000) 3 SCC 335 : AIR 2000 SC 1226
