SAHGAL, J. - (1.) THIS is a defendants appeal against whom a suit for a sum of Rs. 11,000/- by way of compensation for use and occupation has been decreed by the Civil Judge of Kheri. A decree for a sum of Rs. 1,000/- has also been passed against the appellant for special costs under Sec. 35-A of the Code of Civil Procedure.
(2.) THE dispute relates to a piece of land 200 x 200 situated in Chandan Chowki, Sonaripor Range in the North Kheri Forest Division. The State of U.P., respondent No. 1, s the proprietor of the reserved forest wherein the land lies. The defendant-appellant erected a paddy husking mill in that land for which purpose he had taken it. The land was originally taken for a sum of Rs. 100/- as rent for one year from the 1st of March, 1947. A document was executed for the purpose, copy of which is Ext. 3 at page 39 of our paper book. A subsequent lease for the same sum of Rs. 100/- was executed on the 10th of June, 1948 for one year beginning the 10th on March, 1948. This document is Ext. 4 and is at page 42 of our paper book. Thereafter though the defendant continued to remain in possession of the land, it took sometime before the terms were actually settled. The Under Secretary to Government in the Forest Department wrote a letter to the Chief Conservator of Forests saying that the Government did not agree to the renewal of the existing leases or to the grant of fresh leases at the nominal rent of Rs. 100/-. On the other hand, normal procedure of inviting tenders was directed to be followed and highest bid offered was to be referred to the Government for sanction in case any concession was proposed, full reasons for justifying it were to be intimated to the Government. As to the terms as far allowed to the lessees - there were other lessee also of other plots for similar purposes - it was pointed out that they were much too favourable and should be revised. The Chief Conservator was asked to submit to Government proposals for changes in these terms as may be fair to both the parties. This letter is dated the 8th of November, 1949 and is Ext. 10 at page 53. From this letter it appears that even though the lease had not been renewed for the year 1940-50, the lessee continued to be in possession of the land. In the meantime the Regional Food Controller seems to nave come to know about this letter of Government and on the 3rd of December, 1949 he wrote a letter to the Conservator of Forests, Eastern Circle, saying that as Chandan Chowki and Gauri-phanta this was the other area within which similar mills were allowed to be erected were very important centres for rice procurement and rice mills had been working in these places for several years, he would suggest for the issuing of interim permits to rim the mills to those that applied to him if they had been working last year. He promised that the mills would give an undertaking in writing that they would abide toy the new lease sanctioned by the department. Rice procurement was likely to suffer if there was any delay in the running of the rice mills. A copy was forwarded to the Divisional Forest Officer, North Kheri also (vide Ext. 11, page 55). On receiving this letter the Divisional Forest Officer wrote a letter on the 12th of December, 1949 to the Conservator of Forests that the lease of the defendant-appellant would expire on the 18th of March, 1950 and in view of the recommendation of the Regional Food Controller he was of opinion that the leases of all the three existing mills in Binding that of Zahoor Ahmad, the appellant, be renewed on payment of Rs. 1,000/- each for the period ending July 15, 1950 (Ext. 9, page 51). In the meantime, it appears, Zahoor Ahmad gave an undertaking to the Divisional Forest Officer on the of December, 1949 that if he was given permission to run his mill till the 15th of July, 1950, fee would pay the rent and abide by the terms of the renewed lease as might be sanctioned by the Government in the Forest Department. (Ext. 7, Page 49). The Divisional Forest Officer thereafter wrote a letter on the 8th of March, 1950 advising the defendant-appellant to deposit a security of Rs. 1,500/- forthwith, failing which he would not be allowed to run the mill beyond the 18th of March, 1950 and in case the amount was deposited. He would be allowed to run the mill up to the 15th of July, 1950 and would have to pay the rent for the year of an amount which may be demanded by the Government (Ext. A-6, page 67). This letter was written in reply to a letter sent on behalf of the defendant along with a cheque for Rs. 100/- to the Divisional Forest Officer. That Cheque also was returned. The defendant seems to have continued to occupy the land and we may take it that he agreed to abide by the decision of the Government as to the amount of the rent that may have to be paid for his continuation in possession till the 15th of July, 1950. By means of a D. O. the Government agreed to grant the leases Co the proprietors of the existing rice mills including the defendant for the year ending the 10th of July, 1950 on a rental of Rs. 1,000/- per annum each (Ext. 8 page 50). Thus the lease that was originally started on the 1st of March, 1947 continued up till the 15th of July, 1950. For the first two years the rent was Rs. 100/-, per annum while for the third year which was extended unto the 15th of July, 1950 it was agreed to at Rs. 1,000/-. The present suit relates to the period after the 15th of July, 1950. According to the plaint allegations, after the 15th of July, 1950 the appellant was asked to vacate the premises taut he did not do so, at the same time assuring the officers all the time that He would pay the rent as fixed by the Forest Department. The Government fixed the annual rent at Rs. 3,000/- per annum after taking into consideration the prevailing conditions and peculiar circumstances in that area and allowed the defendant to run his existing husking mill for the years 1950-51, 1951-52 and 1952-53. He was given an option that if he did not agree to pay Rs. 3,000/- per annum he could pay Rs. 1,800/- only with a clear condition that he would vacate the premises after the season of 1950-51. The defendant did not pay any amount towards the annual rent nor did he vacate the premises with the result that a notice was served on him to pay the annual rent for the years 1950-51 and 1851-52 on the 29th of October, 1952, the total coming to Rs. 6,000/- and vacate the premises. On failure to pay the amount and vacate the premises he was told that he would be liable to pay Rs. 5,000/- annually as rent for future use and occupation of the land. As the amount had not been paid, the suit was filed for the recovery of a sum of Rs. 3,000/- for the year 1950-51 and Rs. 3,000/- for the year 1951-52 and of Rs. 5,000/- for the year 1952-53, the total coming to Rs. 11,000/-. 3a. The defence was that though a notice was given by the plaintiff for charging enhanced rent, it was not agreed to by the defendant. The plaintiff attempted to enhance the rent which enhancement was most unreasonable and unjust and the defendant never agreed to pay any higher rent than what was originally fixed. The lease had terminated on the 15th of July, 1950 and for the period thereafter the plaintiff could at the most claim reasonable amount by way of damages for the use and occupation of the land. It was also pointed out that the plaintiff having assented to the defendants continuing in possession after the termination of the lease, the defendant would in law be deemed to be holding over under the same terms and conditions as the original lease. The plaintiff was, according to the assertion on behalf of the defendant, entitled to not more than Rs. 100/- a year which the defendant was always willing to pay and which was a fair valuation for the use and occupation of the Land.
(3.) AT the time of the settlement of the issues when statements on behalf of the parties were recorded under Order X of the Code of Civil Procedure the District Government Counsel on behalf of the plaintiff gave a statement to the effect that the defendant was not a tenant by holding over and there was no renewal of the lease after July, 1950 and that the claim even for the sum of Rs. 6,000/- for the years 1950-51 and 1951-52 was for use and occupation of the land by the defendant. Thus the entire suit ultimately was one for use and occupation of the land by the defendant.;