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   REPORTABLE

       IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

I.A.No. 4 of 2014

IN

       SPECIAL LEAVE PETITION (C) No.13915/2008)

Sant Ram                               …….Applicant/      Petitioner(s)

VERSUS

Dhan Kaur & Ors.          ……Respondent(s)

                 J U D G M E N T

Abhay Manohar Sapre, J.

1) This is  an application filed by the applicant-

petitioner-in-person under Order XVIII Rule 5 of the  

Supreme Court Rules, 1966 (for  short ‘the Rules’)  

for appeal against the order dated 13.02.2014 of the  

Registrar(J-II)  refusing  to  register  the  application  

(I.A.No.D.123226)  for  clarification/interpretation of  

this  Court’s  order  dated  21.04.2009  passed  in  

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SLP(c) No.13915 of 2008.  

2) This  application  was  listed  for  appropriate  

orders on 01.07.2014. This Court directed issuance  

of notice to the respondents. They were served and  

duly represented through counsel.

3) On 09.10.2015, this Court requested Mr. D.N.  

Goburdhun, Advocate, who was present in Court, to  

assist the petitioner-in-person.

4) We  heard  Mr.  D.N.  Goburdhan,  learned  

counsel  for  the  applicant/petitioner  and Mr.  D.K.  

Thakur and Mr. Uma Datta learned counsel for the  

respondents.

5) In order to appreciate the issue involved in this  

application,  it is necessary to set out the relevant  

facts in brief infra.

6) On  29.08.1966,  Smt.  Satyawati-the  

predecessor-in-interest  and  wife  of  the  applicant  

herein, purchased a plot admeasuring 96 sq. yds.  

contained in Khasra No. 526/508/340 situated at  

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Mauza Shahdhawa, Sarai Rohilla, New Delhi for a  

consideration of Rs.4000/- through a registered sale  

deed from one Shri Nakul Dev.  The said vendor had  

also  assigned  on  14.10.1966  the  right  to  recover  

damages  because  it  was  noticed  that  the  

predecessor-in-interest  of  the  respondents  herein  

had encroached a portion of the said land and had  

also illegally constructed a room thereon.   

7) On 20.10.1966, the applicant’s wife instituted  

a suit being Suit No. 278 of 1966 in the Court of  

sub-Judge, Ist class, Delhi against the predecessor-

in-interest of the respondents herein for possession  

of  an area measuring 14’x9’  and damages for  the  

period 29.08.1964 to 28.08.1966 @ Rs.200/- p.m.

8) By  judgment/decree  dated  10.11.1967,  the  

Trial Court dismissed the said suit.   

9) Being aggrieved by the said judgment/decree,  

the wife of the applicant filed an appeal before the  

Additional  District  Judge,  Delhi.   The  Additional  

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District Judge, by order dated 07.06.1972, allowed  

the appeal and decreed the suit of the applicant for  

recovery of possession of the land and an amount of  

Rs.500/- towards the claim of mesne profits.

10) Questioning  the  said  order,  the  respondents  

filed second appeal being RSA No. 78 of 1972 before  

the High Court of Delhi.  The learned Single Judge  

of the High Court,  by judgment dated 26.05.1975,  

allowed the same and set aside the judgments and  

decrees of both the courts below and remanded the  

matter to the Trial  Court for determination in the  

light of the observations made in the judgment.    

11) After remand, the Trial Court, by its judgment  

and  decree  dated  20.10.1981,  again  decreed  the  

suit in favour of the applicant for recovery of vacant  

possession  of  the  disputed  land  and  awarded  

damages/mesne profits @ Rs.100/- p.m. from the  

date of filing of the suit till realization/recovery with  

costs.

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12) The respondent, felt aggrieved, filed an appeal  

being  Appeal  No.  135  of  1981.   The  Additional  

District  Judge,  by  judgment  and  decree  dated  

13.12.1984,  allowed  the  same  and  dismissed  the  

suit of the applicant herein.  

13) Being aggrieved, the applicant filed an appeal  

being R.S.A. No. 41 of 1985 before the High Court.  

By  order  dated  03.02.1988,  the  learned  Single  

Judge  of  the  High  Court  allowed  the  same  and  

decreed the suit and granted one month’s time to  

the respondents to remove the room or any other  

encroachment  on  the  suit  land.   A  decree  for  

Rs.500/- was also passed along with interest @ 6%  

p.a. from the date of  institution of  the suit  up to  

realization and further directed to make an enquiry  

under  Order  XX  Rule  12  of  C.P.C.  regarding  

determination  of  mesne  profits  from  the  date  of  

institution of the suit till delivery of possession.

14) In  pursuance  of  the  order  dated  03.02.1988  

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passed  by  the  High  Court,  the  question  of  

determination of the mesne profits came up before  

the Court of Civil Judge.  The Civil Judge, Delhi by  

order  dated  24.02.2001  in  Suit  No.  M-136/1996  

fixed  mesne  profits  as  Rs.200/-  p.m.  from  

20.10.1966 and the damages were enhanced 25% of  

the existing rate w.e.f. 20.10.1966 after every three  

years.   The  mesne  profits  were  decreed  up  to  

21.08.1990.  

15) Against  the said order,  the  respondents  filed  

an  appeal  being  R.C.A.  No.9  of  2001  before  the  

A.D.J.  Delhi.   By  order  dated  04.01.2003,  the  

appellate Court disposed of the appeal and directed  

the appellants therein (respondents herein) to pay  

mesne  profits  to  the  applicant  herein  @  Rs.30/-  

p.m. with 10% increase every three years from the  

date  of  filing of  suit  till  21.08.1990 together  with  

interest @ 12% at the amount accruing due month  

after month.  It was also held that the Trial Court  

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committed an error in determining mesne profits for  

the  entire  land  whereas  the  disputed  land  was  a  

piece  of  land  measuring  14’x9’  only  and  not  the  

entire land.   

16) Being aggrieved, the applicant filed a petition  

under  Article  227  of  the  Constitution  being  Civil  

Misc.(M) No. 135 of 2003 before the High Court of  

Delhi.  The learned Single Judge of the High Court,  

by order dated 21.11.2005, dismissed the same.

17) Challenging the said order, the applicant filed  

S.L.P.(c)  No.  6927 of  2006 before  this  Court.   By  

order  dated 05.02.2007,  this  Court  dismissed the  

same.

18) Thereafter, the applicant filed a review petition  

being R.A. No. 340 of 2007 for review of order dated  

21.11.2005 before the High Court.  By order dated  

03.01.2008,  the learned Single  Judge of  the High  

Court dismissed the same.

19) Dissatisfied with the said order, the applicant  

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had filed this S.L.P., namely, S.L.P.(c) No. 13915 of  

2008  before this Court. During the pendency of the  

petition before this Court,  possession was handed  

over to the applicant in 2009.   

20) On 21.04.2009, when the special leave petition  

was being heard,  the amicus curiae appearing on  

behalf of the applicant submitted to the Court that  

the applicant does not want to press the prayer for  

mesne profits.   Therefore,  on that  statement,  this  

Court passed an order dated 21.04.2009 recording  

that statement and accordingly closed the matter.   

21) Thereafter,  the  applicant  filed  an  application  

being  I.A.  No.  3  of  2009  before  this  Court  for  

recalling the order dated 21.04.2009 passed in the  

SLP.   However, the said application was dismissed  

by this Court on 26.04.2010.   

22) After  the  order  passed  by  this  Court,  the  

applicant filed an application being M-39/12 under  

Section  151  of  the  Civil  Procedure  Code,  1908  

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before the Civil Judge for complying with its order  

dated 24.02.2001 in Suit No. M-136 of 1996 and to  

execute the said order of mesne profits as confirmed  

by the High Court @ Rs.30 p.m. with 10% increase  

every three years from the date of filing of suit till  

21.08.1990  together  with  interest  @  12%  at  the  

amount  accruing  month  after  month.   In  that  

application, the respondents raised an objection by  

showing the order dated 21.04.2009 passed by this  

Court  recording  therein  that  the  applicant  herein  

had given up his claim of mesne profits.  On that  

basis, the Execution Petition was dismissed.

23) Against the said order, the applicant filed Civil  

Revision No. 118 of 2013 before the High Court.  On  

the basis of  the statement made by the applicant  

before this Court,  the civil  revision was dismissed  

by the High Court on 26.08.2013.   

24) Instead of challenging the said order, further  

the applicant filed an application before this Court  

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being  I.A.  D.No.123226  for  

clarification/interpretation of this Court order dated  

21.04.2009  stating  therein  inter  alia that  on  the  

date  when  the  matter  was  listed,  due  to  non-

communication  between  him  and  the  amicus  

curiae, he could not give any instruction regarding  

the  mesne  profits  to  amicus  curiae  and  the  

statement given by the amicus curiae was on his  

own and lastly, what was at best given up by the  

applicant was his right to recover mesne profits at  

the rate of Rs.170/- which were not awarded to him  

and for which the petition was filed and not what  

was already awarded to him by the Courts below i.e.  

mesne profits at the rate of Rs.30/- p.m. with 10%  

increase every three years from the date of filing of  

suit till 21.08.1990 together with interest @ 12% at  

the amount accruing due month after month.

25) On 13.02.2014, the said application was listed  

before the Registrar (J-II) for registration.  However,  

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the same was not allowed to be registered.

26) With this background facts, the applicant filed  

this application against the order dated 13.02.2014  

of the Registrar (J-II)  under Order XVIII Rule 5 of  

the Rules which was registered as I.A. No.4.

27) Mr. D.N. Goburdhan, learned Counsel for the  

applicant, has urged only one contention. According  

to  him,  the  Executing  Court  and  the  High  Court  

were  not  justified  in  dismissing  the  applicant’s  

execution  application  on  the  ground  that  the  

applicant having given up his right to recover the  

mesne profits in terms of order dated 21.04.2009 of  

this Court had no right to recover mesne profits at  

all  from the respondents. Learned counsel pointed  

out that the applicant had originally claimed mesne  

profits  at  the  rate  of  Rs.200/-  p.m.  whereas  the  

Courts below awarded only at the rate of  Rs.30/-

p.m. with 10% increase every three years from the  

date  of  filing of  suit  till  21.08.1990 together  with  

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interest @ 12% at the amount accruing due month  

after  month  and,  therefore,  the  applicant  was  

pursuing  his  claim for  the  balance,  i.e.,  Rs.170/-  

p.m. in the petition in this Court, which he gave up  

in  the  order  dated  21.04.2009.   Learned  counsel  

submitted that the claim therefore which was given  

up in this Court was the claim in relation to mesne  

profits for the balance amount, i.e., Rs.170/- p.m.  

which  was  not  awarded  by  the  Courts  below.  

Learned counsel submitted that there was therefore  

no justification on the part of the courts below to  

dismiss  the  applicant’s  execution  application  to  

recover mesne profits already awarded by the courts  

below at the rate of Rs.30/- p.m. with 10% increase  

every three years from the date of filing of suit till  

21.08.1990  together  with  interest  @  12%  at  the  

amount accruing due month after month from the  

respondents  by  placing  reliance  on  order  dated  

21.04.2009.   Learned  counsel,  therefore,  prayed  

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that  this  Court  may  clarify  the  order  dated  

21.04.2009  to  this  extent  so  as  to  enable  the  

applicant to recover the mesne profits at the rate of  

Rs.30/- p.m. with 10% increase every three years  

from  the  date  of  filing  of  suit  till  21.08.1990  

together  with  interest  @  12%  at  the  amount  

accruing  due  month  after  month  from  the  

respondents.

28) Learned counsel for the respondents supported  

the  order  made  in  the  execution  application  and  

prayed  for  dismissal  of  the  application  under  

consideration.

29) Having heard learned counsel  for  the parties  

and on perusal  of  the  record of  the  case,  we are  

inclined  to  allow  the  application  under  

consideration.

30) The  order  dated  21.04.2009  passed  by  this  

Court,  which  was  made  basis  by  the  two  courts  

below,  for  dismissal  of  the  applicant’s  execution  

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application reads as under:  

“The  learned  senior  counsel  appearing  on  behalf of the petitioner informed that in pursuance  of the order dated 03.02.2009 passed by this Court  for  execution  of  the  decree  obtained  by  the  petitioner,  with  police  help  the  petitioner  has  obtained the possession of the property.

Learned  senior  counsel  further  submitted  that  there  was considerable  difficulty  in  obtaining  the  possession  of  the  property  and  the  petitioner  had to ultimately obtain possession by demolishing  the wall that had been put up by the respondent in a  portion of the Galli (Lane) which was situated to the  West of the property belonging to the petitioner.

Learned  counsel  for  the  respondent  stated  that  though  the  property  of  the  respondent  was  situated to the South of petitioner’s property,  the  respondent  was  also  in  occupation  of  a  triangular  portion of the land to the West of the petitioner’s  property. Learned Senior Counsel appearing for the  petitioner  pointed  out  that  it  could  not  be  the  position, as the western boundary of the petitioner’s  property  is  clearly  shown  as  a  Galli  and  not  defendant’s property.

In  view  of  the  delivery  of  possession  and  clearance  on  the  western  side,  the  petitioner  will  report  full  satisfaction  of  the  decree  before  the  Executing Court.

The learned counsel for the petitioner states  that the petitioner does not want to press the prayer  for  mesne  profits.  Therefore,  this  special  leave  petition  is  closed  as  no  longer  surviving  for  consideration.”  

   (emphasis supplied)

31) As rightly urged by the learned counsel for the  

applicant,  the  question  before  this  Court  was  

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whether the applicant was entitled to claim mesne  

profits  at  the  rate  of  Rs.200/-  p.m.   Since  the  

applicant was already awarded mesne profits at the  

rate of Rs.30/- p.m. with 10% increase every three  

years from the date of filing of suit till 21.08.1990  

together  with  interest  @  12%  at  the  amount  

accruing  due  month  after  month,  which  was  not  

under challenge at the instance of respondents and  

hence the question was whether the applicant was  

entitled  to  claim  mesne  profits  for  the  balance  

amount, i.e. Rs.170/- p.m. from the respondents.

32) It is this claim, i.e., Rs. 170/- p.m., which was  

given  up  by  the  applicant  that  being  the  subject  

matter of the petition which this Court recorded and  

accordingly disposed of the applicant’s  petition by  

order dated 21.04.2009.   

33) In our opinion, the order of this Court dated  

21.04.2004 could not have been construed so as to  

deprive the applicant to claim mesne profits at the  

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rate of Rs.30/- p.m. with 10% increase every three  

years from the date of filing of suit till 21.08.1990  

together  with  interest  @  12%  at  the  amount  

accruing  due  month  after  month  from  the  

respondent.  Indeed, this claim which was already  

adjudicated  in  applicant’s  favour  by  the  Courts  

below  and  which  was  neither  challenged  by  the  

respondents and nor  was it  the subject matter  of  

dispute in applicant’s petition, the same could not  

be held to have been given up by the applicant by  

order dated 21.04.2009.   

34) It is a settled principle of law that only those  

issues could be given up by the party which are the  

subject matter of the lis before the Court.  Since in  

the petition before this Court, the issue with regard  

to award of mesne profits at the rate of 30/- p.m.  

was not the subject matter at the instance of any  

party to the lis, the question of its giving up at the  

instance of the applicant did not arise.  The order  

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dated 21.04.2009, in our view, has to be interpreted  

keeping in view these background facts.  

35) In the light of foregoing discussion, it is hereby  

clarified that  the applicant’s  right  to claim mesne  

profits Rs.30/- p.m. with 10% increase every three  

years from the date of filing of suit till 21.08.1990  

together  with  interest  @  12%  at  the  amount  

accruing  due  month  after  month  from  the  

respondents,  which  has  already  been  determined  

and awarded to the applicant and which was not  

the  subject  matter  of  the  petition  in  this  Court  

would  remain  intact  for  recovery  from  the  

respondents and is not affected in any manner by  

order dated 21.04.2009. In other words, it was not  

given up.  

36) I.A.  No.  4  thus  stands  allowed.   The  order  

dated  21.04.2009  passed  by  this  Court  is  

accordingly clarified.  

37) The Executing Court is, therefore, directed to  

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take  up the  applicant’s  execution application  and  

decide the same in accordance with law in the light  

of clarification made hereinabove of the order dated  

21.04.2009.

38) Before  parting,  we  place  on  record  our  

appreciation  to  Mr.  D.N.  Goburdhan,  Advocate,  

who, on our request, assisted the applicant.   

               ………...................................J.

      [J. CHELAMESWAR]             

.....……..................................J. [ABHAY  MANOHAR  SAPRE]

New Delhi; October 16, 2015.     

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