JUDGMENT Mukerji, J
1. This appeal has been referred to a Bench of two Judges because a plea was taken for the first time in the lower appellate Court that the suit was barred by the provisions of Order 2, Rule 2, Civil P.C. The learned single Judge was not sure whether it was open to the defendant, the appellant before the lower appellate Court, to raise the plea. The facts are these : The plaintiff who is the appellant before us brought a suit for possession of a certain property. He asked for mesne profits up to the date of the institution of the suit, but did not ask for mesne profits for the period following the institution of the suit and till the recovery of possession. He brought a second suit for mesne profits for this period. The first Court decreed the suit. In the lower appellate Court, the defendant for the first time, took the plea that the suit was barred by Order 2, Rule 2, Civil P.C. The District Judge gave effect to the defendant's plea and dismissed the suit relying on the case of Gordhan Lalji Maharaj v. Bishambar Nath A.I.R. 1927 All. 416. In a recent Full Bench case, namely, Ram Karan Singh v. Nakchhed Singh Ahir A.I.R. 1931 All. 429, it has been held that in the circumstances of this case, a second suit is not barred by the provisions of Order 2, Rule 2, Civil P.C. As regards the question whether the point would be raised in a first appeal, we are clearly of opinion that it could be raised. The point was a pure question of law and to be argued on admitted facts went to the root of the case. In the result we allow the appeal, set aside the decree of the Court below and restore the decree of the Court of first instance with costs to the appellant throughout.