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       REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION                    CIVIL APPEAL NO. 1464 OF 2008

M/s Raptakos, Brett & Co. Ltd.  .... Appellant(s)

Versus

M/s Ganesh Property       .... Respondent(s)

                  J U D G M E N T

R.K. Agrawal, J.

1) The above  appeal  has  been filed against  the  judgment

and  order  dated  22.08.2006  passed  by  the  High  Court  at

Calcutta in A.P.O. No. 350 of 2004, G.A. No. 3808 of 2004 and

A.P.O.T. No. 556 of 2004 in Civil Suit No. 457 of 1998 whereby

the Division Bench of the High Court partly allowed the appeal

filed by the appellant-Company.

2) Brief facts:

(a) The respondent herein leased out the premises bearing

No. 6, Marquis Street, Calcutta to the appellant-Company for a

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term of 21 years commencing from 16.03.1964 to 15.03.1985

under a registered Lease Deed dated 16.03.1964 at a monthly

rent of Rs. 2,045/-.   

(b) Before the expiry of the lease period, the respondent filed

a suit for recovery of possession being Suit No. 1023 of 1982

before the City Civil Court, Calcutta, Third Bench for bona fide

use.  Vide order dated 06.08.1986, Suit No. 1023 of 1982 for

recovery of possession was dismissed by the City Civil Court

with costs.

(c) On 11.08.1986, the respondent filed a Title  Suit  being

No.  1481  of  1986  before  the  8th Bench,  City  Civil  Court,

Calcutta  for  recovery of  possession and  mesne profit.   Vide

order dated 18.04.1991, learned single Judge of the City Civil

Court  decreed  the  suit  in  favour  of  the  respondent  while

declining the claim of  mesne profit as the said claim was not

pressed.  

(d) Being  aggrieved  by  the  order  dated  18.04.1991,  the

appellant-Company preferred an appeal being F.A.T. No. 1786

of 1991, re-numbered as First Appeal No. 253 of 1992.  Vide

order dated 09.07.1991, the Division Bench of the High Court,

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restrained the respondent from executing the decree on the

condition  that  the  appellant-Company  will  continue  to  pay

rent  at  the  rate  of  Rs.  2,500/-  per  month.  Further,  on

11.08.1997,  First  Appeal  No.  253  of  1992  was  dismissed,

however, the appellant-Company was granted 6 (six) months’

time to vacate the suit premises.

(e) Feeling  aggrieved  by  the  order  dated  11.08.1997,  the

appellant-Company filed a petition for special leave to appeal

being  No.  19695  of  1997  before  this  Court  which  was

converted into Civil Appeal No. 1657 of 1998.  This Court, vide

order dated 09.09.1998, had dismissed the appeal with certain

directions.   However,  on  an  application  filed  by  the

appellant-Company  seeking  modification  in  the  said  order,

this  Court,  vide  order  dated  25.09.1998  had  passed  the

following order on the said application:-

“On mentioning the IA is taken on Board. Having  heard  learned  counsel  for  the  parties  further directions are issued as under:- If the appellants hand over peaceful vacant possession of the premises in question on or before 08th October, 1998 then they will have to pay for the use and occupation charges only Rs. 2,500/- only, for the month of October.  If they fail to deliver possession by that time they will have to pay use and occupation charges for the month of October at the rate of

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Rs. 50,000/- only, as fixed by us earlier.  Rest of the order remains as it is. IA is disposed of accordingly.”

(f) After a long drawn litigation between the parties at all

levels, the appellant-Company handed over the possession of

the suit premises to the respondent on 08.10.1998.   

(g) The respondent filed a fresh suit being Civil Suit No. 457

of 1998 before the High Court against the appellant-Company

for  loss  and  damages  caused  to  the  respondent  due  to

wrongful possession to the tune of Rs. 3,23,56,695/- .  The

appellant-Company preferred G.A. No. 3380 of 2003 in Civil

Suit No. 457 of 1998 under Order VII Rule 11(a) of the Code of

Civil Procedure, 1908 (in short ‘the Code’) for dismissing the

suit.  Learned single Judge of the High Court, vide order dated

28.07.2004,  dismissed  the  application  filed  by  the

appellant-Company

(h) Aggrieved  by  the  order  dated  28.07.2004,  the

appellant-Company preferred APOT No. 556 of 2004 in Civil

Suit  No.  457  of  1998  before  the  High  Court.  The  Division

Bench  of  the  High  Court,  vide  judgment  and  order  dated

22.08.2006, partly allowed the appeal holding that the suit is

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maintainable while leaving the question of  mesne profit open

for the decision by the trial court.   

(i) Aggrieved  by  the  order  dated  22.08.2006,  the

appellant-Company has preferred this appeal by way of special

leave before this Court.

3) Heard Mr. Shyam Dewan, learned senior counsel for the

appellant-Company and Mr. Pranab Kumar Mullick, learned

counsel for the respondent and perused the records.

Point(s) for consideration:-   

4) Whether in the facts and circumstances of  the present

case, the subsequent suit filed by the respondent for  mesne

profits is maintainable?

Rival submissions:-

5) Learned  senior  counsel  for  the  appellant-Company

strenuously  contended  that  the  appellant-Company  vacated

the property on 08.10.1998 pursuant to the order passed by

this Court on 25.09.1998 in Civil Appeal No. 1657 of 1998.  In

Suit No. 1481 of 1986, the respondent had not pressed the

issue of mesne profit and accordingly the court had held that

“the Respondent-plaintiff was not entitled to mesne profits for

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occupation of the premises.  In appeal also, the issue of mesne

profit was not pressed.  Thus, the issue of mesne profit being

not  pressed  nor  challenged  has  attained  finality  and  the

respondent is estopped from raising the same by way of fresh

suit.  Further,  this  Court,  vide  order  dated 25.09.1998,  had

directed that  if  the  appellant-Company hands over  peaceful

vacant possession of the premises in question on or before 8th

October, 1998, then they will have to pay Rs. 2,500/- for the

use and occupation charges for the month of October, 1998,

otherwise, Rs. 50,000/- for the same which order has been

complied with by  the  appellant-Company and,  indisputably,

the possession has been handed over on 08.10.1998.  In any

case,  the  respondent,  after  getting  possession  of  the  suit

premises, has filed a subsequent action being Suit No. 457 of

1998 for mesne profit.  Learned senior counsel contended that

the suit is not maintainable at all and is barred by res-judicata

and the claim of  mesne profit  had already attained finality.

There is  bar on the respondent to raise the point of  mesne

profit  in  a  subsequent  suit  when  the  same  had  not  been

pressed  before  the  courts  below.   Learned  senior  counsel

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finally  submitted  that  the  suit  is  not  maintainable  and  is

contrary to law and facts and expressly hit by Order II Rule 2

of the Code and also barred by the principles of estoppel and

res-judicata.  In  support  of  his  submissions,  learned  senior

counsel  has  relied  upon  a  decision  in  the  case  of  Bhanu

Kumar Jain vs. Archana Kumar and Another (2005) 1 SCC

787.  

6) Learned counsel for the respondent submitted that the

present appeal is misconceived and is an abuse of the process

of  law.   The  issue  sought  to  be  raised  by  the

appellant-Company,  including  the  grounds  of  res  judicata,

limitation etc. were never raised in the written statement nor

in the applications challenging maintainability of the suit.  He

further submitted that the issue raised relates to mesne profits

after the decree for eviction has been passed on the ground of

wrongful occupation after expiry of lease.  The cause of action

is entirely different.  It  was  further  submitted  that  the

respondent had waived its claim of  mesne profits before the

City Civil Court at Calcutta only up to the date of disposal of

suit being Title Suit No. 1481 of 1986 and was not debarred

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from  claiming  mesne profits  after  the  date  of  decree,  i.e.

18.04.1991. It is well settled by a catena of judgments that a

landlord can maintain a second suit for mesne profits.  Hence,

claim  for  mesne profits  for  the  period  after  the  decree

constitutes a distinct and separate cause of action. Learned

counsel finally submitted that the appeal is not maintainable

and the respondent is entitled to mesne profits.  In support of

his  submissions,  learned  counsel  has  relied  upon  the

decisions in the case of  Ram Karan Singh and Others vs.

Nakchhad  Ahir  &  Others AIR  1931  Allahabad  429  and

State Bank of India vs. Gracure Pharmaceuticals (2014) 3

SCC 595.

Discussion:-

7) The continuance in  possession of  the  premises  by  the

appellant-Company on or after the passing of  the decree in

Suit No. 1481 of 1986 was on the basis of the order passed by

the  High  Court  of  Calcutta  in  F.A.  No.  253  of  1992  dated

09.07.1991 and orders dated 03.11.1997 in SLP (C) No. 19695

of  1997  and  25.09.1998  in  Civil  Appeal  No.  1657  of  1998

passed  by  this  Court.   Thus,  the  appellant-Company  was

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paying the amount as directed by the Courts, as a condition

for  continuing  in  possession  of  the  leased  premises.   The

appellant-Company was thus in occupation of  the premises

from  18.04.1991  till  possession  was  surrendered  on

08.10.1998, pursuant to the court’s orders.  Further, it is also

evident on record that in Suit No. 1481 of 1986, the issue of

mesne profit was not pressed by the respondent and the same

was also not pressed before the High Court in appeal nor was

it raised before this Court.   

8) In the  light  of  the  above  indisputable  facts,  the  plaint

now filed cannot be considered as one disclosing a cause of

action for maintaining a suit for mesne profits or damages for

the same period for which a claim was raised in the earlier suit

and  deliberately  withdrawn  or  given  up  by  the  respondent

before the Court.  

9) In the  interim orders  dated 09.07.1991 passed by  the

High Court in appeal and this Court in SLP (C) No. 19695 of

1997 dated 03.11.1997,  the  respondent has  not  raised any

objection and has allowed the said orders to become final and

binding.  Both parties have acted upon the said orders as fully

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valid and binding on them.  The amount fixed as a condition

for  allowing the  appellant-Company to  occupy the  premises

was fixed at Rs. 2,500/- which was fixed by the court taking

note of the fact that the appellant-Company is being allowed to

continue  even  after  the  expiry  of  the  lease  period.   If  the

respondent  was  not  satisfied  with  the  amount  fixed  as

occupation charges, then it  should have raised an objection

praying  for  varying  the  amount  specified  as  a  condition

precedent for continuing in possession of the said premises.

This is particularly relevant as the respondent has without any

objection  accepted  the  interim  orders  allowing  the

appellant-Company to continue in possession.  

10) In  this  connection,  it  is  relevant  to  note  that  the

respondent herein, in Suit No.  457 of 1998, has allowed the

decree passed by the Court in T.S. No. 1481 of 1986 to become

final,  thus  accepting  the  finding  of  the  trial  court  that  the

landlord  is  not  entitled  to  claim  mesne profits  for  the

occupation on or after 15.03.1985, i.e., the date of termination

of the lease deed.  It is pertinent to note that such a decree

was passed mainly on the ground that the respondent in that

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suit had consciously given up the claim for mesne profits from

the  expiry  of  the  lease  period  till  recovery  of  possession.

Therefore,  the  respondent  is  estopped  from  claiming  any

mesne profits for the period after 15.03.1985, i.e. the period

for which mesne profits were claimed in Suit No. 457 of 1998.  

11) Further,  the  appellant-Company,  while  complying  with

the  order  dated  25.09.1998  passed  by  this  Court  in  Civil

Appeal No. 1657 of 1998, handed over the vacant possession

of the premises to the respondent on 08.10.1998 as is evident

by the receipt issued by the respondent. From the above, it

can  be  said  that  the  Respondent,  by  his  own  conduct,

accepted  the  orders  passed  by  this  Court  in  allowing  the

appellant to occupy the premises conditionally on payment of

Rs. 2,500/- from the disposal of the appeal by the High Court

till the disposal of the SLP in this Court.  It would suggest that

the averments in the plaint in Suit No. 457 of 1998 would not

disclose  any cause  of  action and,  therefore,  the  suit  is  not

maintainable.  

12) Further, on and after 18.04.1991, the date of decree in

T.S. No. 1481 of 1986, the continuation of possession by the

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appellant-Company was fully on the basis of the orders passed

by  the  City  Civil  Court  in  F.A.T.  No.  1786  of  1991,  later

re-numbered as F.A. No. 253 of 1992.  It was a conditional

order  allowing  the  appellant-Company  to  continue  in

possession on condition of paying an amount of Rs. 2,500/- .

The amount so fixed by the Court after considering the claim

of  the  Respondent  for  enhancement  of  the  amount  of

compensation for continuation of possession after the expiry of

the lease period. Though this order has not been challenged by

the respondent,  it  was allowed to stand for about six years

until  the  appeal  was  finally  heard  and  dismissed  on

11.08.1997. It was on the basis of the above conditional order

that the appellant-Company had acted upon and enjoyed the

benefits  conferred  by  the  order  on  both  parties.  In  the

circumstances, the respondent is estopped from claiming any

amount as mesne profits during the period from 18.04.1991 to

11.08.1997, i.e., the date on which F.A. No. 253 of 1992 was

finally disposed off.  

13) In view of the above, we are of the opinion that the High

Court  erred in  not  appreciating that  the  respondent having

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given up its claim for mesne profits in Suit No. 1481 of 1986,

the subsequent suit being Suit No. 457 of 1998 is clearly hit

by Order II Rule 2 of the Code.  For ease of reference, Order II

Rule 2 is extracted hereunder:

“2.Suit to include the whole of the claim: (1) xxxxx (2) Relinquishment of part of claim: Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.  (3) xxxxx”

14) In  Ram  Karan  Singh  (supra),  a  Full  Bench  of  the

Allahabad  High  court  while  examining  the  issue  of

maintainability  of  second  suit  for  pendente  lite and  future

mesne profits where earlier suit for possession and past mesne

profits has already been decided has held as follows:-

“It seems to us that the cause of  action for recovery of possession is not necessarily identical with the cause of action for  recovery  of  mesne profits.   The provisions of order  II  Rule  4,  indicate  that  the  legislature  thought  it necessary to provide specially for joining a claim for mesne profits with one for recovery of possession of immovable property, and that but for such an express provision, such a combination might well have been disallowed.  A suit for possession can be brought within twelve years of the date when the original dispossession took place and the cause of action for recovery of possession accrued.  The claim for mesne profits  can only  be brought  in respect  of  profits within three years of the institution of the suit and the date  of  the  cause  of  action  for  mesne  profits  would  in many cases be not identical with the original date of the

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cause  of  action  for  the  recovery  of  possession.   Mesne profits accrue from day to day and the cause of action is a continuing  one,  and  arises  out  of  the  continued misappropriation  of  the  profits  to  which  the  plaintiff  is entitled.   In  many cases,  the  plaintiff  may not  be  in  a position to anticipate the exact amount of mesne profits to which he may become entitled after the institution of the suit.  The object of Order II, Rule 2 is the prevention of the splitting up of one cause of action and not to compel the plaintiff  to  seek  all  the  remedies  which  he  can  claim against the same defendants on account of several causes of  action  in  one  and  the  same  suit.   In  one  case,  the multiciplicity of suits is to be avoided and, in the other, multifariousness of the causes of action.  It is also clear that the bundle of facts which would constitute the cause of action in favour of the plaintiff would not necessarily be identical in a suit for recovery of possession and in a suit for mesne profits.  In a suit for possession, the plaintiff need only prove his  possession within twelve years and the defendant’s occupation of the property without right. In a suit for mesne profits he has, in addition, to prove the duration  of  the  whole  period  during  which  the dispossession continued, including the date on which it terminated, as well as the amount to which he is entitled by way of damages.  Evidence to prove these latter facts would undoubtedly be different from that which would be required to prove the first set of facts.  Again, if there are a number of defendants who are in possession of different portions  of  the  property,  there  may  be  considerable difficulty in ascertaining the amount which, each is liable to  pay  and  the  plaintiff  may  think  it  convenient  to postpone an inquiry of such a complicated nature to a suit after his right to possession has been fully established.”      

15) In  Bhanu  Kumar  Jain  (supra),  this  Court  has

considered the distinction between “issue estoppels” and “res

judicata” and has held as follows:-

“29. There is a distinction between “issue estoppel” and “res judicata”. (See Thoday v. Thoday.)

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30. Res  judicata  debars  a  court  from  exercising  its jurisdiction  to  determine  the  lis  if  it  has  attained  finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of  res judicata creates a different kind of estoppel viz. estoppel by accord.

31. In  a  case  of  this  nature,  however,  the  doctrine  of “issue estoppel” as also “cause of action estoppel” may arise. In Thoday Lord Diplock held:  

“… ‘cause of action estoppel’, is that which prevents a party to an action from asserting or denying, as against the  other  party,  the  existence  of  a  particular  cause  of action, the non-existence or existence of which has been determined  by  a  court  of  competent  jurisdiction  in previous litigation between the same parties. If the cause of action was determined to exist i.e. judgment was given on it, it is said to be merged in the judgment.… If it was determined not to exist, the unsuccessful plaintiff can no longer  assert  that  it  does;  he  is  estopped  per  rem judicatam. 32. The said dicta was followed in Barber v. Staffordshire

County Council.  A cause of action estoppel arises where in two different proceedings identical issues are raised, in which event, the latter proceedings between the same parties shall be  dealt  with  similarly  as  was  done  in  the  previous proceedings. In such an event the bar is absolute in relation to all points decided save and except allegation of fraud and collusion.  [See  C.  (A  Minor) v.  Hackney  London  Borough Council.]”

16) In the case of  State Bank of India (supra), this Court

has examined the provisions of Order II, Rule 2 of the Code

and has held as under:-

“7. We  may,  before  examining  the  rival  contentions, extract the relevant provisions of Order 2 Rule 2 CPC for easy reference which reads as under:

“2.  Suit to include the whole claim.—(1) Every suit shall include the whole of the claim which the plaintiff is

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entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court.

(2)  Relinquishment  of  part  of  claim.—Where  a plaintiff  omits  to  sue  in  respect  of,  or  intentionally relinquishes,  any  portion  of  his  claim,  he  shall  not afterwards  sue  in  respect  of  the  portion  so  omitted  or relinquished.

(3)  Omission  to  sue  for  one  of  several  reliefs.—A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for  all  such reliefs,  he shall  not afterwards sue for  any relief so omitted.” 8. The scope of the abovementioned provisions came up

for  consideration  before  this  Court  in  several  cases.  The earliest one dealt by the Privy Council was reported in Naba Kumar  Hazra v.  Radhashyam  Mahish wherein  the  Privy Council held that the plaintiff cannot be permitted to draw the defendant to court twice for the same cause by splitting up the claim and suing, in the first instance, in respect of a part  of  claim only.  In  Sidramappa v.  Rajashetty this  Court held that if  the cause of  action on the basis of  which the previous suit was brought, does not form the foundation of subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he sought in the subsequent suit,  the  latter,  namely,  the  subsequent  suit,  will  not  be barred by the rule contained in Order 2 Rule 2 CPC.

9. In  Gurbux  Singh v.  Bhooralal the  scope  of  the abovementioned provision was further  explained as  under: (SCC p. 1812, para 6)

“6. In order that a plea of a bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed the defendant who raises the plea must make out; (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief;  (3)  that being thus entitled to more than one relief the plaintiff, without leave obtained from the court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous

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suit  was  filed,  for  unless  there  is  identity  between  the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar.” 10. In Sandeep Polymers (P) Ltd. case the abovementioned

principles were reiterated and this Court held as under: (SCC p. 158, para 13)

“13.  ‘22.  Under  Order  2  Rule  1  of  the  Code  which contains provisions of mandatory nature, the requirement is that the plaintiffs are duty-bound to claim the entire relief. The suit has to be so framed as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Rule 2 further enjoins on the plaintiff to include the whole of the claim which the plaintiff  is  entitled  to  make  in  respect  of  the  cause  of action.  If  the  plaintiff  omits  to  sue  or  intentionally relinquishes any portion of his claim, it is not permissible for  him to  sue  in  respect  of  the  portion  so  omitted  or relinquished afterwards.’*” 11. The abovementioned decisions categorically lay down

the law that if a plaintiff is entitled to seek reliefs against the defendant in respect of the same cause of action, the plaintiff cannot split up the claim so as to omit one part to the claim and sue for  the other.  If  the cause of  action is  same,  the plaintiff has to place all his claims before the court in one suit,  as  Order  2  Rule  2  CPC  is  based  on  the  cardinal principle that the defendant should not be vexed twice for the same cause.

12. Order 2 Rule 2 CPC, therefore, requires the unity of all claims based on the same cause of action in one suit, it does not  contemplate  unity  of  distinct  and  separate  causes  of action. On the abovementioned legal principle, let us examine whether  the  High  Court  has  correctly  applied  the  legal principle in the instant case.”

17) From a reading of the provisions of Order II, Rule 2 and

Rule 4 of the Code and also the principles laid down in the

aforementioned cases, it is clear that under Order II, Rule 2

read with Rule 4, the plaintiff can also claim mesne profits or

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arrears of rent in a suit filed for ejectment of the tenant.  The

plaintiff can further file a fresh suit for claiming mesne profits

or  arrears  of  rent  for  the  period  subsequent  to  the  decree

passed in the earlier suit having become final.  But in a case

where the plaintiff has claimed mesne profits or arrears of rent

in a suit filed for ejectment of the tenant and has relinquished

his rights vis-à-vis mesne profits or arrears of rent in the suit

proceedings itself, the provisions of Order II, Rule 2 will come

into  play  and  in  comparison  to  the  second  suit  for  mesne

profits or arrears of  rent till  the decree, the earlier suit will

attain finality.   

18) Applying the above principles to the facts of the present

case, we find that the decree in the earlier Suit No. 1481 of

1986 filed for ejectment of the appellant-Company and mesne

profits attained finality on 09.09.1998 and 25.09.1998 when

this Court had dismissed Civil Appeal No. 1657 of 1998 and

the  application  respectively  filed  by  the  appellant  herein.

However, vide order dated 25.09.1998, this Court had directed

that  if  the  appellant  hands  over  the  peaceful  vacant

possession  of  the  premises  in  question  on  or  before

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08.10.1998 then they will have to pay Rs. 2,500/- for the use

and  occupation  charges  for  the  month  of  October  1998

otherwise Rs. 50,000/- as fixed earlier.  It is not in dispute

that  in  the  present  case,  the  appellant  had  handed  over

peaceful vacant possession to the respondent on 08.10.1998

and  also  that  the  respondent  had  relinquished  the  plea  of

mesne profits  during  the  suit  proceedings  itself.   Thus  the

prohibition contained in Order II Rule 2 would squarely apply.  

19) Having regard to the earlier proceedings, as mentioned

above, in Civil  Suit  No. 1481 of 1986, wherein a decree for

possession was passed but the claim for  mesne profits  was

relinquished by  the  respondent-landlord  and in  view of  the

subsequent orders of the Division Bench and this Court, the

question  of  further  payments  on  account  of  mesne profits

which had been fixed and paid in the earlier suit did not arise.

The subsequent suit claiming mesne profits for the very same

period  during  which  a  fixed  amount  was paid  by  the

appellant-Company and accepted by the respondent without

objection  is  clearly  not  maintainable.  The  plaint  does  not

disclose any cause of action or any clear right to sue and was

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liable to be rejected.  The above facts would clearly show

that the averments in the plaint read along with the orders

and pleadings relied upon by the respondent in support of the

reliefs prayed for in Civil Suit No. 457 of 1998 do not disclose

any  cause  of  action  for  the  prayer  for  mesne profits  made

therein.  

Conclusion:-

20) In view of the above, we are of  the considered opinion

that the possession of the appellant-Company for the period

under consideration, pursuant to orders passed by the High

Court and this Court,  cannot in any view be considered as

illegal  or  unauthorized  or  that  of  a  trespasser.   For  that

reason,  the  plaint  in  Civil  Suit  No.  457  of  1998  does  not

disclose any cause of action for filing a suit for  mesne profits

till  surrender  of  possession.  Therefore,  the  issue  of  mesne

profit  attained finality and the respondent is not entitled to

raise the same issue now by way of filing a fresh suit.  In other

words, by not pressing the claim of  mesne profits raised in a

suit  before  the  Court,  unconditionally  and  without  any

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reservation, the respondent cannot thereafter turn around and

claim the same relief by filing a fresh suit.

21) In view of the foregoing discussion, we allow the appeal

filed by the appellant-Company.

...…………………………………J.                 (R.K. AGRAWAL)

…………….………………………J.            (R. BANUMATHI)

NEW DELHI; SEPTEMBER 5, 2017.