Defendant is ordered to pay plaintiff fixed mesne profit by applying under order XX rule 12(1)(c) of C.P.C.
1) How is mesne profit determined?
2) As I understand the onus to prove the amount of profit gained by selling the 'produce' from the orchards/rice fields lies on petitioner? What if he unable to get the witness (that is traders), can the honourable court summon the said witnesses to cross examine them? And what if the said witnesses(traders) deny they know defendant or bought any of the produce from defendant. That is the petitioner is unable to quantify the amount of profit vested by defendant?
How then is mesne profit determined by honourable court?
3) Does the honourable court fix some minimum reasonable amount to be given to plaintiff as mesne profit incase petitioner is unable to provide proof of income generated by defendants through the orchard/rice fields? My late lawyer had told me in 1988 itself it may be a reasonable amount of Rs.2000/year (Although I am not aware how he determined it. Note he knew our land holdings are 2 hecters total)
4) Is interest chargable on mesne profits since the judgement came out in 1988 and petitioner only got possession in 2015? And what is the rate of interest if any?
5) How will mesne profit be excecuted as defendants are now projecting that they are in debt, the house in village is morgaged and they have no money!? This is even before I have taken any steps to recover the money. All of defendants children are self earning and not dependant on the earnings from agricultural produce.
6) Please note entire area of coconut orchards amounting to 1 hecter and rice fields amount to 1 hecter have been under possession of defendant from 1988 (when judgement decree was given in favour of plaintiff i.e. me). Amount of trees in coconut orchard like coconuts/areca/jackfruit etc are known. Will amount of trees known somehow help in determining defendants annual income to give me mesne profits? I am entitled to 1/3rd.
7) Incase defedant dies during this procedure, who pays mesne profits? Are his 8 children liable by law to pay or not?
8) Defendant has been absent in court for past 10 years during compliance hearing. What if he refuses to come to for hearing of mesne profit or refuses to pay up or gives medical reasons? What legal recourse is left for me?
My current lawyer is cosistently discouraging me from asking about mesne profit. Infact he is the one who has put fear in me saying that the onus of proving the profit lies solely on me as petitioner and it will take even more years (like the partition suit did for 20 years) and I will get nothing for it.
He is now encouraging me to sign a document to submit to court to close the case.
