JUDGMENT S.S. Dhavan, J. - This a defendant's second appeal from the decision of the 1st Civil Judge, Kanpur, decreeing the plaintiff-respondent's suit under Or. XXI, R. 103, C.P.C. for establishing his title as a tenant of a house situate in Kanpur. The facts are these. The defendant Peer Bux is the owner of the house and his previous tenant was one Mewal Das. On 13th May be obtained a decree for ejectment and recovery of arrears of rent against Mewal Das. On 30th May, 1953, Karam Chand the plaintiff in the present suit obtained an order of allotment from the Rent Control arid Eviction Officer, Kanpur, directing the landlord to let the house to him. On 2nd June, 1953 he took possession in pursuance of that order. Meanwhile, the landlord Peer Bux executed the decree for ejectment and arrears of rent against Mewal Das and this brought him into conflict with the rights of the new allottee - the plaintiff - who was dispossessed in the execution of the decree. He moved an application under Or, XXI, R, 100, C.P.C., complaining that he had been wrongfully dispossessed. The court rejected this application and the plaintiff thereupon filed the present suit under R. 103 to establish his claim to the possession of the house. He alleged that Mewal Das had vacated the house before the execution of the decree and the house was vacant when he applied for allotment. He asked for a declaration of his title as tenant of the house in dispute and for recovery of possession, but he gave up the second relief for possession during the hearing of the suit. The landlord Peer Bux, the defendant resisted the suit on the ground that the allotment in favour of the plaintiff Karam Chand was illegal as the house was not vacant and Mewal Das was still in possession. He alleged that Karam Chand obtained the allotment fraudulently in collusion with Mewal Das. The landlord Peer Bux, the defendant resisted the suit on the ground that the allotment in favour of the plaintiff Karam Chand was illegal as the house was not vacant and Mewal Das was still in possession. He alleged that Karam Chand obtained the allotment fraudulently in collusion with Mewal Das. The trial court held that the house was vacant on the date when Karam Chand obtained the allotment order and took possession of the house and rejected the defendant's version that Mewal Das was in possession at the time, but it dismissed the plaintiffs' suit on the ground that it was barred by the proviso to Sec. 42 of the Specific Relief Act because the plaintiff having given up the relief for possession was not entitled to a mere declaration of his title. On appeal by the plaintiff, the learned Civil Judge concurred in the finding that the plaintiff Karam Chand became a tenant of the house under a valid allotment order, but disagreed with the view of the trial court that the suit was barred under the proviso to Sec. 42. He held that it is not necessary in a suit filed under Or. XXI, R. 103 to ask for consequential relief which is implicit in the suit itself. Accordingly he allowed the appeal and decreed the plaintiff's suit with costs. The defendant has now come to this Court in second appeal. 2. Mr. M.H. Beg learned counsel for the appellant who argued this appeal with his usual thoroughness urged the following points in support of it. First, the view of the lower appellate court that the plaintiff derived a valid title of tenancy under the allotment order of 30th May 1953 is erroneous as a tenancy cannot be created by any allotment order but only by agreement between the landlord and the tenant, and there was no evidence of such an agreement between the plaintiff and the defendant. On the contrary the evidence disclosed that the defendant never wanted the plaintiff as his tenant and succeeded in getting the allotment order of 30th May cancelled by the Rent Control and Eviction Officer, Secondly, Mr. Beg argued that the view of the lower appellate court that the plaintiff's suit for a declaratory relief was not barred by Sec. 42 of the Specific Relief Act is erroneous. Beg argued that the view of the lower appellate court that the plaintiff's suit for a declaratory relief was not barred by Sec. 42 of the Specific Relief Act is erroneous. Thirdly the allotment order in favour of the plaintiff was invalid as the Rent Control and Eviction Officer had no power to allot a part of the accommodation. Lastly, the allotment order of 30th May barring been set aside, the plaintiff lost all rights to the possession of the house and his suit should have been dismissed. 3. Mr, R.L. Anand learned counsel for the respondent argued in reply that the bar of Sec. 42 of the Specific Relief Act does not apply to a suit wider Or. XXI, Rr. 63 and 103, C.P.C. each of which confers a special right on a person whose application under R. 58 or 100 as the case may be, has been rejected. He also raised a preliminary objection against the other arguments of Mr. Beg on the ground that these had not been raised during the trial and should not be entertained in second appeal as they involved mixed question of law and fact. 4. I have heard both learned counsel at some length. Mr. Beg's first argument is that the plaintiff cannot claim to be a tenant merely on the basis of an allotment order which by itself could confer no rights on him. This plea was not raised by the defendant during the trial. Mr. Beg relied on a few sentences scattered all over the defendant's written statement in an attempt to show that the pica was taken. I have perused the written statement and do not agree with learned counsel that any such plea was raised. I agree with Mr. Beg that an allotment order by itself does not confer any tenancy which is created only when the landlord in pursuance of the order admits the nominee of the District Magistrate to tenancy. Mr. Beg vehemently argued that free consent of the parties is an essential element of a contract, but as the defendant refused to accept the plaintiff as a tenant, he never acquired the rights of a tenant. Mr. Beg pointed out that the plaintiff himself had stated in the plaint that he became a tenant by virtue of the allotment order of 30th May, 1953, and did not allege that there was any agreement of tenancy. Mr. Beg pointed out that the plaintiff himself had stated in the plaint that he became a tenant by virtue of the allotment order of 30th May, 1953, and did not allege that there was any agreement of tenancy. Learned counsel's argument is ingenious or ingenuous, but on closer scrutiny. I find little substance in it. It is true that under the U.P. Control of Rent and Eviction At the District Magistrate has been given no power to create a tenancy which is created only by agreement between the landlord and the tenant, express or implied. An implied agreement is one which can be inferred from the conduct of the parties, and while inquiring whether such conduct resulted in a contract enforceable at law, the Court will take into consideration the custom and established practice in the locality. In the case of tenancies which arise in pursuance of an allotment order passed under Sec. 7 of the Control of Rent and Eviction Act, the established practice in this State of which the Court can take judicial notice in view of hundreds of cases already decided by it, is as follows: When the accommodation falls vacant, the District Magistrate (or the R.C. and E.O.) issues a direction to the landlord to let it to a person nominated in the order. Armed with this order, the "allottee" obtains possession of the accommodation and starts paying rent to the landlord. In practice, as far as I am aware, no landlord dare refuse admittance to the nominee of the District Magistrate as disobedience of the order of District Magistrate would render him liable to imprisonment under Sec. 8 of the Act. In view of the Act many landlords are compelled to accept tenants whom they dislike and to whom they would not have let the accommodation if given a free choice. The Control of Rent and Eviction Act has by implication amended the law of contracts to this extent that in a case of tenancy of accommodation to which the Act applies, the consent of the landlord to the contract of tenancy need not be free. Ordinarily an agreement imposed on the landlord by the District Magistrate would be voidable on the ground that it was obtained by coercion. Ordinarily an agreement imposed on the landlord by the District Magistrate would be voidable on the ground that it was obtained by coercion. But under the Act the landlord has no choice but to let the accommodation to a nominee of the District Magistrate on pain of being cut to prison in case of disobedience. In view of the established practice throughout the State I would hold that when in pursuance of an order under Sec. 7 the nominee of the District Magistrate occupies the accommodation allotted to him, the consent of the landlord will ordinarily be presumed and there is an implied contract of tenancy. In the present case the courts below have found that an allotment order was passed in favour of the plaintiff on 30th May, 1953, and he took possession on 2nd June, 1953. Thus a tenancy was created in pursuance of the order and the plaintiff's allegation that he became a tenant under the allotment must be understood in that sense. Mr. Beg argued that the very fact that the defendant got the order cancelled by the R.C. and E.O. showed that he never submitted to it and there was no contract. This argument would have had some force if the landlord had moved the R.C. and E.O. for the cancellation of the order before the plaintiff took possession of the house - that is, before the order was implemented. Mr. Anand contended that it was implemented and the plaintiff even remitted rent by money order to the landlord who filed the application for cancellation of the allotment several months afterwards. On this point there is no evidence, because the landlord never raised it below. It is true that the defendant moved the R.C. and E.O. for cancellation of the order, but it is not known when the application was filed and Mr. Beg was unable to give the date. The cancellation took place when the plaintiff had been in occupation for several months. Under the Act neither the landlord nor the R.C. and E.O. can deprive a tenant of his rights after he has occupied the accommodation in pursuance of the allotment order. After the order has been implemented, it exhausts itself and there is nothing to cancel. It is not the defendants case that he refused to obey the order from the very beginning. After the order has been implemented, it exhausts itself and there is nothing to cancel. It is not the defendants case that he refused to obey the order from the very beginning. In these circumstances, in the absence of any evidence to the contrary I must hold that the defendant has not proved that no implied tenancy was created by the plaintiffs occupation of the accommodation in pursuance of the allotment order. The subsequent order cancelling the allotment order of 30th May was invalid because the R.C. and E.O. had no power to disturb an existing tenancy. Mr. Beg's first point fails. 5. His next contention which is really his main argument, is that the plaintiff's suit is barred by the proviso to Sec. 42 of the Specific Relief Act. Learned counsel contended that the plaintiff had a right to ask for consequential relief, but as he did not do so his suit was hit by the proviso. On the other hand Mr. Anand argued that a suit under Or. 21, R. 103, C.P.C. is a special remedy and not an ordinary suit for a declaratory relief to which the Proviso to Sec. 42 would apply. 6. I think Mr. Anand's contention is sound and supported by the overwhelming weight of the decisions of merely all the High Courts in India and of the Privy Council. The decisions governing the remedy under R. 63 will also apply to R. 103 which provides for a similar remedy for a review of the decision of the execution Court under R. 102. In Ambu v. Ketlilamma, I.L.R. 14 Mad. 23 which was a case under Sec. 283 of the old Code, corresponding to Rule 63 of the present Code, it was held that this Sec gave a special right to sue for a declaration of title by reasons of the special attribute with which the order on the claim petition is invested unless it is invalidated. This view was subsequently confirmed by a Full Bench of the Madras High Court in Kristham Sooraya v. Pathma Bee, I.L.R. 29 Mad. This view was subsequently confirmed by a Full Bench of the Madras High Court in Kristham Sooraya v. Pathma Bee, I.L.R. 29 Mad. 151 in which it was held that the special right conferred by Sec. 283 of the Code to sue for a declaration of his title in so far as it was affected by the order passed against him was not controlled by the proviso to Sec. 42 of the Specific Relief Act; and the plaintiff in such a suit was not bound to ask for any further relief to which he might be entitled. 7. The view of the Madras High Court has been followed by the Lahore, Patna, Nagpur and the Punjab High Courts. Tulsi Das v. Shiv Dat, A.I.R. 1927 lah. 631 Bhagwan Lal v. Rajendra Prasad Sahi, A.I.R. 1923 pat. 564 Ram Chandra Ganga Bux v. Sunder Lall Singh, AIR 1938 Patna 558 Dinkarrao Dharrao Rajurkar v. Ratansi Asaram, AIR 1938 Nagpur 300 . The facts of the Patna case Ram Chandra Ganga Bux v. Sunder Lall Singh, AIR 1938 Patna 558 were identical with those of the present case. The plaintiff filed a suit under Or. 21, R. 102, C.P.C. for a declaration and recovery of possession but subsequently amended his plaint by striking out the claim for possession. It was contended by the defendants that the suit without a prayer for possession was hit by Sec. ". 42 of the Specific Relief Act and not maintainable. This plea was rejected and the Court followed the principle laid down by the Full Bench of the Madras High Court in Kristham Sooraya v. Pathma Bee, I.L.R. 29 Mad. 151. The Privy Council in another case explained the nature of a suit filed under Sec. 283 of the old Code. The plaintiff had paid a court fee of Rs. 20 and her suit was dismissed by the trial court on the ground that the plaint was insufficiently stamped; and this decision was affirmed by the High Court. Reversing the decision of both the courts below the Privy Council held that the suit came within the definition of Article 17 of Sch. 20 and her suit was dismissed by the trial court on the ground that the plaint was insufficiently stamped; and this decision was affirmed by the High Court. Reversing the decision of both the courts below the Privy Council held that the suit came within the definition of Article 17 of Sch. II of the Court Fees Act which ran thus: "To alter or set aside a summary decision or order of any of the Civil Courts not established by Letters Patent or of any revenue court." Privy Council observed that this definition was "an exact description of the effect of the appellant's suit" and that Sec. 283 provided a mode of obtaining a review of the order of the execution court. 8. There is no decision of this Court - at any rate I have not come across any and done was cited at the bar - on the question of the nature of the suit under R. 103, C.P.C. But I respectfully agree with the view of the other High Courts and of the Privy Council that a suit under R. 103 or 63 - the language of the two rules is similar - in the nature of a especial remedy provided by statute and a mode of obtaining a review of the decision of the execution court. That being so, the Proviso to Sec. 42 of the Specific Relief Act does not bar the suit if the plaintiff does not ask for recovery of possession or any other consequential relief. 9. No other points was urged. The appeal is dismissed with Costs.