S.C. Mathur, J.
1. This appeal arises from a suit for possession and recovery of mesne profits and damages. The suit arose in the circumstances indicated hereinafter. Respondents 1 and 2 Mohammad Shuaul Islam and Smt. S.K. Islam are the owners of a house situate at Rana Pratap Marg. This house was allotted in favour of the appellant Satya Sindhu Pande on 21-10-1963. In pursuance of this allotment order he entered into possession of the property in dispute. This allotment order related to the entire house. On a writ petition filed by the owners this allotment order was quashed by this court on 2-11-1965. Thereafter another allotment order was passed on 20-1-1966 in respect, of a portion of the house. This order was also quashed by this Court on 3-11-1970 on a writ petition filed by the owners. The owners thereafter filed suit for possession and recovery of mesne profits and damages. The allegation of the owners was 1 hat the accommodation in question was never vacant so as to be available for allotment under the provisions of Section 7 of the U. P. (Temporary) Control of Rent and Eviction Act No. 3 of 1947 and therefore from the inception the occupation of Satya Sindhu Pande who entered into possession in pursuance of the allotment order was illegal and he was therefore liable to pay mesne profits to them. These mesne profits were claimed at the rate of Rs. 525/- per mensem. Pendente lite and future mesne profits were claimed at the rate of Rs. 1000/-per mensem. In paragraph 17 of the plaint it was stated that the damages on account of illegal use and occupation of the premises by the appellant was not less than Rs. 725/- per mensem. Thereafter in paragraph 18 it was stated that on account of their inability to pay court fee on higher amount the plaintiffs were claiming mesne profits at the rate of Rs. 525/-only. It was also pleaded that during his occupation of the property in dispute the appellant caused damage to the building, trees and gardens and also removed seven fans costing Rs. 1200/-. The total amount for which money decree was claimed under the various heads was Rs. 22,000/-. Decree for possession was also claimed over the property in dispute.
2. In the above suit respondents 3 and 4 had also been impleaded on the allegation that they had admitted their liability for payment of rent and damages arising out of the occupation of the building by the appellant.
3. The above suit was contested and it was pleaded that respondents 3 and 4 were not liable for any of the reliefs claimed by respondents 1 and 2. The rate at which the mesne profits were claimed was also challenged. It was asserted in paragraph 17 of the written statement dated 12-1-1971 that the property in dispute had been constructed prior to the year 1940 and was subject to the provisions of U. P. (Temporary) Control of Rent and Eviction Act No. 3 of 1947 and, therefore, plaintiffs-respondents could at the most get reasonable rent as defined under the Act. The damage to property, trees and gardens was denied and it was asserted that the fans had not been taken away by the appellant but were still in tact in the building.
4. The learned trial court framed 11 issues. After trial he came to the conclusion that the plaintiff respondents were entitled to possession over the property in dispute. He also came to the conclusion that the plaintiffs were entitled to mesne profits at the market rate prevailing in the locality. He was further of opinion that the plaintiffs had succeeded in proving damage to the building and assessed Rs. 475/- as compensation therefor. He rejected the plaintiffs claim with regard to damage to garden and trees. He also found that the appellant had removed six D. C. fans each worth Rs. 172/-. He directed the appellant to return the fans within 10 days from the date of judgment failing which the appellant would be liable to pay the cost of the fans at the rate of Rs. 172/- per fan. He passed decree for possession and money as indicated hereinbefore. He also passed a decree for pendente lite and future mesne profits at the rate of Rs. 1000/- per mensem.
5. It is not disputed that the appellant has since vacated the accommodation in dispute. In the present appeal, therefore, the dispute is confined to the decree for mesne profits and damages.
6. In respect of the decree for the sum of Rs. 475/- on account of damage to property, the argument of the learned counsel for the appellant was that the damage found by the learned Court below had occurred on account of normal wear and tear and, therefore, the appellant could not be saddled with liability in respect thereof.
The learned Court below, on an assessment of the evidence on record, came to the conclusion that the plaintiffs-respondents had successfully proved that the damage had been caused by the appellant himself and was not the result of natural wear and tear. The said assessment of evidence does not appear to be unjustified and, therefore, the decree for the sum of Rs. 475/-cannot be disturbed.
7. The next argument of the learned counsel was that respondents within the period of ten days fixed by the learned Court below offered to return the fans but the plaintiffs did not accept the said fans and, therefore, the decree in respect of the fans was liable to be set aside. This question would arise at the stage of execution. Whether the appellant actually offered to return the fans to the plaintiffs-respondents within the period fixed by the Court below will have to be proved through evidence. At this stage I do not have the necessary evidence for resolving the controversy one way or the other. On behalf of the plaintiffs respondents it was denied that the fans were offered to be returned by the defendant appellant.
8. The next argument of the learned counsel for the appellant was that the appellant did not get possession over the entire property which had been allotted to him and, therefore, he was not liable to pay mesne profits in respect of the said entire accommodation. It is true that controversy in respect of the matter was raised by the appellant and evidence was also led to that effect but no issue was pressed on the plea. The controversy was, however, dealt with by the learned Court below under issue No. 10. Under this issue the learned Court below held that whatever persons remained in occupation after the appellant had taken possession of the property in pursuance of the allotment order dated 21-10-1963 their possession was with the leave and licence of the defendant himself and, therefore, the defendant appellant would be liable for payment of mesne profits in respect of the entire accommodation. This finding has not been challenged through any ground in the memorandum of appeal. As such I hold that the defendant appellant is liable for payment of mesne profits in respect of the entire accommodation.
9. The main dispute in this appeal centered round the rate at which mesne profits were to be decreed in favour of the plaintiffs-respondents. On behalf of the appellant it was urged by his learned counsel Sri M.K. Seth that Ext. A-l which was the certified extract of the assessment made by the Municipal Board, Lucknow, in the year 1940 indicated that the entire building was assessed at the monthly rent of Rs. 100/- and that the proportionate rent of the accommodation which came in possession of the defendant was Rs. 40/- only. According to the learned counsel the appellant could, therefore, be compelled to pay mesne profits only at the rate of reasonable annual rent as defined under Section 2 (f) of U. P. Act No. 3 of 1947. On the other hand the argument of the learned counsel for the respondent was that since the allotment order passed in favour of the appellant had been found to be without jurisdiction no relationship of landlord and tenant came into existence between the appellant and the plaintiff-respondents and, therefore, the mesne profits could not be calculated on the basis of the rent which might have been payable by a tenant in accordance with the provisions of U. P. Act No. 3 of 1947. In support of his plea that mesne profits could be claimed only in accordance with the reasonable annual rent defined under U. P. Act 3 of 1947, the learned counsel placed reliance upon a Division Bench decision of this Court in Dwarka Prasad v. Central Talkies, Collectorganj, Kanpur, (AIR 1956 All 187). This case is clearly distinguishable. This was a case between landlord and tenant. The landlord after terminating the tenancy of the tenant filed suit for ejectment and recovery of arrears of rent and damages for use and occupation for the period subsequent to the termination of tenancy. The rent in that case was payable at the rate of Rs. 550/- per mensem. The claim of the plaintiff was that after the tenancy had been terminated he was entitled to damages at the market rate of rent which according to him was Rs. 1,500/- per month. It was on these facts that the Division Bench observed that the amount which the landlord could be said to get from the premises would be equal to the maximum permissible rent under the Control of Rent and Eviction Act and that he was not entitled to anything more under the guise of damages on the alleged basis of high offers of rent to him by persons who may not have any chance of getting an allotment made in their favour. It is to be noticed that by mere termination of tenancy, the tenant does not become a trespasser. His status after the termination of tenancy is that of a tenant holding over. In respect of premises to which the provisions of U. P. Act No. 3 of 1947 applied, the tenant even after termination of tenancy could not be forced to vacate the tenanted premises. The Act provided certain conditions under which alone the tenant could be asked to vacate the accommodation. Thus after the termination of tenancy the status of the tenant became that of a statutory tenant and he became liable to ejectment only when the conditions prescribed for ejectment under the Act were fulfilled. These conditions are prescribed under Section 3 (1) (a) of the said Act. Where those conditions were not fulfilled the landlord was required to obtain permission from the District Magistrate for filing suit for ejectment. The Act did not anywhere prescribe that on termination of tenancy the tenant holding over or the statutory tenant would become liable to pay mesne profits at a rate higher than the rate at which he was paying rent or reasonable annual rent. I am, therefore, of the opinion that the decision of this Court relied upon by the learned counsel for the appellant is of no assistance to him.
10. As against the above decision the learned counsel for the plaintiff-respondent relied upon a single Judge decision of this Court reported in Chiranji Lal v. Kunwar Prasad, (AIR 1963 All 249). In this case it was held that when a tenant refused to vacate the accommodation after his tenancy was terminated he became trespasser and was liable to pay landlord the mesne profits which were to be assessed according to the reasonable market value of the premises. This was also a case of landlord and tenant and has, therefore, no applicability to the facts of the present case. It may also be pointed out that this case is in direct conflict with the Division Bench case referred to above. It appears that the Division Bench case was not brought to the notice of the learned Judge who decided Chiranji Lal's case.
11. The learned counsel for the plaintiff-respondents then relied upon the decision rendered by the learned Judges of the Madhya Pradesh High Court in the case of Shyamacharan Raghubar Prasad Tiwari v. Sheojee Bhai Jairam Chattri, (AIR 1971 Madh Pra 120). In this case relying upon the single Judge decision of this Court the learned Judges of the Madhya Pradesh High Court held that the correct rate of mesne profits against a person whose tenancy had been terminated was market rental value of the property and that controlled or standard rents which are for benefit of a lawful tenant would not be allowed against unlawful possessor. I have already indicated that the single Judge decision was contrary to the earlier Division Bench decision. In the Judgment the learned Judges of the Madhya Pradesh High Court have referred to the single Judge decision as having been given in the case of Chandra Shekhar v. Gopi Nath, (AIR 1963 All 248). Perhaps the reference has been wrongly mentioned by the learned Judges. The proposition relied upon has not been laid down in the case of Chandra Shekhar v. Gopi Nath, but has been laid down in the case of Chiranji Lal v. Kunwar Prasad. The case of Chandra Shekhar is reported in AIR 1963 All 248 while the case of Chiranji Lal is reported in the same volume at p. 249. In view of the Division Bench authority of this Court I am unable to follow the dictum laid down by the learned Judges of the Madhya Pradesh High Court. It may also be stated that the said case is distinguishable on facts also as it was a case between landlord and tenant whose tenancy had been terminated. A tenant whose tenancy has been terminated continues to have certain protections under the Acts relating to control of ejectment. Therefore the principles applicable to cases between landlord and tenant cannot be applied in the case of a person who is a complete trespasser from the very beginning.
12. The next case relied upon by the learned counsel for the respondents is reported in, AIR 1963 SC 1405, Fateh Chand v. Balkishan Pass. The question as to the rate at which mesne profits may be awarded has been dealt with in para 17 of the judgment at pages 1412 and .1413. This was not a case between a landlord and a tenant. On behalf of the person against whom mesne profits were claimed it was contended before their Lordships of the Supreme Court that the mesne profits could not be decreed at a rate more than the standard rent of the property assessed under the Delhi and Ajmer Merwara Rent Control Act of 1947 which was applicable to the property in dispute. On the other hand on behalf of the plaintiff who had claimed mesne profits it was contended that the mesne profits were to be calculated at market rate. Their Lordships did not go into the controversy because there was no evidence regarding the standard rent payable under the Delhi and Ajmer Merwara Rent Control Act. Their Lordships accordingly confirmed the decree which had been passed by the Subordinate Judge which was not based upon standard rent defined under the Act. This authority also is of no assistance to the learned counsel for the plaintiff-respondents inasmuch as the controversy which arose before their Lordships was not decided.
13. The next case relied upon by the learned counsel for the plaintiff-respondents is, Dalhousie Properties Ltd. v. Sooraj Mull Nagar Mull, (AIR 1977 SC 223). This was a case between landlord and tenant. The plaintiff had claimed mesne profits for the period subsequent to the date of termination of tenancy at the present rental value of the premises and not at the rate of rent contracted between the parties. The trial Court had taken the view that the rent payable under the Rent Act should determine the rate of future mesne profits also. Before the trial Court the plaintiffs had tried to bring on record evidence of the existing rent in the locality but opportunity in that behalf was denied to them. The plaintiffs had moved an application for the issue of a commission for the purpose and this application was not disposed of and the suit was decided. On appeal the High Court confirmed the judgment and decree passed by the trial Court. Before their Lordships of the Supreme Court it was urged that the plaintiff was entitled to decree at the rate prevailing in the locality and, therefore, the learned trial Court was in error in not issuing commission and thereby depriving the plaintiff-appellant of opportunity of proving the prevailing market rent in the locality. Their Lordships of the Supreme Court allowed the appeal observing that the plaintiff was entitled to prove the existing rent in the locality. The controversy that was raised, whether the existing rent would determine the future mesne profits or the rent permissible under the Rent Act would govern the future mesne profits was not specifically decided but it is obvious that if their Lordships had taken the view that future mesne profits were to be payable in accordance with the rent payable under the Rent Act there was no question of allowing the appeal and remanding the case to the trial Court in order to afford opportunity to the plaintiff to prove the existing rent in the locality. This judgment, therefore, does indicate that their Lordships of the Supreme Court were of the view that the rent permissible under the Rent Act would not necessarily determine the rate of mesne profits and that the present rental value of the property would determine the rate at which mesne profits were to be awarded to the owner of the building against a person in wrongful possession thereof.
14. Similar question arose before me in Second Appeal No. 287 of 1973 (Mst. Guriya v. Sheoraj Singh) and I had taken the view that a person who occupies an accommodation and obtains an allotment under which is subsequently cancelled is liable to pay mesne profits in accordance with the present rental value of the property. To hold otherwise would be to give an unauthorised occupant or trespasser an advantage over an authorised occupant. Section 5 (1) of the U. P. Act 3 of 1947 provides that the rent payable for an accommodation to which the Act applied shall be such as may be agreed upon between the landlord and the tenant. There is no provision in the Act prescribing that the agreed rent cannot exceed the reasonable rent defined under Section 2 (f). Where the landlord and the tenant are unable to agree upon the rate of rent either of them can move the District Magistrate under Section 3-A for declaration of the reasonable rent. The rent declared or determined under Section 3A is subject to the result of the suit, if any, filed either by the landlord or the tenant under Section 5 (4); this is provided under Sub-section (3) of Section 3-A. In suit under Section 5 (4) it is permissible for the landlord to allege and prove that the reasonable rent for the accommodation is inadequate and if the Court finds that the allegation is correct, then subject to the conditions prescribed under the sub-section the Court can enhance the rent. It would thus be seen that under the provisions of the Act it is permissible and possible for the landlord to get rent at a rate higher than the reasonable rent defined under Section 2 (f). In fact it is possible for the landlord to get rent even at the rate prevailing in the locality for similar accommodation which may be much more than the reasonable rent denned under the Act. If this is permissible under the Act where the relationship of landlord and tenant has come into existence, I see no reason to confine the owner of a building to reasonable rent defined under Section 2 (f) while claiming mesne profits against an unauthorised occupant or trespasser. Obviously there is no question of any agreement taking place between an owner and a trespasser or an allottee whom the owner does not accept as his tenant and whose allotment order he successfully challenges. The remedies provided under the Act for claiming rent at a higher rate than the reasonable rent prescribed under the Act also cannot be invoked by the owner because those remedies are available only when the relationship of landlord and tenant exists either by virtue of contract or by virtue of statute. To grant an unauthorised occupant an advantage over authorised occupant would be most unfair to the owner of the property and would also be against public policy and fair play.
15. In view of the above I am of the opinion that the plaintiff-respondents are entitled to mesne profits from the appellant in accordance with the rental value of the property during the period the defendant-appellant remained in occupation of the property. It has now, to be seen whether there is any reliable evidence on record to prove the rental value of the property, during the period the appellant remained in occupation of the property. On behalf of the plaintiff-respondent one of the plaintiffs namely Smt. S.K. Islam entered the witness box as P. W. 4. In her examination-in-chief she stated that the property in dispute could be let out at Rs. 700/- or Rupees 800/- per month when the defendant illegally occupied the same. She further stated that houses in the neighbourhood were let out. She mentioned in respect of two such houses only. One of such houses was owned by Sri A. B. Tantra and another by one Mr. Sinha. In respect of half portion of Mr. Tantra's house she stated that the same was let at Rs. 450/- per mensem. This half portion was stated to be containing three big rooms and one small room and a small kitchen. The upper flat of Sri Sinha's house was said to have been let out at Rs. 700/- per monsem. This flat was said to contain 4 house and a kitchen. Portions of another house known as Mustafa Lodge were also alleged to have been let out. One portion was alleged to have been let out at Rs. 700/- per month. Neither Sri Tantra nor Sri Sinha nor the owner of Mustafa Lodge was produced in the witness-box. The tenants to whom the accommodation had been let out were also not produced in the witness-box. The receipts for payment of rent by them were also not summoned. Her cross-examination revealed that the construction of Sri Tantra's house started in the year 1940 and was completed in the year 1951. Thus Sri Tantra's house was a new construction and was not subject to the provision of U. P, Act No. 3 of 1947. The other two houses which she had referred to in her examination-in-chief were admitted by her to have been constructed even after Sri Tantra's house. Her cross-examination further revealed that the accommodation which she had described in the houses had been disclosed to her by Sri Tantra or Sri Sinha and t hat she had herself not seen the accommodation which had been let out at the rents alleged by her. Her source of knowledge regarding the rent was also either by Sri Tantra or Sri Sinha. This evidence was obviously hearsay and could not be relied upon. In respect of the house itself she stated that the same had never been let out before. She did not claim to have let out any other accommodation on the basis of which it may be possible to hold that she could be a competent witness to depose with regard to the prevailing rent in the locality. Thus the evidence of P. W. 4 Smt. S.K. Islam does not prove the prevailing rent in the locality. The next witness upon which reliance was placed by the learned counsel for the plaintiff respondent is Hukum Bahadur Singh (P. W. 2). This witness claimed to have contacted the defendant appellant for taking the premises in question for accommodating the marriage party (Barat) which was to come in connection with the marriage of his daughter in May 1964. According to this witness the appellant demanded Rs. 500/- as charges for the slay of the marriage party. This demand appeared to the witness to be excessive and he, therefore, did not take the premises for the purposes. He gave details of the accommodation and stated that in 1964 the said accommodation could be let out for Rs. 700/- or 800/- per month. He also stated that Rs. 500- was demanded for four days. He deposed that when he told the appellant that the demand was on the higher side the appellant told him that Rs. 500/- was the rate at which it was given previously for similar purpose. In cross-examination this witness admitted that he did not know the year of construction of the building and that he never rented any house in 1964 or 1970 on Rana Pratap Marg. He, however, stated that he had his own house at Mahanagar which he was letting out. On the basis of this letting out of his Mahanagar house he claimed that he could assess the rent of the property in dispute in the year 1964. This witness appears to be an entirely got-up witness and his testimony cannot be relied upon. It may further be pointed out that charges for the stay of Barat are special charges and cannot be equated to rent prevailing in the locality. As such letting value of the property in dispute deposed to by this witness cannot be accepted.
16. In view of the above, although, the legal position has been decided in favour of the plaintiff respondents, they will not be entitled to rent at the present rate for want of evidence. In the absence of evidence relating to rent prevailing in the locality there is no alternative but to decree the respondents suit on the basis of the evidence furnished by the assessment for the year 1940 (Ex. A-l). On behalf of the appellant it was contended that the said assessment related to the entire house. The rental value of the property as mentioned in Ex. A-l is Rs. 100/- per month. The learned court below found that the entire house came in possession of the appellant. Thus the mesne profits will have to be determined on the basis of the rental value as disclosed in Ex. A-l for the entire accommodation. Under Section 2 (f) of U. P. Act III of 1947 reasonable annual rent has been defined as follows:--
'2 (f). -- 'reasonable annual rent' means as respects any accommodation which is separately assessed its municipal assessment plus 25 per cent, thereon, and if the accommodation is only a part of a building which is not separately assessed, the proportionate amount of the municipal assessment of such building plus 25% thereon.'
17. Ext. A-l is of the year 1940 indicates that the accommodation in dispute had been constructed before July 1, 1946 (sic). Since Ex. A-l is in respect of the entire house in dispute and I have already held that entire house came in possession of the appellant, the reasonable annual rent has to be determined in accordance with clause (1) of Section 2 (f). Applying this clause 25 per cent, is to be added to Rs. 100/-. Thus the reasonable monthly rent of the accommodation would be Rs. 125/- per mensem. The plaintiffs filed suit on 23-12-1970. They would be entitled to mesne profits only for the period of three years preceding that date. Thus, the mesne profits can be decreed only for the period 23-12-1967 to 23-12-1970 apart from the pen-dente lite and future mesne profits. Mesne profits for the last three years at the rate of Rs. 125/- per month come to Rs. 4500/-.
18. In view of the above, the appeal is allowed and the judgment and decree of the court below is modified. The plaintiff respondents claim for mesne profits would stand decreed for the sum of Rs. 4500/- only. The plaintiffs respondents will be entitled to pendente lite and future mesne profits till the date they obtained possession of the premises in question at the rate of Rs. 125/- per month on payment of additional court-fee on the execution side. Rent of the decree granted to the plaintiff respondents by the learned trial court is not disturbed. In the circumstances of the case the costs of this appeal shall be easy. The costs of the trial court shall be proportionate to the success of the plaintiff-respondents.