A prior possessor has a possessory title to the land and is entitled to possession and damages for use and occupation against a subsequent possessor.

( 1 ) A large plot of land measuring 1304 square yards was leased out by the Delhi Improvement Trust at the rate of Rs. 5 per 100 square yards per month to Messrs. Shanti Parkash Bishan Singh in 1944. The lessees between themselves seem to have divided the plot and occupied separate halves of it. The lease was cancelled in 1944. A suit for ejectment and recovery of arerars of rent was filed by the Improvement Trust against Shanti Parkash and Bishan Singh and was decreed on 29-5-1946. The decree for ejectment was not, however, actually executed and the judgment debtors continued in actual possession. Shanti Parkash died on 12-5-1950. Jia Rani. his daughter was his legal representative. Out of the land in the possession of Shanti Parkash some area was in the possession of one Ladha Ram. After the death of Shanti Parkash, Jia Rani brought Suit No. 162 of 1951 for ejectment and recovery of arrears of rent against Ladha Ram on the basis of tenancy. That suit was, however, dismissed on 2-6-1953 on the ground that the tenancy had not been proved. An application for permission to sue in forma pauperis against Ladha Ram. Phiraya Lal and Jagan Nath was thereafter made by Jia Rani on 1-2-1954 under Order XXXIII rules 1 and 2 Civil Procedure Code for the possession of an area of about 110 square yards in the occupation of the defendants out of the half of the bigger plot which was in possession of Shanti Parkash as a lessee of the Improvement Trust. Jia Rani claimed the right to sue for possession as the legal representative of Shanti Parkash. She claimed damages for use and occupation at. the rate of Rs. 100. 00 per month for three years, namely, from 1-2-1951 to 1-2-1954. She was eventually allowed to sue in forma pauperis and the suit was registered as Suit No. 338 of 1961.

( 2 ) THE suit was defended mainly on the ground that the site in dispute was a part of the land belonging to the Delhi Improvement Trust who alone could demand possession thereof from the defendants. The grant of lease of this land by the Improvement Trust to Shanti Parkash was denied. Alternatively, the said lease had come to an end and neither Shanti Parkash nor his daughter Jia Rani had, therefore. any locus standi to sue the defendants for possession and damages for use and occupation. The suit was also said to have been barred by res judicata by the decision inter partes in Suit No. 162 of 1951 referred to above.

( 3 ) THE trial Court found that the suit was not barred by res judicata inasmuch as in the previous suit Jia Rani had based her claim on tenancy while in the present suit she based her claim on possessory title independent of any tenancy. The trial Court further held that Jia Rani was the legal heir of Shanti Parkash and had possessory title to the site in dispute. The defendants were sheer trespassers. They could not resist the suit even though the ownership of the site had vested in the Delhi Improvement Trust. The trial Court also decreed damages for use and occupation at the rate of Rs. 5. 00 per 100 square yards per month. The defendants have appealed against the above decision and the plaintiff has filed cross-objections claiming enhancement of damages for use and occupation. The only questions for decision arising out of the arguments in this appeal and the cross-objections are, however, as follows:-

(1) Is Jia Rani respondent entitled to possession and damages for use and occupation against the appellants ? and (2) If so, at what rate ?

( 4 ) THE lease granted by the Delhi Improvement Trust to Shanti Parkash and Bishan Singh came to an end when a decree for ejectment in favour of the Improvement Trust was passed against Shanti Parkash and Bishan Singh. Their possession over the whole of the plot which had been formerly leased to them was in the capacity of tenants holding over within the principle underlying section 116 of the Transfer of Property Act. As the ex-landlord did not assent to their continuing in possession, the t