(1.) This appeal, subject to what is stated below, must be dismissed. Before we go into the facts, giving rise to this appeal, it might be convenient to dispose of one small point at the outset. The suit, out of which this appeal has arisen, was one for ascertainment of mesne profits. How the claim for mesne profits arose will be detailed below. It appears that, as against defendant 5, who represents the well-known Syedpur Trust Estate of the Khulna Collectorate, after the decree had been had in the primary Court, the matter in dispute between the plaintiffs and defendant 5 was settled. That being so, the present appellant has no-cause of action of any description against respondent 10, who was defendant 5 in. the trial Court. The appeal against respondent 10 will therefore stand dismissed with costs.
(2.) It appears that some time in 1902, the predecessor of the present plaintiffs instituted an action for recovery of possession of certain lands and for some mesne profits. This litigation continued from 1902 down to 29 April 1921. The plaintiffs had to undergo various vicissitudes of fortune during this prolonged period, but, at length, on 29 April 1921, they were successful in recovering judgment for possession of the lands in suit. The decree, which they got, was however silent on the question of mesne profits.
(3.) Some time in 1922, the plaintiffs, or rather their predecessors, obtained possession of the lands in respect of which the decree had been made in their favour. They, thereafter, instituted the suit, out of which this appeal has arisen, on 29 May 1924, for ascertainment and recovery of mesne profits for the year 1328 B. S., that is, for the period from 14 April 1921 to 13 April 1922. The defendants resisted the claim of the plaintiffs for recovery of mesne profits, and one of the points taken by them, in their written statement, was that the present suit for mesne profits was barred by the doctrine of res judicata, there having been a claim for mesne profits included in the reliefs prayed for in the original suit and which claim had not been adjudicated upon. Upon that state of things, an issue was joined between the parties, being issue 3 in the trial Court. The trial Court held that, in the circumstances which have happened, and having regard to the provisions of the present law on the subject, the claim for mesne profits was not barred by the doctrine of res judicata. Various other points were discussed and, in the result, the trial Court gave a decree for mesne profits to the plaintiffs as prayed for. The matter was then taken, on appeal, by the defendants to the lower appellate Court. It does not appear from the points summarried in the judgment of the lower appellate Court, and which apparently were the only ones canvassed before the lower appellate Court, that any contention that the claim for mesne profits was barred by res judicata was specifically raised before the lower appellate Court. There is however a reference In a solitary passage in the judgment of the lower appellate Court, which, by implication, can be held to cover this point. But, be that as it may, this is the main point which has bean taken by the appellants (the defendants having lost the appeal in the lower appellate Court) before us.