Recently, the Delhi High Court has held that mesne profits cannot be awarded in the absence of credible evidence as to the prevailing market rent for similarly situated properties. Justice Subramonium Prasad, deciding a suit for possession and damages, declined to grant mesne profits, observing that the plaintiffs had failed to produce either oral or documentary evidence to substantiate their claim of ₹2,00,000 per month.
The plaintiffs, Sarvinder Singh and his brother, had instituted a suit against the defendant, Vipul Tandon, seeking possession of a multi-storey flat, along with mesne profits for its unauthorized occupation. While a decree of possession had already been passed in May 2016 under Order XII Rule 6 CPC, the claim for mesne profits remained pending.
The suit property originally belonged to the plaintiffs' mother, late Nirmal Satyendra Singh. Following her death, the defendant, who had acted as her caretaker, sought probate of a purported will, allegedly bequeathing the property to him. The probate was initially granted but was later revoked by the High Court upon finding that the grant had been procured by fraud and concealment of material facts. The underlying will was ultimately disbelieved.
With the plaintiffs declared Class-I legal heirs, their entitlement to possession was undisputed. However, for the period of illegal occupation, from the date of filing the suit on 6 August 2015 until delivery of possession on 17 July 2018, they sought mesne profits calculated at ₹2,00,000 per month, along with interest at 15% per annum.
While rejecting the claim, the Court held, “Mere guess work cannot be used for ascertaining the rent. This Court cannot make a guess work in thin air. Guess work cannot take the form of evidence. Coming to a figure which might be the rent of the area on its own without any material is not permissible in law.”
The Court noted that despite asserting the prevailing rental value in the locality, the plaintiffs had not adduced any evidence, either through witnesses or documents, showing the rental income of similar properties in the vicinity. Their sole witness was discharged unexamined, and no independent valuation or comparative rent data was submitted.
Further, while referring to Section 2(12) of the Code of Civil Procedure and precedent such as Ramakka v. V. Negasam, the Court affirmed that the burden rests on the claimant to prove entitlement to mesne profits, either by demonstrating actual earnings or by establishing what could reasonably have been earned through the exercise of ordinary diligence.
The Court concluded that while the plaintiffs’ entitlement to possession had been adjudicated earlier, their claim for mesne profits could not be granted in the absence of evidentiary support. Accordingly, the suit was disposed of, and the relief for mesne profits rejected.
Case Title: Sarvinder Singh & Anr Vs. Vipul Tandon
Case No.: CS(OS) 2453/2015
Coram: Justice Subramonium Prasad
Advocate for Plaintiff: Adv. Abhishek Aggarwal
Advocate for Defendant: Advs. Aniruddh Sharma and Pratibha Bhadoria
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