JUDGMENT Khundkar, J. - This is a suit for the recovery of possession of premises 56/1, Canning Street, and for mesne profits and damages. These premises are said to appertain to an estate of which the plaintiff and defendant 2 are trustees. It should be stated here that in the present action defendant 2 is siding with the plaintiff. By an indenture of lease dated 6th May 1932, these premises were demised by the plaintiff and defendant 2 to the first defend ant with retrospective effect from 1st September 1931, at a monthly rental of RS. 1500 inclusive of occupier's share of taxes. 2. The lease expired on 31st August 1938. Prior to that date and also afterwards some correspondence passed between the attorneys of defendant 1 and the attorneys of the plaintiff and the attorneys of defendant 2. The purport of the letters written by the attorneys of defendant 1 was that their client, defendant 1, was not in a position to give vacant possession to the lessors on the expiry of the lease, but was ready to call upon certain subtenants who were in actual occupation of the premises to attorn to the lessors. Reference may particularly be made to the letter of defendant 1's attorneys to the attorneys of defendant 2 dated 2nd September 1938, which contains the following sentence : 3. "It was known to the Trustees that the property having been let out to various tenants with their knowledge out client could not make over vacant possession of the same and he would have delivered possession to the trustees by attorning tenants in their favour." 4. It would appear from the correspondence referred to that although the plaintiff would seem at one time to have been not unwilling to accept such possession as defendant 1 was in a position to give, defendant 2 insisted upon delivery of vacant possession: vide letter of Messrs. N. C. Mandal & Co. dated 31st August 1938 to Messrs. Kar Mehta & Co. and the letter of Messrs Mullick & Palit dated 1st September 1938 to Messrs. Kar Mehta & Co. 5. On 5th September 1938, the position taken up by the plaintiff in regard to the question of delivery of possession was made abundantly clear by a letter of that date addressed on his behalf by Messrs. N. C. Mandal & Co., to Messrs. Kar Mehta & Co. Kar Mehta & Co. 5. On 5th September 1938, the position taken up by the plaintiff in regard to the question of delivery of possession was made abundantly clear by a letter of that date addressed on his behalf by Messrs. N. C. Mandal & Co., to Messrs. Kar Mehta & Co. Messrs Kar Mehta & Co. Re. 56/1, Canning Street, Dear Sirs, We have seen our client with reference to your letter of the 1st instant. Your client in concert and conspiracy with Babu Lakhi Narain Khettry is trying to make unlawful gain by holding over possession of the premises as he is now actually realising Rs. 2,000 per month from there. If your client's intention is bona fide he can make over to Lakhi Narain Khettry letters of attornment addressed to the tenants directing them to pay their rents from the 1st September 1938 to Lakhi Narain Khettri. Our client has no objection to this course provided you send as copies of these letters of attornment. There is no necessity of both the trustees going over at the premises and taking symbolical possession. We have again to inform you that no one is authorised on behalf of oar client to receive any payment from your client and if he makes any payment in spite of this he will do so at his own risk. Yours faithfully Sd. N. C. Mandal & Co. 6. On 8th September 1938, the attorneys of defendant 2 wrote to the attorneys of defendant 1 in the following terms: Messers Kar Mehta & Co. Re. 56/1, Canning Street, Dear Sirs, With reference to your letter to us of the 2nd and the 7th instant, we should like to know the time within which your client can give vacant possession of the premises. Our client does not agree with his co-trustee to take upon the burden of collecting rents from different tenants of the premises. Yours faithfully, Sd. Mullick & Palit. 7. The matter rested there until 7th November 1938, when the present suit was filed and an interim Receiver appointed. Meanwhile, during the period between 31st August, when the lease expired, and 10th November, when the Receiver took possession, defendant 1 had collected certain rents from the sub-tenants who were in occupation of the premises. The order appointing the Receiver was made final on 16th November 1938. Meanwhile, during the period between 31st August, when the lease expired, and 10th November, when the Receiver took possession, defendant 1 had collected certain rents from the sub-tenants who were in occupation of the premises. The order appointing the Receiver was made final on 16th November 1938. In paragraphs 8,9 and 10 of his written statement, the defendant 1 admits that after the expiry of the lease he realised various sums on account of rent from the subtenants amounting to Rs. 1852. He claims to be entitled to deduct a sum of Rs. 296-3-6 from this sum on account of charges for establishment, maintenance and electricity, and further to set off against plaintiff's claim a sum of Rs. 385 which he was unable to realise from two sub-tenants on account of arrears of rent accrued due to this defendant prior to the expiry of the lease. He expressed readiness to pay over the balance of the amount collected by him. With reference to the written statement of this defendant, a good deal, in my opinion, turns upon paragraph 12, which is thus expressed : (12) This defendant states that the plaintiff's claim as against this defendant is false and vexatious to the knowledge of the plaintiff. This defendant claims payment to him by the plaintiff of costs by way of compensation. This defendant states that this suit has been instituted to harass this defendant and should be dismissed with costs. 8. It is to be noted that, although defendant 1 was not disputing the fact that his tenancy had come to an end on 31st August, when his lease expired, he was insisting when he filed his written statement that the suit of the plaintiff, in which delivery of possession was clearly asked for, should be dismissed. Another fact of considerable significance is that this defendant has never denied that he went on realising rents from the sub-tenants right up to the time when the Receiver was appointed. The facts stated above are admitted, and I think they are the only facts which need be considered for the purposes of this suit, which really turns upon questions of law. The facts stated above are admitted, and I think they are the only facts which need be considered for the purposes of this suit, which really turns upon questions of law. The case for the plaintiff, briefly stated, is that defendant 1 was liable to deliver vacant possession of the premises when the lease expired; that his offer to give what is called symbolic possession by asking the subtenants to attorn to the lessors was not in law a sufficient discharge of this liability; that his profession of willingness to surrender possession is belied by his conduct in continuing to collect rents from the subtenants after 31st August; that by collecting rents in this way, the defendant 1 committed overt acts of trespass; that the plaintiff was compelled to ask for the appointment of a Receiver in order to prevent defendant 1 from prolonging his trespass and from continuing to intercept the rents payable by the subtenants; that defendant 1 is liable to compensate the lessors for any loss of profit to them which arose out of defendant's conduct between 31st August and 10th November, and also out of the circumstance that the Receiver has been in possession since the last-mentioned date. 9. The case for defendant 1 is as follows: Defendant 1 was not bound to deliver vacant possession to the lessors on expiry of the lease. In any event, owing to the willingness of the plaintiff to accept possession in the shape of an attornment by the tenants all that the defendant was liable to do was to get the tenants to attorn to the lessors. This he had offered to do, and it was through no fault of his, but because the lessors had disagreed between themselves, that the attornment was not made. The lessors not having taken possession in the manner in which the plaintiff was willing to accept it and in which it was offered, defendant 1 was within his rights in continuing to collect rents from the sub-tenants, and he had to do this in order to protect himself against any demand by the lessors from him for rent for the period which followed the expiry of the lease. In any event, even if he was a trespasser after the lease expired, he ceased to be a trespasser when the Receiver was appointed. In any event, even if he was a trespasser after the lease expired, he ceased to be a trespasser when the Receiver was appointed. The possession of the Receiver having terminated the possession of defendant 1 cannot be liable for anything after the Receiver came into possession. The Receiver having been appointed at the instance of the plaintiff, it is the latter who must bear the costs arising out of and following upon the Receiver's appointment. If defendant 1 is held liable for these, such costs are not mesne profits, nor can they be awarded as damages. At best they are costs incidental to the litigation, and, assuming the first defendant to be liable for these, they must be ascertained, not by the Court but by the Taxing Officer. 10. The plaintiff is asking for mesne profits and for damages against defendant 1 for the period commencing on 1st September 1938, that is, upon expiry of the lease until possession is decreed and the Receiver discharged. It is suggested on his behalf that he should be allowed to recover for this period at the rate of Rs. 1500 P.M., and that credit should be given to defendant 1 for the, total of the nett realisation by the Receiver, that is, his total realisation less costs, charges and commission, during the period in which the latter has been in possession, that is to say from the 10th November 1938. As regards this period, the plaintiff asks to be allowed to take whatever the Receiver may have collected less the latter's costs, charges and commission. But he is anxious to secure a nett payment of Rs. 1500 P. M. As the Receiver's nett collections would be below that figure, he. claims to be entitled to recover the difference from defendant 1. Regard being had to the actual rentals paid by the tenants in occupation to the Receiver, I am told that the said difference would be approximately equal to the Receiver's costs, charges and commission. It is thus apparent that as regards the period during which the Receiver has been in possession, what the plaintiff is seeking to recover from defendant 1 actually is what it has cost to keep the Receiver in possession, in addition to damages at the rate of Rs. 1500 per month. 11. It is thus apparent that as regards the period during which the Receiver has been in possession, what the plaintiff is seeking to recover from defendant 1 actually is what it has cost to keep the Receiver in possession, in addition to damages at the rate of Rs. 1500 per month. 11. As regards the interval between the 1st September 1938, the date following that on which the lease expired, and 10th November 1938 when the Receiver took possession, defendant 1, as already stated above, admits his liability to pay what he collected from the tenants, which, according to him, amounted to Rs. 1852 less a sum of Rs. 396-3-6, being charges for establishment, electricity and maintenance, less a sum of Rs. 385 being rentals which he did not succeed in collecting from two of the tenants, and which had accrued due during the currency of the lease. I shall return to these questions later. The issues framed in the case are as follows : (1) Was defendant 1 ready and willing to deliver over possession to the trustees ? (2) Is defendant 1 entitled to a set-off as claimed in the written statement ? (3) Up to what period is the plaintiff entitled to mesne profits? To what damages is the plaintiff entitled? 12. Mr. A. C. Mitra, who appeared for defendant 1, advanced the proposition that a lessee would be under no obligation to deliver vacant possession upon expiry of the lease, if the sub-tenants in actual occupation at that time were persons who had been inducted into their tenancies by the lessor prior to the commencement of the lease. Mr. Mitra stated that he desired to call evidence to show that, in the present case, some of the sub-tenants, who were in occupation on 1st September 1938, were there as early as 1st September 1931, on which date the lease had taken effect The allegation that the lessee had taken from the lessors, not a vacant house, but one in which there were tenants, is contrary to the plain tenor of the lease, and the point was not pleaded. To have allowed evidence to be called to substantiate such a statement without pro per notice to the plaintiff would have been manifestly unfair. I intimated to Mr. To have allowed evidence to be called to substantiate such a statement without pro per notice to the plaintiff would have been manifestly unfair. I intimated to Mr. Mitra that I was prepared to adjourn the hearing in order to allow him to amend his client's written statement by pleading this circumstance, but Mr. Mitra was not willing to make the amendment. This being so, I had to refuse to allow defendant 1 to call evidence to prove that the premises demised to him were not vacant premises. The plaintiff would have been embarrassed if called upon to meet such evidence without being informed in advance that a defence of this kind would be raised. In my opinion, a| lessor in the plaintiffs position would be entitled to ask for a disclosure regarding the names, and perhaps certain other particulars, of the alleged tenants whom he is said to have brought into the premises prior to the commencement of the lease, and in the present case defendant 1's refusal to amend his written statement deprives the plaintiff of notice and also of opportunity for asking for necessary particulars. 13. During argument, it was conceded by Mr. Mitra that this lease has to be construed as one which requires the tenant to surrender vacant possession on the termination thereof. His argument was that the plaintiffs willingness to accept letters of attornment from the sub-tenants in lieu of vacant possession materially altered the position regarding defendant 1's liability to deliver vacant possession. After the plaintiff had intimated that he was willing to accept delivery of possession in the form of an attornment by the sub-tenants, defendant 1 could not, in law, be called upon to do anything more than procure such attornment. The obduracy of defendant 2 in insisting upon vacant possession frustrated such a course. Defendant 1 had therefore to continue to remain in possession of the demised premises. It was the conduct of his lessors which put him into that position, which was therefore that of a tenant holding over, and not that of a trespasser. 14. The argument is ingenious, but the fallacy at the root of it consists of stating that the act of the plaintiff in expressing his readiness to accept attornment by the subtenants extinguished the liability of defendant 1 to deliver vacant possession. 14. The argument is ingenious, but the fallacy at the root of it consists of stating that the act of the plaintiff in expressing his readiness to accept attornment by the subtenants extinguished the liability of defendant 1 to deliver vacant possession. Such a liability could no doubt be extinguished through the operation of estoppel or of acts amounting to waiver or acquiescence. Apart from the circumstance that neither estoppel nor waiver nor acquiescence have been pleaded, I fail to see how they could arise on the facts proved or admitted, Mr. Mitra did not in fact invoke estoppel. As regards waiver or acquiescence the necessary consensus is wanting. The lessors were trustees of an estate to which the demised premises appertain. It was the estate, acting through the trustees, that was the real lessor. If it is assumed, as it must be, that in relation to the lease with which we are concerned, the trustees' powers were joint, then no act performed by one trustee in respect to it without the consent of the other, could bind the estate. An act which might amount to waiver or acquiescence by the plaintiff when performed in his individual capacity could not, when done by him as trustee, bind the trust estate unless it had the concurrence of his co-trustee. The right of the trustee lessors to recover vacant possession was not renounced by the willingness of only one of them to take delivery of possession in some other mode. The liability of defendant 1 to deliver vacant possession remained, and it has never been discharged. It follows that, as from 1st September 1938, defendant 1 became a trespasser. In support of his contention that defendant 1 was not liable for mesne profits after the expiry of the lease, Mr. Mitra relied on a passage in the judgment in 34 C. L. J. 415 Sashikanta v. Sarat Chandra ('21) 8 A. I. R. 1921 Cal 699 : 70 I. C. 6 : 34 C.L.J. 415 at page 428: It may be conceded that, as ruled in (1839) 9 A. & E. 849 Ibbs-v.-Richardson (1839) 9 A. & E. 849 : 8 L. J.(N. S.) Q. B. 126 at p. 853, in no case can the plaintiff claim mesne profits for any period subsequent to an offer by the defendant to restore him possession. 15. 15. That this sentence standing by itself is an incomplete statement of the law is manifest from the words which immediately follow it: 16. "But the subordinate Judge has found that there was no genuine offer to restore the plaintiff to possession and no actual withdrawal by the defendant." 17. In the present case it is not possible to say that there was any genuine offer by defendant i to restore the plaintiff to possession, because on the plain language of the lease the possession to which the lessors were to be restored was vacant possession. 18. Mr. Mitra next argued that the character of defendant 1's possession, after the expiry of the lease, has to be determined in the light of two circumstances. The first is that the plaintiff's readiness, co-incident with defendant 2's unwillingness, to take an attornment from the sub-tenants misled defendant 1 into thinking that he was entitled to hold over; and the second is that he had to continue collecting rents from the sub-tenants to protect himself against future claims by the lessors which he might have been held liable to satisfy. To use, what I think were Mr. Mitra's own words, defendant 1's possession after 31st August 1938, was not trespass "because it was not contumacious." No authority has been cited in support of this proposition, which, in my opinion, will not bear scrutiny. What amounts to a civil trespass is well-known, and ordinarily ignorance in regard to one's legal liability, or the fact that one acted from motives of prudence and foresight cannot afford a defence. I do not think it can be seriously contended that such an invasion of a landlord's rights as took place here is a wrong to which the doctrine "actus non facit reum, nisi mens sit rea" can ever apply. 19. Had no overt act of trespass been committed by defendant 1 in the interval between 31at August and 10th November when the Receiver took possession, the trustees-lessors would have been free to make their own arrangements, if so advised, with the tenants who were in actual occupation of the premises. But defendant 1 intervened, treating the tenants as his tenants and himself collecting the rents payable by them. It would clearly be not right in these circumstances to say that the plaintiff is entitled to recover something not amounting to mesne profits for this period. But defendant 1 intervened, treating the tenants as his tenants and himself collecting the rents payable by them. It would clearly be not right in these circumstances to say that the plaintiff is entitled to recover something not amounting to mesne profits for this period. A fair rate would be Rs. 1500 per month which is the figure of the monthly rental originally payable under the lease. I am told the Receiver has made some collections in respect of the period prior to 10th November, and defendant 1 must therefore be given credit for the amount so collected, whatever it may be. In this view of the matter the proposals embodied in paras. 8 to 10 of defendant 1's written statement cannot be entertained. 20. The next point taken by Mr. Mitra was that, whatever might be defendant 1's liability in respect of the period which intervened between the expiry of the lease and the appointment of the Receiver, that liability ceased upon possession being taken by the Receiver. The Receiver ousted defendant 1 from possession and so terminated the latter's trespass, if trespass it was. The Receiver was appointed at the instance of the plaintiff, and, thereafter held possession for the benefit of the plaintiff. Put in this way, the argument cannot possibly prevail. It is well settled that a Receiver does not hold for the benefit only of the party at whose instance he is appointed. The Receiver is an officer of the Court, and though he holds for the ultimate benefit of the parties to the suit, the property, when it comes into his possession, becomes "in custodia legis." The true position of a Receiver who enters upon possession under an order of the Court, has been repeatedly expounded, and a reference to authority leaves the question in no manner of doubt. In 11 Cal. 496 Kartick Nath v. Padmanund ('85) 11 Cal. 496 at p. 498, Tottenham and Ghose JJ. said: 21. "The appointment of a Receiver is not, we think, the same thing as the cancelment of a lease, or the ejectment of a lease-holder. As pointed out by the learned counsel on the other side, the possession of the Receiver is not adverse to the leaseholder, and could not be pleaded against him in any question of limitation. The possession of the Receiver is for the benefit of the parties to the suit." 22. As pointed out by the learned counsel on the other side, the possession of the Receiver is not adverse to the leaseholder, and could not be pleaded against him in any question of limitation. The possession of the Receiver is for the benefit of the parties to the suit." 22. In 7 I.C. 75 Tohra Bibi v. Zabeda Khatoon ('10) 7 I. C. 75 (Cal.) the object for which a Receiver is appointed is stated in the following words: .......that object is to protect the State from unnecessary and expensive litigation; to preserve it for the equal benefit of those equally interested in its distribution and to keep the property at all times within the control of the Court by which the Receiver had been appointed. 23. In 37 cal 754 Harihar Mukerji v. Harendra Nath (10) 37 Cal. 754: 6 I. C. 416, Mookerjee and Carnduff JJ. made the following observations: It is well settled that a Receiver by his appointment does not become the representative of the parties, but is an officer and representative of the Court which appoints him. The effect of the appointment of a Receiver is to bring the subject matter of the litigation in custodia legis, and the Court can effectively manage the property only through its officer, who is the Receiver. In other words, the Receiver ordinarily is not the representative or agent of either party in the administration of the trust, but his appointment is for the benefit of all parties, and he holds the property for the benefit of those ultimately found to be the rightful owners...... 24. The actual position of a Receiver in possession of property which is the subject of litigation was again explained by Mookherjee J. in the case in 39 C. L. J. 40 Dwijendra Narayan v. Jogesh Chandra ('24) 11 A. I. R. 1924 Cal. 600 : 79 I. C. 520 : 39 C. L. J. 40 at p. 57, in the following words: 25. "When the Court has appointed a Receiver and the Receiver is in possession, his possession is the possession of the Court, and the possession of the Court by its Receiver is the possession of all parties to the action according to their titles: (1863) 13 It. Ch. R. 456 Re Butler (1863) 13 Ir. Ch. R. 456, (1862) 31 Beav 429 Bertrand v. Davies (1862) 31 Beav. Ch. R. 456 Re Butler (1863) 13 Ir. Ch. R. 456, (1862) 31 Beav 429 Bertrand v. Davies (1862) 31 Beav. 429, (1890) 26 L. R. Ir. 375 Moir v. Blacker (1890) 26 L. R. Ir. 375 and (1911) 2 Ch. 223 In re Ind. Coope & Co. (1911) 2 Ch. 223 : 80 L. J. Ch. 661:105 L. T. 356. The property passes into legal custody as the Receiver is in the position of stake-holder, and such custody is for the benefit of the true owner.... 23 C.L.J. 283 Brojendra Kishore v. Abdul Rasae ('10) 3 A. I. R. 1916 Cal. 751: 31 I. C. 242 : 22 C. L. J. 283, 30 Mad. 12 Ramaswamy v. Muttaswamy ('07) 80 Mad. 12, 9 I. A. 99 Rao Karan v. Rajah Baker Ali ('83) 5 All. 1:9 I.A. 99:4 Sar. 382 (P.C.) and 34 Cal. 305 Jagat Tarini v. Naba Gopal ('07) 34 Cal. 305. " 26. It is clear from the foregoing enunciations of the law that the ousting of defendant 1 from possession, even if it operated to terminate his trespass, did not have the effect of passing possession to the plaintiff inasmuch as the Receiver could in no sense be regarded as the plaintiff's agent. Mr. Mitra then contended that any loss of which the plaintiff might complain, as incident to and arising out of the period during which the Receiver was in possession, could not be claimed as mesne profits, because such loss would not answer the definition of mesne profits in S. 2 (12) Civil P. C. That definition is in the following terms: 27. "Mesne profits of property means those profits which the person in wrongful possession of such property actually received or might with ordinary, diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession." 28. Mr. Mitra argued that no question of defendant 1 being in wrongful possession after 10th November, 1938 could arise, because he was not in possession at all after that date when the Receiver took possession. This point is unanswerable, and Mr. Mr. Mitra argued that no question of defendant 1 being in wrongful possession after 10th November, 1938 could arise, because he was not in possession at all after that date when the Receiver took possession. This point is unanswerable, and Mr. B. C. Ghose who appeared for the plaintiff, conceded that the compensation to which the plaintiff might be found entitled in respect of loss accruing to him from and after 10th November 1938 could not be strictly designated as "mesne profits." I accordingly permitted him to make a slight amendment of the plaint by inserting the words "and or damages" after the word "profits" in cl (b) of the prayer portion. This amendment is, in my opinion, fair, and cannot in any sense embarrass the defence, because it was known from the very inception of this litigation that the plaintiff was demanding compensation for the entire period from 31st August 1938, when the lease expired, until possession to him would be delivered. 29. But Mr. Mitra objected to a claim for damages being introduced into the plaint tiff's prayers on the ground that damages constituted a separate relief distinct from mesne profits, and there was no express provision in the Code which permitted damages to be joined with claims for delivery of possession, arrears of rent and mesne profits. He referred to O. 20, R. 12, and contended that the language of that provision indicates that when a suit is instituted for recovery of possession and arrears of sent no further relief other than mesne profits may be asked for. Order 30, Rule 12 is as follows: (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree- (a) for the possession of the property, (b) for the rent or mesne profits which have accrued on the property daring a period prior to the institution of the suit or directing an inquiry as to such rent or mesne profits, (c) directing an inquiry as to rent or mesne profits from the institution of the suit until (i) the delivery of possession to the decree-holder, (ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or (iii) the expiration of three years from the date of the decree; (2) Where an inquiry is directed under cl. (b) or cl. (b) or cl. (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry. 30. It is clear from the language of sub-r. (1) that this provision applies only where, and in so far as, a suit for recovery of possession and for rent or mesne profits has been actually filed. The provision relates to the kind of decree which may be passed in such a suit. I fail to see how it can involve any prohibition regarding additional reliefs which a plaintiff who seeks to recover possession of immovable property may wish to ask for. To accept the view suggested by Mr. Mitra would be to deny the inherent power of the Court to grant such reliefs as the nature of the case might legitimately demand, and the contention is opposed to the provisions of O. 2, R. 4 of the Code itself which is in these terms: No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except - (a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof, (b) claims for damages for breach of any contract under which the property or any part thereof is held, and (c) claims in which the relief sought is based on the same cause of action. Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property. 31. This provision has to be read with O. 2, R. 3 (see in this connexion 10 Mad. 375 Giyana v. Kandasami ('87) 10 Mad. 375 at p. 506). Order 2, R. 3 is as follows: (1) "Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly, and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit. (2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of title aggregate subject-matters at the date of instituting the suit 32. (2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of title aggregate subject-matters at the date of instituting the suit 32. In my judgment, the compensation for loss which the plaintiff claims, in respect of the period covered by the Receiver's possession may be caught up under cl. (b) of O. 2, R. 4, because it arose, in the final analysis, out of the breach of the contract to surrender vacant possession. In any event, it is within the intention of cl. (c) of R. 4 of O. 2, "claims in which the relief sought is based on the same cause of action." The relief here sought is compensation for loss occasioned by possession being held by a Receiver who had to be appointed because of defendant 1's failure to surrender possession. The failure of this defendant to deliver possession to the lessors is the principal cause of action in the present suit. The claim for the relief of damages is based on tins cause of action. 33. As regards the language of O. 20, It. 12 (1) (b) it may be observed that it has been held that a claim for mesne profits is virtually a claim for damages: 27 Cal. 951 Girish Chunder v. Shoshi (1900) 27 Cal. 951 : 27 I. A. 110 : 7 Sar. 687 (P. C.) at p. 967 and 26 C.W.N. 369 Sambhu Nath v. Satis Chandra ('21) 8 A. I. R. 1921 Cal. 363 : 66 I. C. 49 : 25 C.W.N. 369 at p. 372. It might further be noted that the Code itself in S. 144 (1) con. templates the refund of damages, compensation and mesne profits when restitution is made to the party entitled to it upon the variation or reversal of a decree. Reference may also be made to 50 Cal. 667 Sander Mall v. Ladhuram ('24) 11 A. I. R. 1924 Cal. 240 : 50 Cal. 667 : 83 I. C. 757, where a landlord was allowed to recover both mesne profits and damages. 34. In the present case the plaintiff incurred loss by reason of defendant 1's failure to restore him to possession. Between 1st September and 10th November 1938, the loss was occasioned by defendant 1 who was in wrongful possession, taking the profits of the property. 34. In the present case the plaintiff incurred loss by reason of defendant 1's failure to restore him to possession. Between 1st September and 10th November 1938, the loss was occasioned by defendant 1 who was in wrongful possession, taking the profits of the property. After 10th November it was occasioned by the costs, charges and expenses of a Receiver who had to be put in possession. But in neither case would loss have arisen at all had defendant 1 restored the lessors to possession. Its cause being the same, the essential character of the plaintiff's loss was not changed, though its technical legal definition suffered alteration after the appointment of the Receiver. A loss which started as mesne profits continued as damages, but both flowed from the wrongful act of defendant 1 in not surrendering possession. In 62 Cal. 217 Surendralal v. Sultan Ahmad ('35) 23 A. I. R. 1935 Cal. 206 : 62 Cal. 217 : 156 I. C. 489 at p. 220 it has been held by this Court that a person who obtains possession of immovable property under a decree which, at the time, was a valid decree, is not a trespasser, and is not liable for mesne profits for so long as the decree is not set aside. Upon the reversal of decree in appeal, such person would, in respect of the period prior to the reversal, be liable to the real owner for compensation or damages and not for mesne profits in the strict sense of the expression and for the period following the reversal he would, as a trespasser, be liable for mesne profits for such time as he continued to remain in possession. 35. Mr. Mitra next took the objection that a prayer for damages for the period which followed the Receiver's appointment could not be joined with a prayer for means profits for the period which preceded the Appointment, because the latter represents a loss which accrued before the filing of the suit, whereas the former did not arise until after the suit had been filed. Here again there would seem to be a good deal of authority against the argument. Here again there would seem to be a good deal of authority against the argument. It has been held that, where the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate, or that it is necessary to have the decision of the Court on the altered circumstances so as to shorten litigation, or to do complete justice between the parties, the Courts may mould the relief on the basis of the altered circumstances: 44 Cal. 47 Nuri Mian v. Ambica Singh ('17) 4 AIR 1917 Cal. 716; 44 Cal. 47 : 34 L. C. 869. 36. In 16 I.C. 734 Subba Naicken v. Rami Naicken ('12) 16 I. C. 734 (Mad.) the defendant during the pendency of a suit for a declaration of title had taken possession of the property in dispute, and it was held that the plaintiff might amend the plaint by adding a prayer for possession instead of bringing another suit: see also AIR 1930 Mad. 405 Sivaswami Iyer v. Thirumadi Chettiar ('30) 17 AIR 1930 Mad. 405 : 118 I. C. 499 at p. 410. In suits in which money was claimed, and the real cause of action arose only after the institution of the suits, it has been held that the Court should not reject the plaint and drive the plaintiff to file a fresh suit, but should pass a decree on the basis of such subsequent cause of action. A. I. R. 1918 Mad. 143 Subbaraya Chetty v. Nachiar Ammal ('18) 5 AIR 1918 Mad. 143 : 441. C. 863. This decision was followed in A. I. R. 1926 Mad. 377 (Vaddadi) Butchiraju and Others Vs. Doddi Seetharamayya and Others, AIR 1926 Mad 377 . In 60 Cal 685 Priyambada Debi v. Bholanath Basu ('33) 20 A. I. R. 1933 Cal. 534 : 60 Cal. 685 : 145 L.C. 663 at p. 687, it was held following 6 C. L. J. 103 Ramyad Sahu v. Bindeswari Kumar Upadhay ('07) 6 C. L. J. 102 that it is not only within the power, but that sometimes it is the duty of the Court to take notice of subsequent events where, if it is not so done, the Court might decide matters no longer in controversy or deliver judgment which could not be carried into effect or grant a relief which is inappropriate and ineffectual. See also 54 Bom. See also 54 Bom. 126 Hanmant Ramchandra Kulkarni vs. Secretary of State for India, AIR 1930 Bom. 254. 37. Mr. Mitra finally returned to his first contention, which was that defendant 1 was not liable to compensate the plaintiff for any loss which may have arisen after 10th November, when he went out of possession. He however put the point in a different manner. His argument was that defendant 1 did not resist delivery of possession, for which the plaintiff might have obtained a decree at any time had he chosen to bring the suit to hearing, and that in these circumstances it cannot be held that any loss accruing to the plaintiff in consequence of the Receiver's appointment, or of his continuing to remain in possession all this time, arose out of defendant 1's act or default. 38. The extent to which a tenant, who becomes a trespasser, is liable to his landlord for compensation has been frequently considered, but before I deal with this question, I would advert to a matter to which I drew attention earlier in this judgment In para. 12 of defendant 1's written statement, he describes the plaintiff's claim as false and vexatious, and asks for the dismissal of the suit. When it is realised that the main relief which the plaintiff was seeking was recovery of possession, I do not see how it can be said that this defendant did not resist delivery of possession. There was nothing to prevent him, if so minded, from confessing judgment in his written statement, at least in so far as the plaintiff's claim to be put in possession was concerned. It was his trespass that compelled the plaintiff to ask for the appointment of a Receiver, and although this defendant could at any time thereafter have applied to the Court to discharge the Receiver, and direct possession to be taken by the plaintiff, he did not do so. He has never, until the argument stage of this suit, as far as there is anything to show it, retired from the position that the plaintiffs suit should be dismissed in its entirety. He has never, until the argument stage of this suit, as far as there is anything to show it, retired from the position that the plaintiffs suit should be dismissed in its entirety. It is, therefore, reasonably clear that both the appointment of the Receiver, and his continuance in possession until the hearing of the present suit, are attributable to the conduct of this defendant Were the suit to be dismissed, as was prayed in the written statement of defendant 1, the Court would have no option but to restore the status quo, and direct the Receiver to make over possession to this defendant from whom the Receiver had taken it. The Court would also be bound to order the Receiver to account to him for all collections and realisations made by the Receiver in respect of the property. It was for such a result that defendant 1 must be deemed, by reason of his written statement, to have been holding out: On the determination of the lease, the lessee is bound to put the lessor into possession of the property. 39. This is S. 108, cl. (g), T. P. Act. In 50 Cal. 667 Sander Mall v. Ladhuram ('24) 11 A. I. R. 1924 Cal. 240 : 50 Cal. 667 : 83 I. C. 757, where there was failure by a tenant to fulfil this obligation, a claim for mesne profits and special damages for trespass was allowed. Such damages were regarded, in 25 Bom. L. R. 447 Gulam Mohiuddin Narmavala Vs. Dayabhai Chimanlal, AIR 1923 Bom 398 , as including the premium received from a sub-tenant, and in 22 Bom. 348 Baliaramgiri v. Vasudev ('98) 22 Bom. 348 as the cost of evicting a sub-tenant. In (1869) 4 Q. B. 170 Henderson v. Squire (1869) 4 Q. B. 170 : 38 L. J. Q. B. 73 : 19 L. T. 601 : 17 W. R. 519, Cookburn C. J. said: 40. "The landlord is entitled to recover all the loss he has sustained by not being put in possession of the entire premises at the end of the term." 41. Mellor J. said: There has been a breach of contract, and the damages sought to be recovered are those which necessarily flow from the breach, 42. "The landlord is entitled to recover all the loss he has sustained by not being put in possession of the entire premises at the end of the term." 41. Mellor J. said: There has been a breach of contract, and the damages sought to be recovered are those which necessarily flow from the breach, 42. Dealing in another case, with the liability of a tenant who fails to deliver possession after the expiration of a notice to quit, Cockburn C. J. said that it was not at all unreasonable but, on the contrary very salutary to hold him liable to compensate his landlord to the extent of the natural and necessary consequences of his wrongful act." (1857) 2 C. B. (N. S.)592 Bramley v. Chesterton (1857) 2. C. B. (N.S.) 592 : 27 L. J. C. P. 23 : 5 W. R. 690 at p. 605. 43. The answer to the issues in the present case are, as to 1 and 2, in the negative, and as to 3 as indicated below. In my judgment, the plaintiff is entitled to recover from defendant 1 mesne profits up to 9th November 1938, and damages thereafter, the measure of both of which is the rent which the latter was paying under the lease. It is, however, desirable that in awarding compensation the distinction should be maintained between what constitutes damages properly speaking, and what appertains to costs of litigation. The costs, charges and expenses of the Receiver are really within the latter category, and the plaintiff should be given a decree which, while it covers all reasonable compensation, keeps straight the line of division between damages and costs. I accordingly hold that the plaintiff is entitled to a decree for recovery of possession, and for a sum calculated on the basis of Rs. 1500 per month from 1st September 1938 till 9th November 1938 being mesne profits, and from 10th November 1938 till the making over of possession by the Receiver to him for a sum calculated on the same basis as damages. The plaintiff is further entitled to costs. 44. The Receiver must make over possession forthwith. Defendant 1 is entitled to credit for all sums deposited by him in Court, and for the gross collections of the Receiver during the entire period of the Receiver's possession. The plaintiff is further entitled to costs. 44. The Receiver must make over possession forthwith. Defendant 1 is entitled to credit for all sums deposited by him in Court, and for the gross collections of the Receiver during the entire period of the Receiver's possession. He will also be entitled to credit for such sums, payable by the subtenants as rent, which the Receiver may have failed to realise during the period of his possession through want of due diligence. Defendant 1 will pay all costs, charges and expenses of the Receiver which were properly incurred as a result of this litigation. I am informed by Mr. Mitra that the services of the Receiver were utilised at various times for the concerns of the trust estate other than this suit All charges referable to work done or costs incurred by the Receiver relative to any matter or proceeding which did not appertain to the dispute between the lessors and defendant 1 in the present suit will be excluded from the amount of costs for which this defendant is liable. The apportionment just indicated will be made after scrutiny of the Receiver's accounts from this, as well as from the other usual and proper points of view. The decree for possession for mesne profits and damages will be in favour of the plaintiff and defendant 2 jointly. Defendant 2 will be entitled to his own costs of the suits out of the estate as between attorney and client. The plaintiff will in the first instance be entitled to retain and pay out of the estate his own costs (as between attorney and client) of the suit, other than costs, charges and expenses of the Receiver. There will be a reference to the Registrar, or such officer as he may appoint, to enquire and report as to the gross collections of the Receiver from the date of his appointment, and as to his costs, charges and commission which are properly referable to this suit, and as to rents which he may have failed to realise. The plaintiff and defendant 2 will be entitled to jointly take all moneys now in deposit in the Court or lying in the hands of the Receiver. Defendant 1 will be entitled before the reference to inspect the books and vouchers of the Receiver.