K.B. Asthana, C.J.
1. These two cross appeals arise out of a suit filed for recovery of mesne profits. They can be disposed of by a common judgment.
2. Second Appeal No. 1166 of 1961 has been filed by the defendants to the suit and the other Second Appeal No. 5343 of 1961 has been filed by the plaintiff to the suit.
3. The plaintiff brought a suit in the court of the Civil Judge Saharanpur, for recovery of mesne profits. The suit for the purpose of jurisdiction and subject-matter, was valued approximately at Rs. 5,000 and odd. It was prayed that if on determination the court found a larger sum payable as mesne profits the same obdecreed on the condition of payment of requisite court-fee.
4. Briefly stated the admitted facts are as follows:
The defendants under a lease executed by the plaintiff took a flour mill together with appurtenance for a period of one year on yearly rent of Rs. 20,000. The lease expired on July, 1942. The defendant did not get the lease renewed, for another year as was stipulated in the lease-deed, did not deliver possession and continued to occupy and operate the flour mill. The plaintiff then filed suit No. 42 of 1942 for ejectment of the defendant. This suit was decreed on 19-2-1945. An appeal by the defendant, was ultimately dismissed by the High Court on 23-11-1954. Meanwhile the plaintiff made efforts to execute the decree against the defendants and made repeated applications for execution during the years 1945 and 1946, but on the objection of the defendant, the execution applications were dismissed, on the ground firstly, under the order issued by the District Magistrate under the Defence of India Rules the eviction of tenants was not permitted and then under the Ordinance issued by the Governor and finally under the 0. P. Act III of 1947. From the dismissal of the last application for execution the plaintiff preferred an Execution First Appeal. This Execution Appeal was also heard by the same Bench which heard the appeal from the original decree of ejectment and was decided on the same date i.e. 23-11-1954. The Execution Appeal was allowed. By that time the protection afforded by law had ceased due to amendment in the definition of 'accommodation' by U. P. Act XVII of 1954, and the mill in question with its appurtenance fell outside the definition of 'accommodation' under U. P. Act III of 1947. However the High Court, on mutual agreement between the parties, allowed four months' further time to the defendants for delivering possession to the plaintiff. It appears despite the decision of this Court allowing the execution to proceed, and despite further time having been granted the defendants did not deliver possession till some time in the year 1956. Meanwhile, the plaintiff filed suits for recovery of mesne profits. The suit giving rise to this appeal is one of such suits. In the instant suit mesne profits have been claimed ,for a period commencing from 1-5-1952 and ending with 30-4-1955. The plaintiff alleged that the defendants had been earningprofits end they were liable to disgorge such profits earned, having been in wrongful possession as trespasser throughout the suit period, it was further alleged that the defendants had all the accounts with them and the court if it thought fit could make an inquiry and then pass a decree. The defendants pleaded that so long as the law protected them and permitted them to remain in possession as the tenants, they would not be and could not in law be trespassers in wrongful possession. Hence the plaintiff was not entitled to recover any mesne profits. It was further pleaded that the defendants remained unaffected by the amendment of the law by U. P. Act No. XVII of 1954 and the accommodation occupied by them remained protected. It was also pleaded that the defendants had been regularly paying rent and were entitled to adjust the accounts for the price of wheat and flour supplied to the plaintiff.
5. The learned Civil Judge trying the suit held that the plaintiff was not entitled to recover mesne profits for a period earlier than 23-3-1955 up to which date, by the judgment of the High Court in Execution Appeal, the defendants were permitted to remain in possession. Accordingly the learned Civil Judge passed a decree for the period from 24-3-1955 up to 30th April 1955 and awarded Rs. 2055.0 as mesne profits. The plaintiff's appeal was, at first, filed in this High Court but on account of the operation of the U. P. Civil Laws Amendment Act, the appeal was transferred to the District Judge. The learned District Judge allowed the appeal and awarded mesne profits to the plaintiff for the period from 16th February 1954 to 30th April 1955, and awarded a sum of Rs. 24,000. The learned District Judge did not give the benefit to the defendants of the law which barred dispossession or ejectment of the tenants but found that for a period prior to 16-2-1954 the defendants had paid the mesne profits and assessed the rate of rent originally agreed by the parties. Both the parties being aggrieved by this decree have filed the above Second Appeals.
6. Learned counsel for the defendants appellants raised two grounds in support of their appeal : The first ground was that the defendants' possession was lawful by virtue of the operation of the order of the District Magistrate under Defence of India Rules, then by Ordinance No. III of 1946 and finally by U. P. Act No. 3 of 1947 and for a further period of four months under the order of the High Court passed in Execution First Appeal and even for one month or so, the remaining period covered by the suit the defendant was not liable to pay anything as they had already paid much more. The second ground was that in effect the suit Was one for accounts and a preliminary decree ought to have been passed first and the final decree could be passed only after an inquiry. A further argument was also raised that if the suit was to be treated as one for mesne profits, the plaintiff could not have valued it on approximation and no decree could be passed by the court below for an amount larger than one at which the suit was valued.
7. In the cross-appeal the plaintiff mainly attacked the decree of the court below on the ground that there was ample evidence on record that the defendants had earned much larger profits and the court below ought to have held an inquiry before passing the final decree.
8. We have no difficulty in dismissing the plaintiff's appeal. We do not find any such grounds having been raised or argued in the lower appellate court on behalf of the appellant. We think that the court below was justified in awarding mesne profits on the basis of rent agreed upon between the parties under the original lease. The law is well settled that for awarding mesne profits in suits for ejectment of tenants, the rate of rent payable by the tenant to the landlord, is en appropriate measure for assessing mesne profits. Here we may take note of a feeble argument raised by learned counsel for the defendants appellants also that the Court ought to have put the plaintiff on proof and not award mesne profits simply on the basis of monthly rent. It appears that both the parties are simmering under some kind of dissatisfaction for both are attempting to reopen the matter. The plaintiff hopes that after full inquiry he will get a larger amount as mesne profits and the defendants hope that if an inquiry were made, nothing would be found due from them as they had already paid much more throughout these years than the plaintiff could establish. But we are not inclined to take the course as suggested by the parties. The litigation between the parties has been pending for all these years since 1942. Almost at all stages the parties have reached upto the High Court.The remand to the court below merely for satisfaction of the parties, under the circumstances is not warranted. The parties should be prevented from further incurring costs on litigation and the time of the court will also be saved. We do not find any legal error in the judgment of the court below in assessing the mesne profits on the basis of the yearly rental, so as to interfere with the decree appealed against. This disposes of the common point of attack on the decree and it is conclusive of the plaintiff's appeal.
9. The question that arises for our consideration in the appeal by the defendants is whether the defendants could be held to be in wrongful possession for the period:--
(a) During the protection afforded by law which prevented their eviction in execution of the decree or otherwise, and
(b) For the period of four months commencing from 23-11-1954 according to the order of the High Court in execution first appeal.
On 7th August 1944 the District Magistrate in exercise of his powers under the Defence of India Rules, issued an order that no tenant would be evicted from any accommodation defined in the order in execution of any decree or otherwise. It was further provided in the order that a tenant could only be evicted if certain conditions mentioned in that order were complied with or existed. It is not disputed that the flour mill with its appurtenances, was covered by the definition of the 'accommodation' as given in the said order. The plaintiff filed the first execution application after the issuance of the above order and his application was dismissed for the reason that unless the order of the District Magistrate was vacated the decree for eviction could not be executed. The order of the District Magistrate continued to remain in force till U. P. Ordinance No. 3 of 1946 was promulgated with effect from 1-10-1946. Clause (7) of this Ordinance lays down the same terms and conditions as the order of the District Magistrate. It is not disputed that the flour mill and its appurtenances were covered by the definition of 'accommodation' under the Ordinance. The Ordinance was replaced by U. P. Act No. III of 1947 which by Section 7 afforded the same protection to the tenants and the defendants could not be evicted from the flour mill in execution of the decree. On 30th September. 1954, U. P. Act No. XVII of 1954 was enforcedwhich brought a radical modification in the definition of 'accommodation'. The new definition excluded the flour mills and its appurtenances from the protection of the Act. Though an argument was raised that the amendment did not bring about any such change so as to exclude the flour mills in question from the protection of the Act, but we are not impressed with it as throughout in the courts below also the parties proceeded on this basis. Further, such a point cannot be raised now because in the first Execution Appeal in this Court in which judgment was delivered on 23-11-1954, a certified copy of which is on record, we find that the parties conceded to that position. It is clear, therefore, that upto 30th September 1954, the defendants were immune from the process of the court in execution of the decree for their eviction. To the plaintiff accrued the right to dispossess the defendants in execution of the decree with effect from 30th September 1954. The defendants ceased to have any statutory protection thereafter. The question then is during all the period when the above laws were in force, could the defendants be said to be in wrongful possession. The answer seems to us to be obvious. If the defendants' possession was protected by law, it would be a contradiction in terms to characterise such possession as unlawful. The defendants' possession could not be said to be contrary to law.
10. It was urged by the learned counsel for the plaintiff that the law merely barred the plaintiff from executing his decree but did not turn the wrongful possession of the defendants into a lawful possession. He would always remain a trespasser. This line of argument does not appeal to us. In our judgment when the statute protected the possession of the defendants conferring immunity on them from being dispossessed by operation of law, they would be deemed to be in possession under the authority of law, and even after the lease had expired or the tenancy had been terminated and the legal disability of the landlord to evict or dispossess a tenant, continuing the continuous possession of a tenant in such conditions will be termed as conferring upon him a right as statutory tenant. The defendants were thus continuing as statutory tenants upto 30th September 1954. We are supported in this view of ours by a decision of Kerala High Court in Madhavan Nair v. Ankan,(AIR 1962 Ker 55). The observations in the Division Bench of the Madras High Court in Sanjeevi Naidu v. Chittibabu Mudaliar (AIR 1953 Mad 473), also tend to support this view.
11. We agree, with the contention of the learned counsel for the defendants appellants that the defendants could not be treated as in wrongful possession till 30th September 1954. The plaintiff, therefore, cannot legally recover mesne profits from the defendants for the period 1-5-1952 to 30th September 1954, and the suit of the plaintiff as regards the said period is liable to be dismissed.
12. Coming to the contention of the defendants applicants that the four months' period during which their possession was protected by the order of the High Court by the judgment in Execution First Appeal, would make the defendants' possession as Lawful, does not appeal to us. The order of the Court will not have the effect of a statute. It only postponed the execution of the decree for delivery of possession by a period of four months further. It did not protect the tenancy rights of the defendants. The defendants' possession, despite the order of the Court, would remain that of a trespasser as during that period he had no statutory protection.
13. The last argument by the learned counsel for the defendants-appellants was that the plaintiff could not obtain a decree for larger amount than at which the subject-matter of the plaint was valued. He submitted that in the suit for recovery of mesne profits, the plaintiff could not give an approximate or artificial value. This contention has no force. Order VII, Rule 2, C.P.C. is a complete answer to this contention.
14. The result is that the defendants-appellants' Appeal No. 5166 of 1961, is partly allowed. The decree of the court below is modified. Instead of the figure of Rs. 24,000 as mesne profits, the figure of Rs. 11,666.66 Paise, shall be substituted. The defendants appellants will be entitled to half of his costs of this appeal.
15. Second Appeal No. 5343 of 1961 is dismissed. There will be no order as to costs.