JUDGMENT

Satish Chandra, J. - The plaintiff is the appellant. The suit was for recovery of mesne profits and damages. The plaintiff is the owner of the premises. He alleged that the defendants obtained an order of allotment on 3rd November, 1948, and in pursuance thereof took possession of the house on 5th November, 1948. The possession of the promises was ultimately restored to the plaintiff on 4th June, 1954. He claimed Rs. 6,700/- as mesne profits for this period of five years and seven months at Rs. 100/- per month. He also alleged that the defendants had damaged the property and removed certain materials and fixtures, and claimed Rs. 2,590/- as damages on this score. In defence, it was pleaded that possession was taken in pursuance of an order of allotment, on the basis of which by operation of law, a relationship of landlord and tenant came in existence between the parties. No rent was agreed upon between the parties. Consequently, the plaintiff was entitled to no more than the reasonable rent due under the U.P. (Temporary) Control of Rent and Eviction Act, which would be Rs. 600/- per annum. It was claimed that possession of the property was surrendered back to the plaintiff on 26th February, 1954. The defendants had not damaged the property or removed the fixtures. As a parting shot, it was claimed that the suit was barred by time for the period beyond three years of its institution.

2. The courts below found that though the defendants took possession in pursuance of an order of allotment, yet no relationship of landlord and tenant came into existence. The possession of the defendants was that of a trespasser. A suit for the recovery of compensation from a trespasser would be governed by Article 39 of the Limitation Act. The claim for recovery:of compensation for a period more than three years prior to the suit was barred by time. The suit was instituted on 24th January, 1955. Consequently, the claim for a period prior to 24th January, 1952, was barred. The allegations that the defendants had damaged the property and removed the materials etc. were disbelieved. It was found that possession was restored to the plaintiff on 5th March, 1954. The defendants were held liable for mesne profits to the plaintiff for the period 24th January, 1952, till 5th March, 1954, at the rate of Rs. 100/- per month. The suit was, consequently, decreed for Rs. 2,540/-. The findings and the decree were confirmed in appeal.

3. In the present appeal, Mr. T.N. Sapru, appearing, for the appellant, urged that the status of the defendants during the period of their occupation of the premises could not in law be taken as a trespasser and the courts below ought to have proceeded on the basis that they were liable to pay compensation as statutory tenants. It was urged that the defendants having taken .possession under the directions of the Rent Control and Eviction Officer contained in the order of allotment, and having remained in possession throughout in pursuance thereof, could not in law be treated as having committed a trespass on the plaintiff's immovable property. Article 39 of the Limitation Act would consequently, be not applicable. Article 120 of the Limitation Act which prescribes a period of six years would be applicable and the entire claim for mesne profits was within time. For the respondents, it was urged that the order of allotment was actually cancelled on 7th April, 1949. The defendants' possession thereafter could not be referable to the order of allotment and was in any event merely as a trespasser. Before dealing with the question as to the status of a person in possession in pursuance of an order of allotment, it will be feasible to clarify the facts and to see whether the possession of the defendants was throughout in pursuance of the order of allotment, as claimed by the plaintiff.

4. On the application of the defendants, the Allotting Authority, Agra, under the U.P. (Temporary) Control of Rent and Eviction Act, 1947 on 3rd No