i) The claim for 'Mesne Profit' remains floating till the decree of possession is passed in favour of the plaintiff, which can also be termed as royalty;
ii) The measure of Mesne Profits is the value for the use of the premises and not necessarily the value of the property;
iii) Value for use will be determined by:
a. What that value will be in the hands of the person in wrongful possession;
b. comparables, if available and applicable in real sense;
c. finding out the prevailing rate of rental at which the wrongful person ought to have found equivalent accommodation.
No, if one turns to the facts of the present case in general and the order dated 29.11.2006 passed by the Court Receiver in particular, the foundation thereof is the valuation report of M/s. S.S. Joshi Associates dated 28.11.2006, in which the test applied for determination of the amount of royalty is the estimated returns from the suit property. What is taken into account is the estimated value of the property and estimated loss of profit or income suffered by the owner. The proper measure of Mesne Profits ought to be value of the user of the land or the premises to a person in wrongful possession as ruled by the Apex Court in the case of Fateh Chand {supra). The Apex Court has clearly ruled that an estimated value of the property and estimated returns thereof cannot be the basis for computing the mesne profits. The valuer in addition to the method adopted ought to have ascertained the value of the user of the suit premises in the hands of the defendant. In addition, the valuer ought to have found out the comparables coupled with the prevailing rate of rentals or the prevailing rate of rent at which the wrongful person could have found equivalent accommodation on the date of the suit. In addition to this annual letting value of the suit premises determined by the Municipal Corporation ought to have been taken into account for determining the quantum of monthly royalty floating mesne profit till the decree for possession is passed in favour of the plaintiffs.
IN THE HIGH COURT OF BOMBAY
Chamber Summons Nos. 1539 of 2006 and 1820 of 2007 in Suit No. 1996 of 2006
Decided On: 23.04.2008
Humayun Dhanrajgir and Ors.Vs. Ezra Aboody
Hon'ble Judges/Coram:
V.C. Daga, J.
Citation: 2009(1) ALLMR 844
