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. 5166 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. 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 be decreed on the condition of payment of requisite court-fee. 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 U. 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 earning profits 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.
(3.) 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 that 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. 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, them 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.;