RAPTAKOS BRETT AND COMPANY LTD Vs. GANESH PROPERTY

JUDGEMENT

(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."