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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 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. 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 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. I.A. No. 4 thus stands allowed. The order dated 21.04.2009 passed bythis Court is accordingly clarified.The Executing Court is, therefore, directed to 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.

    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 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  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 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.
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 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  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  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 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    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,  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 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 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
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 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 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  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  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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