( 1 ) A lease for a term of 21 years commencing from 16th March, 1964 and ending on 15th March, 1985 was granted by the plaintiff to the defendant in respect of ground floor of the main building at premises No. 6, Marquis street, Calcutta at a monthly rental, of Rs. 2,045/- payable according to English calendar. The lease expired by efflux of time on 15th March, 1985. The defendant failed to make over vacant possession to the plaintiff. The plaintiff accordingly on or about 8th August, 1986 filed a suit claiming recovery of khas possession and mesne profits at the rate of Rs. 200/- per day from 16th march, 1985 till recovery of possession. It would appear from a combined reading of paragraphs 2 and 3 of the plaint filed in Title Suit No. 1481 of 1986 that the claim for mesne profit was made on the basis that after expiry of lease by efflux of time on 15th' March, 1985 the defendant became a trespasser and. therefore, mesne profit was claimed. At the hearing of the suit, however, the claim for mesne profit was given up which has been recorded by the learned Trial Judge in his judgment as follows: "since the plaintiff has not pressed this issue I hold that the plaintiff is not entitled to any mesne profit for occupation of the defendant on expiry of 15th March, 1985. "

( 2 ) IT would be appropriate to notice issue No. 4 framed by the Court as regards mesne profits which reads as follows: "is the plaintiff entitled to mesne profit? If so, at what time?"

( 3 ) THE suit, it appears, was decreed on 18th April, 1991 with the following direction: "that the suit is decreed on contest against the defendant. Plaintiff is to get a decree of khas possession, of the suit premises on eviction of the defendant in view of the peculiar facts and circumstances of the case. I do not order as to costs of the suit. The judgment is pronounced in the open Court immediately after the argument is closed. "

( 4 ) THE defendant preferred an appeal which was registered as Appeal no. 253 of 1992. The plaintiff was restrained from executing the decree and the defendant was directed to make payment at the rate of Rs. 2,500/- per month on account of occupation charges. The appeal was finally dismissed by a judgment and order dated 11th August, 1997. The defendant preferred a special leave petition which was granted admitting the appeal. The appeal was dismissed by the Apex Court by a judgment and order dated 9th september, 1993. At the request of the defendant tune to vacate the premises was granted till 30th of June, 1999. It was, however, stipulated that in the event the suit premises were not vacated within the stipulated time, the judgment-debtor/appellant would be liable to pay Rs. 50,000/- per month by way of occupation charges from lst October, 1998. A further order dated 25th September, 1998 was passed to the effect as follows:

"if the appellants hand over peaceful vacant possession of the premises in question on or before 8th October, 1998 then they will have to pay for the use and occupation charges only Rs. 2,500,00/- (Rupees two thousand five hundred) 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 Rs. 50,000. 00/- (Rupees fifty thousand) only, as fixed by us earlier. Rest of the order remains as it is. "

( 5 ) IT is not in dispute that possession was thereafter made over by the defendant to the plaintiff/decree holder on 8th October, 1998.

( 6 ) THE plaintiff has thereafter filed Civil Suit No. 457 of 1998 in this court on or about 10th November, 1998 claiming mesne profits from 11th august, 1986 until 7th October, 1998. La this suit an application under Order 7 Rule 1 was filed by the defendant claiming and contending that the claim with regard to mesne profits was specifically made in the earlier Title Suit no. 1481 of 1986 which was categorically given up and, therefore, the claim. with regard to mesne profits made in C. S.

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