Judgment G.N.Prasad, J. 1. This appeal under 01.10 of the Letters Patent of this Court is by defendant No. 1 in a suit for declaration of title and recovery of possession together with mesne profits in respect of 1 Bigha 4 Kathas 13 dhurs or land appertaining to Khata No. 205 in village Sonepur Adam (Tauzi No. 5545). 2. In the revisional suvvery record of rights, which was finally published In December 1020, the suit land was recorded in the name of Ram Pabitar Gir, who was admittedly the Kothari (servant) of defendant No. 1. On the 27th May 1948, defendant No. 1 executed a deed of perpetual lease in respect of the suit land in favour of Kamla Singh, the plaintiff, who, in his turn executed a Kabuliyat agreeing to hold the land as a lessee on an annual rental of Rs. 19/13/9 inclusive of cess The premium agreed upon between the parties was Rs. 7,350/-, which, under the terms of the lease, was payable in three instalments as follows: (i) Rs. 100/ by way of advance at the time when the negotiation was finalised, (ii) Rs. 6,000.00 at the time of the registration of the document, and (iii) the balance of Rs. 1,250.00 at the time of exchange of equivalents. 3. The suit was instituted by the plaintiff with the allegation that the lessor (defendant No. 1) had not only failed to put him in possession of the lease-hold interest in accordance with the terms of the document but had also put an obstacle in his way by setting up Sheo Mahton (defendant No. 2) as a false claimant of raiyati or under-raiyati interest in the suit land. It was alleged that after the registration of the document, when the plaintiff proceeded to take possession of the suit land, he noticed that the eastern ridge of plot No. 340, which was one of the settled plots, had been demolished and it was amalgamated with the adjoining plpt No. 341, which was not included in the plaintiffs lease. In this state of affairs, the plaintiff withheld payment of that portion of the premium which under the terms of the lease was payable to defendant No. 1 at the time of exchange of equivalents. In this state of affairs, the plaintiff withheld payment of that portion of the premium which under the terms of the lease was payable to defendant No. 1 at the time of exchange of equivalents. The plaintiff, however, insisted on his right to be put in possession of the suit land over which he was entitled to be in possession with effect from the date of execution of the lease. The plaintiff was also willing and ready to pay the balance of Rs. 1,250/-to defendant No. 1, and even tendered the same to him. But defendant No. 1, who was in collusion with defendant No. 2, failed to put the plaintiff in possession of the land, and on the contrary, he himself continued in wrongful possession thereof and appropriated its profits, compelling the plaintiff to seek his remedy in Court As already indicated, besides seeking declaration of title, the plaintiff has also asked for recover) of possession and mesne profits from the date of the execution of the lease up to the date of delivery of possession. 4. The suit was contested by both the defendants. Defendant No. 1 affirmed his right to grant the lease in favour of the plaintiff, denying the interest of defendant No. 2 in the suit laid. He refuted the allegation of the plaintiff that defendant No. 2 was his creature or that he had been set up by him in order to prevent the plaintiff from taking possession of the same. On the contrary, he alleged that the plaintiff entered into possession of the suit land in accordance with the terms of the lease, but in spile of repeated demands, the plaintiff never paid to him the sum of Rs. 1,250/-, which was payable at the tune of exchange of equivalents. The further case of defendant No, 1 was that on the 8th September, 1949, he sent a registered notice to the plaintiff, through his pleader, calling upon him to pay the sum of Rs. 1,250/-besides all arrears of rent in respect of the suit land, and to do Takazul Badlain, but the plaintiff refused to take the notice and, therefore, on the 4th February 1950, defendant No. 1 filed Money Suit No. 4 of 1950 in the Court of the Third Munsiff at Chapra for recovery of his dues from the plaintiff. 1,250/-besides all arrears of rent in respect of the suit land, and to do Takazul Badlain, but the plaintiff refused to take the notice and, therefore, on the 4th February 1950, defendant No. 1 filed Money Suit No. 4 of 1950 in the Court of the Third Munsiff at Chapra for recovery of his dues from the plaintiff. It was suggested that the present suit was subsequently instituted by the plaintiff on the 20th May 1950 with false allegations as a counter-blast to the claim of defendant No. 1 in the money suit aforesaid. 5. Defendant No. 2, on the other hand, claimed his own title in the suit land as a raiyat or under raiyat under defendant No. 1. He denied that any title had been acquired by the plaintiff by virtue of the Patta and Kabuliyat (Ext. 1) executed in his favour by defendant No. 1 on the 27th May, 1948, mainly on the ground that defendant No. 1 had no interest in the suit land except that of getting rent for the same from defendant No. 2. The further case of defendant No. 2 was that plot No. 341 was his ancestral kast land and he had amalgamated plots Nos. 340 and 341 long before the registration of the document of lease in favour of the plaintiff. 6. The learned Additional Subordinate Judge, Chapra, who tried the suit, along with Money Suit No. 4 of 1950 which had subsequently been transferred to his Court for analogous trial, negatived the case of defendant No. 2 and held that defendant No. 1 was fully competent to grant the lease to the plaintiff under the deed of lease executed by him on the 27th May 1948. The settlement was a valid settlement and by virtue of it, the plaintiff was entitled to acquire possession over the suit land. He further held that defendant No. 2 had been set up by defendant No. 1 in order to obstruct the plaintiff from getting possession over the land and that the eastern ridge of plot No. 340 had been demolished at the instigation of defendant No. 1 subsequent to the execution of the deed of settlement in favour of the plaintiff. Upon those findings, the learned Additional Subordinate Judge held that: "....... Upon those findings, the learned Additional Subordinate Judge held that: "....... .the plaintiff is not only entitled to acquire possession over the lands in dispute, bat that he is also entitled to recover mesne profits with effect from the date of settlement as he has been deliberately and unlawfully kept out of possession. This question cannot be affected in any way whatever by the circumstance that a portion of the Nazarana money has not been paid by the plaintiff, because he has all the time being (sic) expressing his willingness to pay this amount; this he has been doing in clear and unequivocal terms. He has not made this payment because the landlord did not put him in possession of the settled lands: it is because of this that Takabzul Badlain has not taken place as yet." In the operative part of his judgment, the learned Additional Subordinate Judge, however, added that before the plaintiff would be allowed to apply for delivery of possession, he must deposit in Court to the credit of defendant No. 1, the unpaid balance of the Nazarana money, namely, Rupees 1,250.00 together with interest thereon from the date of the decree, and that defendant No. 1 would be entitled to withdraw the money only after he had filed in Court the original deed of settlement validly executed by him in favour of the plaintiff. 7. Both the title suit and the money suit having been decreed, as indicated above, three appeals were filed in this Court; two of them from the decree in the title suit, namely, First Appeal No. 47 of 1952 by defendant No. 2 and First Appeal No. 172 of 1952 by defendant No. 1. The third appeal was First Appeal No. 131 of 1953 by the lessor, who was aggrieved in part against the decree in the money suit. All the three appeals were heard together by Rajkishore Prasad, J. who disposed them of by a common judgment dated the 28th January 1959. In First Appeal No. 47 of 1952, the learned Judge held, in agreement with the trial Court, that at the time of the settlement made with the plaintiff under Ext, 1, it was defendant No. 1, and not defendant No. 2, who was in possession of the suit lands, and, therefore, defendant No. 1 had every right to effect the settlement in favour of the plaintiff. The learned Judge further held that defendant No. 2 was a creature of defendant No, I and had been set up by defendant No. 1 in order to obstruct the plaintiff from acquiring possession of the settled lands. In First Appeal No. 172 of 1952, the learned Judge upheld the findings of the trial Court that defendant No. 1 did not put the plaintiff in possession of the suit lands as he should have done, but had, on the contrary, put obstacles in the way of the plaintiff in collusion with defendant No. 2, and that the eastern ridge of plot No. 340 had been demolished at the instigation of defendant No. 1 subsequent to the execution of the deed of settlement in question. The learned Judge rejected the case of defendant No. 1 that the plaintiff had duly come in possession of the suit land in accordance with the terms of the deed (Ext. 1). In the result, the learned Judge dismissed both the appeals arising from the title suit, but allowed the appeal arising from the money suit on a point which is not relevant to the present discussion. 8. The present appeal arises out of First Appeal No. 172 of 1952, in which the only question raised by defendant No. 1 was that he was not liable for mesne profits of the suit lands which the plaintiff had claimed in this suit, and that is the only question which we have to consider in this appeal 9. Mr. R.S. Chatterjee appearing on behalf of the appellant contends that there are several grounds why mesne profits should not be allowed to the plaintiff. The first ground urged is that upon the materials on the record, it ought to be held that the plaintiff had duly come in possession of the suit lands since after the execution of the deed of settlement in his favour. In this connection reliance is placed by the learned counsel upon the deed (Ext. 1) which contains a recital to the effect that having received the stipulated Nazrana money from the lessee the lessor put him in possession and occupation of the land in question "from this date", and that the lessee "entered into possession and occupation of the same" It is urged that since the plaintiff is also a signatory to the deed (Ext. 1), he must be bound by the aforesaid recitals in the deed and, therefore, it is not open to him to maintain that he had not been put in possession and occupation of the suit lands. It is true that normally a person who subscribes to a deed must be bound by all the recitals contained therein. In the present case, the plaintiff happens to be a literate person and he put his signature on the deed below an endorsement which reads; "I took settlement and executed the Kabuliat This is correct, and it is admitted and approved by me. t myself read the entire contents and got the same read over to me by the scribe and understood the same." Nevertheless, I am of the opinion that the plaintiff is not precluded from showing that he was not put in possession of the settled lands in accordance with the terms of the deed. Even with regard to the sum of Rs. 1,250.00 which had admittedly remained to be paid by way of the Nazrana money, at the time of the execution of the deed, and was payable on a subsequent occasion at the time of exchange of equivalents, it was recited in the deed that the lessor had received this portion of the Nazrana money as well Yet it had never been suggested that the said recital in the deed precluded defendant No. 1 from showing that the balance of Rs. 1,250.00 has not been paid to him by the plaintiff. If defendant No. 1 is not precluded as aforesaid, I see no reason why the plaintiff should be precluded from showing that despite the recitals to this effect in the deed, he was not put in possession and occupation of the lands of which he took the settlement. Besides, it has been held by the learned Single Judge in clear terms that defendant No. 1 had set up defendant No. 2, who was in his service and in his collusion, "in order to obstruct the plaintiff from acquiring possession of his settled lands". This finding of the learned Judge is amply supported by the materials on the record, and I see no compelling reason to take a different view. In the circumstances, I have no hesitation in overruling the contention of Mr. Chatterjee based upon the recitals in the deed Ext. 1. 10. Mr. This finding of the learned Judge is amply supported by the materials on the record, and I see no compelling reason to take a different view. In the circumstances, I have no hesitation in overruling the contention of Mr. Chatterjee based upon the recitals in the deed Ext. 1. 10. Mr. Chatterjee then relies upon certain statements made by the plaintiff who deposed at the trial as P. W 8. There he said that defendant No. 2 or his men never exercised any act of possession over the lands in dispute, that the eastern ridge of plot No. 340 was intact at the time when he had visited the land on the date of the registration of the deed of settlement that when he visited the land again about a week later, he found the eastern ridge of plot No. 340 demolished, and that he had brought this fact to the notice of defendant No. 1 who agreed to have the ridge restored at the commencement of the cultivating season, but, in fact, the ridge was not restored and he was never put in possession. The plaintiff further deposed that defendant No. 1 had asked him to pay the balance of the Nazrana money and then to acquire possession and cultivate the lands, but he decided to withhold payment of the balance and to pay it only when possession was made over to him. The plaintiff admitted that after the registration of the deed he had gone on the land to take possession but did not make any attempt to acquire possession when he found the ridge demolished, but added: "I refrained from acquiring possession suo motu and without the help of Puma Nandan (defendant No. 1) because I apprehended breach of peace." Mr. Chatterjee contends, in the first place, that at the time of the plaintiffs first visit to the land on the date of registration of the deed, there was absolutely no impediment in the way of his entering into possession and that he was himself to blame if he did not take possession of the lands settled with him. Chatterjee contends, in the first place, that at the time of the plaintiffs first visit to the land on the date of registration of the deed, there was absolutely no impediment in the way of his entering into possession and that he was himself to blame if he did not take possession of the lands settled with him. Secondly, the learned counsel contends that both under the agreement arrived at between the parties as also under the law, the plaintiff was bound first to pay the outstanding balance of the Nazarana money and then to aslo the lessor to put in possession, but this the plaintiff never did. In this context Mr. Chatterjee alsa relied upon Sec.108(b) of the Transfer of Property Act, 1882, which provides that the lessor is bound, "on the lessees request" to put him in possession of the property and contends that the plaintiff not having requested defendant No. 1 to put him in possession, is not entitled to put forward a claim for mesne profits against him. 11. It will be noticed that these contentions ot Mr. Chatterjee proceed upon two alternative assumptions; first, that the interest created in favour of the plaintiff tractor the dead Ext. 1 operated as a present demise entitling the plaintiff to enter Into possession of the property from the date of the execution of the document, and, second, that the vesting of the interest in the lessee was postponed until he discharged his obligation of paying the outstanding balance of the Nazrana money. If it was a present demise, then there can be no doubt that the plaintiff was entitled to be put in possession of the property from the very date of the execution of the instrument. It is true that he could have taken possession of the property, at the time of his first visit on the date of the registration. But the fact that he did not take possession of the properly on the occasion would not affect his right to be put in possession at his convenience when he paid his second visit to the property a week later. But the fact that he did not take possession of the properly on the occasion would not affect his right to be put in possession at his convenience when he paid his second visit to the property a week later. The effect of the failure of the plaintiff to take possession of the property during his first visit would, at best, be that be would not be entitled to urge that he was wrongfully kept out of possession by the lessor or his agent until his second visit and, as a consequence of it, he is not entitled to make a claim for mesne profits for the period between his first and his second visits. That, however, would make no difference in this case because the plaintiff has really claimed mesne profits from the period commencing from the agricultural season of 1948. But upon the evidence on the record referred to above, and accepted by the learned Single judge for reasons which appear to me to be cogent, there can be no doubt that his second visit to the property was for the purpose of taking possession of it; but he was unable to enter upon the property on account of the obstacle put in his way by defendant No. 2 in collusion with the lessor, defendant No. 1. The finding of the learned Single Judge that the eastern ridge of Plot No. 340 had been demolished at the instigation of defendant No. 1 subsequent to the execution of the deed (Ext. 1) has not been challenged before us. I also see no reason why the plaintiff should not be believed when he says that he refrained from taking possession of the property of his own accord and without the help of defendant No. 1, because he apprehended that there might be a breach of the peace. It is mainfest that at that stage the plaintiff did not stand by, but brought to the notice of the lessor the fact that one of the ridges had since been demolished, whereupon defendant No. 1 had agreed to restore the ridge by the commencement of the next cultivating season. The implication obviously is that the plaintiff had requested the lessor to put him in possession of the property and the lessor, in his turn, had agreed to do so after restoring the ridge by the time the next cultivating season started. Mr. The implication obviously is that the plaintiff had requested the lessor to put him in possession of the property and the lessor, in his turn, had agreed to do so after restoring the ridge by the time the next cultivating season started. Mr. Chatterjee is, therefore, not right in contending that the lessee had not asked to be put in possession of the property, Tn my opinion, he had undoubtedly done so at the time when he had complained to the lessor about the demolished ridge. 12. It appears, however, that at that stage defendant No. 1 had asked the plaintiff to pay the outstanding balance of the Nazarana money and then to enter upon the property, but the plaintiff insisted u pon first being put in possession of the property, But if the lease operated as a present eternise, then the plaintiff was entitled to be put in possession of the property and defendant No. 1 was bound to put him in possession of it when he was called upon by the plaintiff to do so. The right of defendant No. 1 to be paid the outstanding balance of the Nazrana money would in no way have been affected by reason of discharging his obligation of putting the plaintiff in possession of the property when a request to this effect was made by the plaintiff. But upon the finding arrived at by the learned Single Judge, which is no longer open to challenge, it is obvious that defendant No, 1 had deliberately set up defendant No. 2 in order to obstruct the plaintiff from acquiring possession of. the property. From that stage, therefore defendant No. 1 had wrongfully kept the plaintiff out of possession of the suit lands and had himself remained in possession and appropriated the profits thereof, though he was entitled only to receive the stipulated rent from the plaintiff. 13. The next question is, was the plaintiff bound to pay the outstanding balance of Rupees 1,250.00 to defendant No. 1 before he could enforce his right of being put in possession of the lands settled with him. In other words, was the vesting of the leasehold interest in the plaintiff dependent upon his making full payment of the agreed Nazarana money? 14. In substance, the contention of Mr. In other words, was the vesting of the leasehold interest in the plaintiff dependent upon his making full payment of the agreed Nazarana money? 14. In substance, the contention of Mr. Chatterjee is to the effect that the plaintiff was not entitled to be put in possession of the property until he had paid the balance of Rs. 1,250.00 rests upon the following recitals in the deed (Ext I) "I, executant No. 1 first party made perpetual settlement of the lands mentioned and detailed in column No. 5 of this deed with execu tant No. 2 the second party, descendable to child ren, generation after generation, both in male and female lines, on taking Rs. 7,350.00 (seven thou sand, three hundred and fifty rupees), nazrana money and on fixing the annual jama including at Rs. 19/13/9 and received the said nazrana money with the details that I received a sum of Rs. 100.00 as peshgi (advance at the time when the negotiation was finalised,) Rs. 6,000.00 at the time of ad mission of registration before the Sub-Registrar and the remaining Rs. 1,250.00 at the time of exchange of equivalents, from executant No. 2 the second party, and put him in possession and occupation thereof from this date. Mr. Chatterjee contends that the recitals extracted above must be construed as indicating that the intention of the parties was that the lease was to commence upon the payment of the entire amount of Rs. 7,350.00 to the lessor In this connection It is pointed out that in the case of similar recitals occurring in the sale deeds, a Bench of this Court has held in Md. Murtaza Hussain V/s. Abdul Rahman. AIR 1949 Pat 364 that the intention of the parties was that the passing of title should be dependent on the passing of consideration. A similar view was taken by another Bench of this Court in Motilal Sahu V/s. Ugrah Narain Sahu, AIR 1950 Pat 288 . It is urged that the principles governing these two cases apply with equal force to a lease where the full nazrana money has not been paid The question, however, does not strictly arise in this, oase. It was nowhere pleaded by defendant No 1 in his written statement that the intention of the parties was that the lease would become operative after the entire nazrana money had been paid to him. It was nowhere pleaded by defendant No 1 in his written statement that the intention of the parties was that the lease would become operative after the entire nazrana money had been paid to him. Intention is a question of fact which must be specifically raised in the pleading. On the contrary, the tenor of the defence put forward by defendant No. 1 in his written statement was that tie had put the plaintiff in possession of the land on the date of execution of the lease, The question of intention to postpone the demise was also not raised in the trial Court or before the learned Single Judge. It has been raised for the first time before us. It is not warranted upon the pleadings and, therefore, we cannot allow the point to be raised for the first time at this late stage. It is, however, enough to say that on the question of passing of title, a transaction of sale cannot be equated with a transaction of lease. The Bench decision of this Court in Jangal Singh V/s. Mukund Kumar, AIR 1948 Pat 446 is a direct authority on the point. There the question as to when a perpetual agricultural lease commenced, directly arose for consideration. The lease had been created by a registered document which recited that having taken Rs. 300.00 as Salami, the lessor settled the land with the lessee in permanent raiyati right. In fact, however, the Salami had never been paid, Their Lordships held that on a consideration of the general principles underlying Chapter V, Transfer of Property Act, the lease became operative on the date it was made and when the lessee accepted the terms of the lease. It was pointed out that the mere facb that the Salami had not been paid could not lead to the legal inference that the lease was not made on that date. In that case, there was nothing in the document whatever to suggest that the commencement of the lease was to be postponed, and it was pointed out that in the case of a lease, some much clearer and more definite indication of intention to postpone commencement would be necessary than a mere incorrect recital of receipt of Salami, when in fact salami might not have been received. In his separate but concurring judgment, Manohar Lall, J. made the following observation: "It was open to the parties to contract that unless the premium is paid the lease will not become effective; in that case, the lease would have begun from the future date, namely, the date of the payment of the premium." 15. The present case stands on a much higher footing. Here, the lessor had admittedly received a substantial portion of the premium and far from expressing a clear and definite intention that the lease would operate from the date of payment of the balance of the premium, he agreed to a term whereby the lessee became entitled to be- put in possession of the property on the very date of the execution of the deed (Ext. 1). Applying the principle laid down in Jangal Singhs case, AIR 1948 Pat 446, 1 overrule the contention of Mr. Chatter-jee and hold that the lease in the present case became operative on the date when it was executed both by the lessor and the lessee, and that despite the fact that a part of the premium still remained to be paid, the plaintiff became entitled to be put in possession of the property with effect from the following day. If it was within the contemplation of defendant No. ] that title should not vest in the plaintiff until he had paid the balance of Rs. 1,250.00 to him, then he ought to have expressed it in the deed (Ext, 1) in clear terms. But there is nothing in the document to suggest that the payment of the entire nazrana money was to be a condition precedent to the vesting of the leasehold interest in the plaintiff. It was certainly not an inseparable part of the agreement between the parties, as Mr. Chatterjee sought, at one stage of his argument, to make out. There was also no lien upon the property for the unpaid balance of the premium money like a vendors lien for the unpaid price in case of a sale deed. It is note-worthy that Chapter V of the Transfer of Property Act does not contain any provision to the effect that payment of premium is an essential ingredient of a transaction of lease. It is note-worthy that Chapter V of the Transfer of Property Act does not contain any provision to the effect that payment of premium is an essential ingredient of a transaction of lease. I, therefore, see no principle or precedent to support the proposition that a lessee who has acquired a present right to possession over the lease-hold property is not entitled to its rents and profits merely because he has not paid a part of the premium money which he has agreed to pay. 16. Lastly, Mr. Chatterjee contends that the plaintiffs claim for mesne profits is misconceived, because it was, in the ultimate analysis, a case of breach of contract for which the remedy lay in suing for damages in accordance with the principles embodied in Sections 73 and f4 of the Contract Act. The whole basis of Mr. Chatterjees contention is that the agreement contained in Ext. 1 constituted reciprocal promises, the performance of one of which could not be claimed till the other had been performed, so that the consequences mentioned in Section 54 of the Contract Act would follow when the promisor of the last mentioned promise fails to perform it, and is, therefore, debarred from claiming the performance of the reciprocal promise. This amounts to say that having failed to put the plaintiff in possession of the property, defendant No. 1 cannot claim the sum of Rs. 1,250/-, to which he was entitled as balance of the premium, and he must compensate the plaintiff for any loss which he may have suffered by reason of the non-performance of the contract. But Sec. 54 can only come into play if the performance of one part of the agreement is dependent upon the performance of the other part of it. That, however, is not the situation in the present ease. I have already shown that the right of the plaintiff to be put in possession of the property was in no way dependent upon the right of defendant No. 1 to the payment of the sum of Rupees 1,250/-. Each of these promises was to be performed independently and, therefore, it is not a case of reciprocal promises of the nature envisaged in Section 54. Each of these promises was to be performed independently and, therefore, it is not a case of reciprocal promises of the nature envisaged in Section 54. The present case is a simple case of the plaintiff having been wrongfully kept out of possession of a property over which he was entitled to come in possession in accordance with the terms of the deed, Ext, 1, quite apart from his liability to pay a Further sum of Rs. 1,250.00 to the lessor. Therefore, even if it be treated to be a case of breach of contract, the measure of the loss suffered by the plaintiff on account of being wrongfully kept out of possession over the property would be its mesne profits for the period until he was put in possession over it. In other words, the plaintiff must be deemed to be entitled to mesne profits, by way of damages, until the date of delivery of possession to him. 17. For the reasons set forth above, I am of the opinion that the claim of the plaintiff has been rightly decreed and that there is no merit in this appeal. The appeal, therefore, foils and it is, accordingly, dismissed with costs. Misra, J. 18 I agree.