DEOKI Nandan, J. - (1.) This is a plaintiff's Second Appeal in a suit for ejectment, recovery of arrears of rent and damages at the rate of Rs. 50/-per month amounting to Rs. 588/- up to the date of the suit and pendent lite and future at the same rate until the date of actual ejectment of the defendants from one room and Dalan on the south and eastern side of the plaintiff's temple. The plaintiff is described as deity of Mahadeoji in the Mandir of Somnathji in the village of Kalyanpur at Kanpur, through Baba Jamuna Puri Mahant Gaddidhar and manager, Somnathji Ka Mandir Kalyanpur, Kanpur. Origi nally, the Nagar Mahapalika of the City of Kanpur was the only defendant but later on Sri Vakiluddin Kidwai, Superintendent of the said Nagar Maha palika was added as the second defendant. It is not disputed that the accom modation described above was occupied by the Mahapalika for the purposes of running a primary school. The defense of the Mahapalika was that Baba Jamuna Puri Mahant Gaddidhar had no right to sue. The plaintiff's title to the property was denied. It was asserted that there was no agreement between the parties for payment of rent that, in any view, the amount of Rs 50/- per month was excessive and the school was shifted from the accommodation on the 19th September 1963. That date was after the institution of the suit. A further plea was sought to be raised by an amendment of the written statement that the suit is bad for want of notice under the U. P. Nagar Mahapalika Adhiniyam. Vakiluddin who was added as the second defendant stated that the Nagar Mahapalika passed a Resolution No. 213 on the 12th May, 1961 that a school be opened at Kalyanpur, and, in pursuance of the said resolution he, that is Vakiluddin Kidwai, went to Kalyanpur to select a place where the school could be started whereupon he found some vacant rooms in the plaintiffs temple compound, but Baba Jamuna Prasad Mahant created a scene and threatened that he would not allow any body to open any school unless his permission was sought and, that, in order to satisfy the ego of the said Mahant and in order to avoid a scene, his formal permission was sought and obtained before opening the school. Sri Valdluddin said that he had no authority to enter into any contract or lease on behalf of the defendant No. 1. In the replication which was filed, it was not said that the school of the Nagar Mahapalica of the City of Kanpur continued to occupy the accommodation. But in reply to the defendant's denial of the plaintiff's title, it was asserted that the plaintiff is the owner and landlord of the premises known as Baba Somnath Ji ka mandir, kalyanpur. It was also asserted that the temple did not belong the Nagar Mahapalika, and it was wholly wrong to say that the building was transferred by the District Board, Kanpur, to the Nagar Mahapalika on the 23rd February, 1960. In fact' the plea raised by the first defendant was that hng in dispute was transferred by the Development Board Kanpur to the Nagar Mahapalika, Kanpur, and not that it had been transferred by the District Board Kanpur, to the Nagar Mahapalika, Kanpur. A slip (Ext. 5) has been filed which reads as under:- "nagar Mahapalika ke Junior High School jo Kalyanpur mein Khola gaya hai Jo Ki Sri Baba Somnath Ji ke Mandir mein hai ek saal tak Jagega, aur jab Mahapalika apna prabandh bana legi to School vahan chala jaega. Is Bhawan ke kiraya ke sambandh main Uchch Adhikariyon se sampark asthapit kiya jaega aur unke nirnay ke anusar kiraya nirdharit hoga. School lagane ki ijazat Jamuna Puri Mahant se li gai. Seal Shri Baba Somnath Ji Ka Mandir, Mahant Bansipuri Gaddidhar, Kalyanpur (Kanpur ). Sd-/vakiluddin Kidwai, Nagar Mahapalika, Kanpur. 11-7-1961 The following were the issues framed by the trial Court:- " (1) Whether any contract of tenancy was entered into by the parties ? If so its effects? (2) Whether the suit is within time ?" " (3) To what rent or damages is the plaintiff entitled ?" Whether the suit is bad for multifariousness as alleged ?" (5) Whether the defendant No. 2 is liable to pay the damages ? If so at what rate ?" " (6) Whether the suit as framed is not maintainable as alleged in para 13 of the W. S. of defendant No. 2 ?" On issue No, 2, the trial Court found the suit to be within limitation, on issue No. 4 that it was not bad for multifariousness; on issue No. 1 that there was no contract of tenancy between the parties: on issue No. 6, that in the absence of any agreement for payment of rent, the suit for recovery of arrears of rent must fail: on issue No. 5, that the defendant No. 2 was not liable to pay any damages to the plaintiff; and on issue No. 3, that the suit for eject ment had become in fructuous: inasmuch as, admittedly, the premises has been vacated, and the plaintiff is not entitled to recover any amount towards the arrears of rent or even as a damages. Lastly, it was found that damages could not be awarded to the plaintiff even on the ground of ownership as the same was denied, and. the scope of the suit was limited. According to the trial Court, no decree for damages can be passed, unless the question of title was decided, which could not be done in the present suit. In the result, the trial Court dismissed the suit. On appeal, the first point raised was whether there was a contract of tenancy between the plaintiff and the Nagar Mahapalika. The lower appellate Court held that it could not be held that the Nagar Mahapalika became the plaintiff's tenant no payment of Rs. 50/- per month as rent. The next contention raised before the lower appel late Court was whether the plaintiff was entitled to get a decree at the rate of Rs. 50/- per month by way of damages for use and occupation. On this point also, the finding of the lower appellate Court was against the plaintiff. It observed that even though the Nagar Mahapalika denied the plaintiff's title, the plaintiff did not consider it prudent to get the suit converted into a title suit. The lower appellate Court dismissed the appeal with these findings. Mr. S. N. Agarwal, who appeared for the plaintiff appellant before me, contended that it was undisputed that the premises were occupied by the Nagar Mahapalika from 11th July, 1961 to 19th 'september, 1962, and whether a contract of tenancy was proved or not, the Nagar Mahapalika was bound to make compensation to the plaintiff for the use and occupation of the accom modation on the principle enunciated in Section 70 of the Indian Contract Act. Mr. S. N. Agarwal did not dispute that there could be no contract with the Nagar Mahapalika in the absence of a written instrument executed in the pre scribed manner, and, therefore, he could not contend that there was a contract of tenancy. Nevertheless, the Nagar Mahapalika was bound to make compen sation to the plaintiff, for it had undoubtedly used the accommodation, and the plaintiff never intended to give it to the Nagar Mahapalika gratuitously. Learn ed counsel relied upon the decision of the Supreme Court in Panna Lal v. Dy. Commissioner Bhandara, ( (1973) 1 S. C. C. 639), in support of the above proposition. He also con tended that although the contract for payment of Rs. 50/- per month as rent could not be said to be proved in accordance with law in the absence of a written instrument in the prescribed form to that effect, it was clear from the material on the record that, that was the rate agreed to by the defendant No. 2 who is responsible officer of the Nagar Mahapalika. Mr. Lalji Sinha, who appeared for the defendant Nagar Mahapalika in this case, did not contend that the Nagar Mahapalika was not bound to make compensation for the use and occupation of the accommodation for the purposes of the school during the period in which it was actually occupied by it, but urged that the plaintiff had no right to sue as it was not proved that the accommodation belonged to the deity, and Baba Jamuna Puri was its duly appointed shebait. Mr. Lalji Sinha also raised the point that the suit was barred for want of notice under Section 571 of the Nagar Mahapalika Adhiniyam. Having heard learned counsel for the parties, I find that the plea that the suit was bad for want of notice under Section 571 of the U. P. Nagar Maha palika Adhiniyam, though raised by amendment of the written statement, does not appear to have been pressed too strongly at the hearing, for no issue was raised on that point. Moreover, it appears to me that in view of the Full Bench decision of this Court in Antarim Zila Parishad v. Shanti Devi (1965 A. L. J. 221.), the plea of want of notice cannot be sustained on the language of Section 571 of the Nagar Mahapalika Adhiniyam. It cannot be said that the suit relates to any act done or purported to be done in pursuance or execution or intended execution of the Nagar Mahapalika Adhiniyam or in respect of any alleged neglect or default in the execution of the Act. The two points, that remain for determination in this Second Appeal, therefore, are whether a decree for recovery of compensation for the use and occupation of the accommodation by the defendant Nagar Mahapalika for the purposes of its school during the period 11th July, 1961 to the 19th July, 1963 Could be passed in favour of the plaintiff, and, if so, at what rate. I do not agree with the trial Court or the lower appellate Court that it was necessary for the plaint if to have converted the suit into a title suit before it could get relief by way of compensation for use and occupation of the accommodation on the principle contained in Section 70 of the Indian Contract Act. Nevertheless, the title of the plaintiff was expressly denied and even if it is assumed that the deity installed in the temple of Somnath ji at Kalyanpur, Kanpur is the owner of the accommodation, there is no satisfactory evidence on the record to show that Baba Jamuna Puri was the duly appointed Mahant of the shebait of the temple entitled to maintain the suit on behalf of the deity. The only evidence on this point is of Baba Jamuna Puri himself and all that he said was that he was the Pujari and Sarwarakar of the temple, that the temple was constructed by his ancestors, and that his father's name was Bansi Puri and grand father's name was Dhanapuri. Under the circumstances, it appears proper to set aside the judgments and decree under appeal and to remand the suit to the trial Court with the direction that the trial Court shall enquire into the question whether Baba Jamuna Puri was and continues to be the Mahant and/or Shebait of the deity of Mahadeoji installed in the temple of Somnathji at Kalyanpur Kanpur, and if so, what is the reasonable rate not exceeding Rs. 50/. per month, at which the Nagar Mahapalika of the city of Kanpur must make compensation to the plaintiff for the occupation of the accommodation in the temple premises for the purpose of its school from the 11th July 1961 to the 19th September, 1963. It shall be open to the parties to lead such evidence as may be necessary on these points only. The trial Court will pass a decree or dismiss the suit in accordance with the findings arrived at by it. The costs shall abide the result. I may here note that although the appeal in this Court was sought to be filed in forma pauperi's the amount of Rs. 181-75 p. was paid as Court fees on the rejection of the application for leave to appeal in forma paupers. Since the decree under appeal has been set aside and the suit remanded to the trial Court, I direct that a certificate under Section 13 of the Court Fees Act shall be granted to the appellant authorizing him to get a refund of the Court fee paid in this Court. .;