Suit for Mesne Profits – The Three-Year Limitation Conundrum in Indian Civil Procedure

Suit for Mesne Profits – The Three-Year Limitation Conundrum in Indian Civil Procedure

Introduction

Claims for mesne profits—profits that a person in wrongful possession either actually received or could with due diligence have received from immovable property[1]—frequently accompany actions for recovery of possession. Despite their seemingly ancillary nature, such claims are controlled by a complex interaction of the Code of Civil Procedure, 1908 (“CPC”), the Limitation Act, 1963, and judge-made doctrines that restrict the recoverable period to three years both before institution of the suit and, in many circumstances, after the passing of a decree. This article critically examines the provenance, scope and limits of that three-year ceiling, integrating the most salient statutory provisions and judicial pronouncements.

Conceptual Framework: Mesne Profits, Wrongful Possession and Continuing Cause

Section 2(12) CPC defines mesne profits as profits that a person in wrongful possession actually or constructively received, together with interest[1]. Liability therefore presupposes two foundational facts: (i) the defendant’s possession is unlawful or without right[2]; and (ii) the plaintiff is the person legally entitled to those profits. Judicially, the cause of action is characterised as “continuing”, accruing de die in diem until possession is restored (Raptakos Brett v. Ganesh Property, 2017 SCC Online SC 1721)[3]. The continuing nature, however, does not obviate the statutory time bars considered below.

Statutory Architecture Governing the Three-Year Period

Order XX Rule 12 CPC

Order XX Rule 12(1) empowers a court decreeing possession of immovable property to pass, in the same suit, a decree for:

  • (a) mesne profits accrued prior to institution of the suit;
  • (b) future mesne profits (i.e., from the date of suit to the date of decree); and
  • (c) further mesne profits (i.e., from the date of decree until delivery of possession).

Crucially, sub-clause (1)(c)(iii) limits recovery of further mesne profits “to a period not exceeding three years from the date of the decree.” In the absence of an express inquiry and final decree within that statutory window, the decree-holder’s claim is automatically truncated (Kumar Jagdish Chandra v. Bulaqi Das, Allahabad HC 1958)[4].

The Limitation Act, 1963

Where mesne profits are claimed by independent suit (i.e., not in the suit for possession), Article 113 (the residuary article) fixes a three-year period from the date the right to sue accrues. Since mesne profits accrue day-to-day, the owner must sue within three years from each distinct accrual; sums older than three years are irrecoverable (Indian Oil Corp. v. Sudera Realty, 2022 SCC Online SC 1161)[5].

Judicial Elucidation of the Three-Year Ceiling

(A) Pre-Suit Ceiling: Three Years Prior to Institution

Courts routinely confine the plaintiff’s decree to profits for three years prior to filing, despite broader factual assertions (Gopalakrishna Pillai v. Meenakshi Ayal, 1966 AIR SC 155)[6]. The practice derives from equitable considerations and the analogy to Article 113, even though Order XX Rule 12 is silent on the anterior ceiling.

(B) Post-Decree Ceiling Under Order XX Rule 12(1)(c)(iii)

Allahabad High Court precedent in Kumar Jagdish Chandra[4] holds that a decree which simply awards mesne profits “till delivery of possession” must be construed subject to the statutory limit of three years after the final decree. The rule therefore operates ipso jure; parties cannot contract out of it. The decision in Chittoori Subbanna v. Kudappa Subbanna (1965 AIR SC 1325) further confirmed that an appellate court should not permit mesne profits beyond this limit when the issue is raised, even for the first time on appeal, because it is a pure question of law[7].

(C) Continuing Cause Doctrine and Independent Suits

The Supreme Court in Raptakos Brett[3] and again in Bharat Petroleum v. ATM Constructions (2023 SC)[8] clarified that (i) suits for possession and suits for mesne profits involve distinct causes of action, and (ii) successive suits for mesne profits are maintainable every three years so long as possession remains with the defendant, without offending Order II Rule 2 CPC. The Court, however, reiterated the three-year cap under the Limitation Act for each fresh suit.

(D) Wrongful versus Permissive Possession

No mesne profits can be awarded where possession is permissive, not wrongful (Union of India v. Banwari Lal & Sons, 2004 5 SCC 304)[9]. The distinction matters because the limitation regime for mesne profits presupposes wrongful possession. Once the possession becomes lawful, the clock for mesne profits stops.

Interplay with Order II Rule 2 CPC: Splitting of Causes

The Full Bench in Saghir Hasan v. Tayab Hasan (1940 All 52)[10] held that a plaintiff who sues for mesne profits without concurrently seeking possession—when such relief was open—faces a bar under Order II Rule 2 in a later suit for possession. However, where the first suit is for possession alone, a subsequent suit for mesne profits is not barred, because the two causes of action differ (Sadhu Singh v. Pritam Singh, 1975 P&H)[11]. The later Supreme Court analysis in Raptakos Brett[3] aligns with the latter view, recognising the practical impossibility of assessing future profits at the stage of the possession suit.

Execution Proceedings and the Twelve-Year Rule—A Contrast

A decree awarding mesne profits—whether limited to three years or otherwise—must itself be executed within twelve years under Article 136 of the Limitation Act. The Supreme Court in Bimal Kumar v. Shakuntala Debi (2012 3 SCC 548) emphasised that execution time begins when the decree becomes enforceable and is not tolled by collateral challenges[12]. The decision, although rendered in the context of a partition compromise decree, warns decree-holders that dilatory tactics can forfeit even decreed mesne profits.

Practical Implications for Litigants and Courts

  • Plead Precisely: Plaintiffs should always plead mesne profits in the possession suit to avoid Order II Rule 2 complications, but must be mindful that only three years’ future profits are statutorily recoverable absent fresh litigation.
  • Seek Timely Inquiries: Because Order XX Rule 12 contemplates a separate inquiry, decree-holders must obtain a final decree on mesne profits within three years, failing which recovery beyond that period is barred.
  • Independent Suits: When possession is obstinately withheld for years, fresh suits every three years (or carefully framed composite suits with staged inquiries) remain the safest procedural devices.
  • Differentiate Occupation: Lawyers must evaluate whether the defendant’s possession is wrongful (making mesne profits recoverable) or permissive (inviting only fair rent, as in Banwari Lal).

Conclusion

The “three-year rule” for mesne profits under Indian law is dual-tracked: (i) a statutory ceiling under Order XX Rule 12(1)(c)(iii) for further profits post-decree, and (ii) a limitation bar derived from Article 113 for profits accruing more than three years before any suit. Judicial decisions from Kumar Jagdish Chandra to Bharat Petroleum and Raptakos Brett have consistently enforced these limits, while simultaneously acknowledging the continuing nature of the cause of action. Litigants who strategise without heed to these temporal boundaries risk irreversible forfeiture of substantial monetary relief.

Footnotes

  1. Code of Civil Procedure, 1908, s. 2(12).
  2. Patel Shambhubhai Bhaichanddas v. State of Gujarat, (2006) Guj HC.
  3. Raptakos Brett & Co. Ltd. v. Ganesh Property, (2017) SCC OnLine SC 1721.
  4. Kumar Jagdish Chandra (J.D.) v. Bulaqi Das, Allahabad HC (1958).
  5. Indian Oil Corporation Ltd. v. Sudera Realty (P) Ltd., 2022 SCC OnLine SC 1161.
  6. Gopalakrishna Pillai v. Meenakshi Ayal, 1966 AIR SC 155.
  7. Chittoori Subbanna v. Kudappa Subbanna, 1965 AIR SC 1325.
  8. M/S Bharat Petroleum Corporation Ltd. v. ATM Constructions Pvt. Ltd., 2023 SC.
  9. Union of India v. Banwari Lal & Sons (P) Ltd., (2004) 5 SCC 304.
  10. Saghir Hasan v. Tayab Hasan, 1940 SCC OnLine All 104.
  11. Sadhu Singh v. Pritam Singh, (1975) P&H HC.
  12. Bimal Kumar v. Shakuntala Debi, (2012) 3 SCC 548.