JUDGMENT Khundkar, J. - This is a suit for the re-recovery of possession of premises No. 56/1, Canning Street, and for mesne profit damages. These premises are said to appertain to an estate of which the Plaintiff and the second Defendant are trustees. It should be stated here that in the present action the second Defendant is siding with the Plaintiff. By an Indenture of lease dated May 6th, 1932, these premises were demised by the Plaintiff and the second Defendant to the first Defendant with retrospective effect from September 1st, 1931, at a monthly rental of Rs. 1,500 inclusive of occupier's share of taxes. The lease expired on August 31st, 1938. Prior to that date and also afterwards some correspondence passed between the attorneys of the first Defendant and the attorneys of the Plaintiff and the attorneys of the second Defendant. The purport of the letters written by the attorneys of the first Defendant was that their client, the first Defendant, 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 sub-tenants who were in actual occupation of the premises to attorn to the lessor. Reference may particularly be made to the letter of the first Defendant's attorneys to the attorneys of the second Defendant dated September 2nd, 1938, which contains the following sentence:-- It was known to the Trustees that the property having been let out to various tenants with their knowledge our client could not make over vacant possession of the same and he would have delivered possession to the Trustees attorning tenants in their favour. 2. 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 the first Defendant was in a position to give, the second Defendant 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.). 3. On September 5th, 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. Mullick & Palit dated 1st September, 1938 to Messrs. Kar, Mehta & Co.). 3. On September 5th, 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 then to pay their rents from the 1st September, 1938, to Lakhi Narain Khettry. Our client has no objection to this course provided you send us copies of these letters of attornment. There is no necessity of both the trustees going over at the premises and talking symbolical possession. We have again to inform you that no one is anthorised on behalf of our client to receive any payment from year 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. 4. On September 8th, 1938, the attorneys of the second Defendant wrote to the attorneys of the first Defendant in the following terms :-- Messrs. 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 promises. 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. 5. The matter rested there until November 7th, 1938, when the present suit was filed and an interim Receiver appointed. Meanwhile, during the period between August 31st, when the lease expired, and November 10th, when the Receiver took possession, the first Defendant had collected certain rents from the sub-tenants who were in occupation of the premises. 6. Mullick & Palit. 5. The matter rested there until November 7th, 1938, when the present suit was filed and an interim Receiver appointed. Meanwhile, during the period between August 31st, when the lease expired, and November 10th, when the Receiver took possession, the first Defendant had collected certain rents from the sub-tenants who were in occupation of the premises. 6. The order appointing the Receiver was made final on November 16th, 1938. 7. In paragraphs 8, 9 and 10 of his written statement, the first Defendant admits that after the expiry of the lease he realised various sums on account of rent from the sub-tenants amounting to Rs. 1,852. 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 the 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 the Defendant prior to the expiry of the lease. He expressed readiness to pay over the balance of the amount collected by him. 8. With reference to the written statement of this Defendant, a good deal, in my opinion, turns upon paragraph 12, which is thus expressed : 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. 9. It is to be noted that, although the first Defendant was not disputing the fact that this tenancy had come to an end on the 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. 10. 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. 11. 10. 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. 11. The case for the Plaintiff, briefly stated, is that the first Defendant 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 sub-tenants 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 sub-tenants after the 31st August; that by collecting rents in this way, the first Defendant committed overt acts of trespass, that the Plaintiff was compelled to ask for the appointment of a Receiver in order to prevent the first Defendant from prolonging his trespass and from continuing to intercept the rents payable by the sub-tenants; that the first Defendant is liable to compensate the lessor for any loss of profit to them which arose out of the Defendant's conduct between the 31st A and the 10th November, and also out of the circumstance that the Receiver has been in possession since the last-mentioned date. 12. The case for the first Defendant is as follows:-- The first Defendant was not bound to deliver vacant possession to the lessors on expiry 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 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, the first Defendant 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 my 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 the first Defendant, he cannot, be liable for anything after the Receiver into possession. The Receiver having 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 the first Defendant 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, must be ascertained, not by the Court, but by the Taxing Officer. 13. The Plaintiff is asking for mesne profits for damages against the first Defendant for the period commencing on 1st September, 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. 1,500 p.m., and that credit should be given to the first Defendant for the total of the nett realisations by the Receiver, that is, his total realisations 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 net payment of Rs. 1,500 p. m. As the Receiver's net collections would be below that figure, he claims to be entitled to recover the difference from the first Defendant. 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 the first Defendant actually is what it has cost to keep the Receiver in possession, in addition to damages at the rate of Rs. 1,500 p. m. 14. 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 the first Defendant actually is what it has cost to keep the Receiver in possession, in addition to damages at the rate of Rs. 1,500 p. m. 14. As regards the interval between the 1st September, 1938, the date following that on which the lease expired, and the 10th November, 1938, when the Receiver took possession, the first Defendant, as already stated above, admits his liability to pay what he collected from the tenants, which, according to him, amounted to Rs. 1,852, less a sum of Rs. 296-3-6, 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. 15. I shall return to these questions later. The issues framed in the case are as follows:-- 1. Was the Defendant No. 1 ready and willing to deliver over possession to the Trustees? 2. Is the Defendant No. 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? 16. Mr. A. C. Mitra, who appeared for the first Defendant, 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 the 1st September, 1938, were there as early as the 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 proper 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 proper 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 the first Defendant 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 Plaintiff's 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 the first Defendant's refusal to amend his written statement deprives the Plaintiff of notice and also of opportunity for asking for necessary particulars. 17. 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 Plaintiff's willingness to accept letters of attornment from the sub-tenants in lieu of vacant possession materially altered the position regarding the first Defendant'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 in lieu of vacant possession materially altered the position regarding the first Defendant'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, the first Defendant could not, in law, be called upon to do anything more than procure such attornment. The obduracy of the second Defendant in insisting upon vacant possession frustrated such a course. The first Defendant 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. 18. The obduracy of the second Defendant in insisting upon vacant possession frustrated such a course. The first Defendant 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. 18. 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 sub-tenants extinguished the liability of the first Defendant 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 this 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 the first Defendant to deliver vacant possession remained, and it has never been discharged. It follows that, as from the 1st September, 1938, the first Defendant became a trespasser. 19. In support of his contention that the first Defendant was not liable for mesne profits after the expiry of the lease, Mr. Moitra relied on a passage in the judgment in Raja Sashikanta Raja Sarat Chandra 34 C. L. J. 415 at p. 428 (1921). 19. In support of his contention that the first Defendant was not liable for mesne profits after the expiry of the lease, Mr. Moitra relied on a passage in the judgment in Raja Sashikanta Raja Sarat Chandra 34 C. L. J. 415 at p. 428 (1921). (1A) [1831] 9 A. & E. 849 at 853 :-- It may be conceded that, as ruled in Ibbs v. Richardson (1A), in no case can the Plaintiff mesne profits for any period subsequent to an offer by the Defendant to restore him possession. 20. That this sentence standing by itself is an incomplete statement of the law is manifest from the words which immediately follow it: But the Subordinate Judge has found that there was no genuine offer to restore the Plaintiff to session and no actual withdrawal by the Defendant. 21. In the present case it is not possible to say that there was any genuine offer by the Defendant to restore the Plaintiff to posse because on the plain language of the lease the possession to which the lessors were to be restored was vacant possession. 22. Mr. Moitra next argued that the character of the first Defendant'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 the second Defendant's unwillingness, to take an attornment from the sub-tenants misled the Defendant into thinking that he was entitled to hold over and the second is that he ha 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, the first Defendant's possession after the 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. 23. 23. Had no over-act of trespass been committed by the first Defendant in the interval between the 31st August and the 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 the first Defendant 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. 1,500 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 the 10th November, and the first Defendant must therefore be given credit for the amount so collected, whatever it may be. In this view of the matter the proposals embodied in paragraphs eight to ten of the first Defendant's written statement cannot be entertained. 24. The next point taken by Mr. Mitra was that, whatever might be the second Defendant'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 the first Defendant 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. 25. 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 legist". 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. 26. In Karticknath Pandy v. Padmanund Singh I. L. R. 11 Cal. 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. 26. In Karticknath Pandy v. Padmanund Singh I. L. R. 11 Cal. 496 at p. 498 (1885), Tottenham and Ghose, JJ., said:-- The appointment of, a receiver is not, we think, the same tiling as the concealment 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 lease-holder, 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. 27. In Tohra Bibi v. Zabeda Khatoon 7 I. C. 75 (1910) 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. 28. In Harihar Mukerji v. Harendra Nath Mukerji I. L. R. 37 Cal. 754 (1910), 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 argent of cither 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 . . . . 29. The actual position of a Receiver in possession of property which is the subject of litigation was again explained by Mookerjee, J., in the case of Dwijendra Narayan Roy v. Jogesh Chandra De 39 C. L. J. 40 at pp. . . . 29. The actual position of a Receiver in possession of property which is the subject of litigation was again explained by Mookerjee, J., in the case of Dwijendra Narayan Roy v. Jogesh Chandra De 39 C. L. J. 40 at pp. 57 (1924), in the following words:-- 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: Re Butler [1863] 13 Ir. Ch. R. 456. Bertrand v. Davies [1862] 31 Beav. 429, Moir v. Blacker [1890] 26 L. R. Ir. 375 and Re Ind. Coope & Co. [1911] 2 Ch. 223. 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 . . . . . . . Brajendra Kishore v. Abdul Razac 22 C. L. J. 283 (1915), Ramaswamy v. Muthusamy I. L. R. 30 Mad. 12 (1906), Rao Karan v. Raja Bakar Ali L. R. 9 I. A. 99 (1882) and Jagat Tarini v. Naba Gopal I. L. R. 34 Cal. 305 (1907). 30. It is clear from the foregoing enunciations of the law that the ousting of the first Defendant 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. 31. Mr. Mitra then contended that any loss of which the Plaintiff might complain, as incidental 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 sec. 2 L. R. 9 I. A. 99 (1882) of the Code of Civil Procedure. 32. That definition is in the following terms:-- 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. 33. Mr. 32. That definition is in the following terms:-- 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. 33. Mr. Mitra argued that no question of the first Defendant being in wrongful possession after the 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 the 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 the 31st August, 1938, when the lease expired, possession to him would be delivered. 34. But Mr. Mitra objected to a claim damages being introduced into the Plaintiff'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 delivery of possession, arrears of rent and mesne profits. He referred to Or. 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 rent no further relief other than mesne profits may be asked Or. He referred to Or. 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 rent no further relief other than mesne profits may be asked Or. 20, r. 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 off mesne profits which have on the property during a period prior to the institution 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 decree; whichever event first occurs, (2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry. 35. 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 Or. 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. 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. 36. This provision has to be read with Or. 2, r. 3 [see in this connection Giyana v. Kandasami I. L. R. 10 Mad 375 (1887)]. 37. Or. 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 the aggregate subject-matters at the date of instituting the suit. 38. 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 Or. 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 Or. 2, claims in which the relief sought are based on the same cause of action. The relief here sought is compensation for loss occasioned by possession being held by i. Receiver who had to be appointed because of the first Defendant'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 is based on this cause of action. 39. As regards the language of Or. 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 is based on this cause of action. 39. As regards the language of Or. 20, r. 12 (1) (b) it may be observed that it has been held that a claim for mesne profits is virtually a claim for damages: Grish Chunder v. Shoshi I. L. R. 27 Cal. 951 at p. 967 (1900) and Shambhu Nath v. Satish Chandra 25 C. W. N. 369 at p. 372 (1920). It might further be noted that the Code itself in sec. 144 (1) contemplates 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 Sundermull v. Ladhuram I. L. R. 50 Cal. 667 (1923), where a landlord was allowed to recover both mesne profits and damages. 40. In the present case, the Plaintiff incurred loss by reason of the first Defendant's failure to restore him to possession. Between the 1st September and 10th November, 1938, the loss was occasioned by the first Defendant, who was in wrongful possession, taking the profits of the property. After the 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 the first Defendant 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 the first Defendant in not surrendering possession. In Surendralal Chaudhuri v. Sultan Ahmad I. L. R. 62 Cal. 217 at p. 220 (1934), 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. 217 at p. 220 (1934), 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 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. 41. 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 mesne 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. 42. 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. Nuri Mian v. Ambica Singh I. L. R. 44 Cal. 47 (1916). 43. In Subba Naicken v. Rami Naicken 16 I. C. 734 (1912) 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 Sivaswamy Iyer Vs. Thirumudi Chettiar and Others, 118 Ind. Cas. 499 ]. 44. 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 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. Cas. 499 ]. 44. 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 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. Subbaraya Chetty v. Machiar Ammal A. I. R. [1918] Mad. 143. This decision was followed in (Vaddadi) Butchiraju and Others Vs. Doddi Seetharamayya and Others, AIR 1926 Mad 377 . 45. In Priyambada Debee v. Bholanath Basu I. L. R. 60 Cal. 685 at p. 687 (1982), it was held, following Ramyad Saint v. Bindeswari Kumar Upadhay 6 C. L. J. 102 (1907) 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 cat into effect or grant a relief which is inappropriate and ineffectual. See also Hanmant Ramchandra v. Secretary of State for India I. L. R. 54 Bom. 125 at p. 142 (1929). 46. Mr. Mitra finally returned to his first contention, which was that the Defendant No. 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, argument was that the first Defendant did resist delivery of possession, for which the Plaintiff might have obtained a decree at time had he chosen to bring the suit to heading, 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 the first Defendant's act or default. 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 paragraph 12 of the first Defendant's written statement, he describes the Plaintiff's claim as false and vexatious, and asks the dismissal of the suit. In paragraph 12 of the first Defendant's written statement, he describes the Plaintiff's claim as false and vexatious, and asks 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 it can be said that this Defendant did not delivery of possession. There was nothing to prevent him, if so minded, from confessing judgment in his written statement, at least in so 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 Plaintiff's 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 the Defendant No. 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 the first Defendant must be deemed by reason of his written statement, to have been holding out. 47. "On the determination of the lease, the lessee is bound to put the lessor into possession of the property." This is sec. 108, cl. (g) of the Transfer of Property Act. In Sundermull v. Ladhuram I. L. R. 50 Cal. 667 (1923), 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 Gulam Mohiuddin v. Dayabhai 25 Bom. 108, cl. (g) of the Transfer of Property Act. In Sundermull v. Ladhuram I. L. R. 50 Cal. 667 (1923), 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 Gulam Mohiuddin v. Dayabhai 25 Bom. L. R. 447 (1923), as including the premium received from a sub-tenant, and in Baliaramgiri v. Vasudev I. L. R. 22 Bom. 348 (1896) as the cost of evicting a sub-tenant. In Henderson v. Squire [1869] L. R. 4 Q. R. 170, Cockburn, C. J., said:-- "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". 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." 48. 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. 49. Brantley v. Chesterton [1857] 2 C. B. (N. S.) 592 at p. 605. 50. The answer to the issues in the present case are, as to J and 2, in the negative, and as to 3 as indicated below. In my judgment, the Plaintiff is entitled to recover from the first Defendant mesne profits up to the 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 he 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. 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. 1,500 per month from the 1st September, 1938, till the 9th November, 1938, being mesne profits, and from the 10th November, 1938, till the making over of possession by the Receiver to him, for a sum calculated on the same basis as damages.