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. 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 November, 1948, passed an order directing the landlord, namely, the plaintiff, to let out the accommodation to the defendants. The order further directed the defendants, who was the allottee, that "he should take possession of the accommodation allotted within four days of the issue of this order and report to this office that possession had been taken. The order further directed the defendants, who was the allottee, that "he should take possession of the accommodation allotted within four days of the issue of this order and report to this office that possession had been taken. If this report is not received within four days of the issue of this order, the house may be re-allotted to another person." In pursuance of this order, the defendants took peaceful possession of the premises. The plaintiff applied for the cancellation of this order and, on 8th November, 1948, the order was cancelled. The allottee was directed to vacate the premises, failing which action would be taken against him under Section 7-A of the U.P. (Temporary) Control of Rent and Eviction Act for his eviction and restoration of possession to the landlord. Thereupon. the allottee applied for a review of this order. The District Magistrate, Agra, appears to have enquired into the matter and on 7th April, 1949, reaffirmed the order of allotment and directed that the allottee will not be ejected. Thus, the order of cancellation dated 8th November, 1948, stood extinguished and the original order dated 5th November, 1948, continued in operation. The landlord filed a revision before the Commissioner against the order dated 7th April, 1949. 5. Simultaneously, the landlord appears to have approached the State Government as well, presumably under Section 7-F of the U.P. (Temporary) Control of Rent and Eviction Act. The Government passed an order on 26th July, 1949, cancelling the order of allotment. On 30th August, 1949, the District Magistrate, Agra, informed the allottee that the Government has been pleased to cancel the allotment, and has directed that this order be given effect to. He asked the allottee to vacate the premises before the 15th September, 1949. On receipt of this order, the allottee rushed, and made representations to the Government on many grounds, including the grievance that the State Government has passed the order without any notice or opportunity of hearing to the allottee. On 27th December, 1949, the State Government withdrew its order of cancellation, dated 26th July, 1949, and directed the District Magistrate to decide the matter again. So, the order dated 7th April, 1949, remained in force, subject to reconsideration. On 27th December, 1949, the State Government withdrew its order of cancellation, dated 26th July, 1949, and directed the District Magistrate to decide the matter again. So, the order dated 7th April, 1949, remained in force, subject to reconsideration. The District Magistrate took up the case and fixed a date for hearing, but the landlord represented that a revision was pending before the Commissioner, no further action should be taken by the District Magistrate. The District Magistrate, therefore, shelved the matter (vide paragraph 9 of Writ Petition No. 7793 of 1951 filed by the allottee in the High Court) (Ex. 6) . 6. The Commissioner dismissed the landlord's revision on 1st August, 1950. He held that the accommodation was vacant and there was nothing wrong or illegal in the order of allotment. Thereupon, the landlord appears to have moved the Government again. The Government on 18th January, 1951, passed an order directing the District Magistrate to consider the re-presentation of the landlord for release of the accommodation and that while reconsidering the matter, he may also take into consideration the Government's earlier order dated 26th July, 1949, (Vide Paragraph 10 of the aforesaid writ petition) . The allottee at first applied to the District Magistrate that since the revision had been dismissed, the District Magistrate had no jurisdiction to reopen the matter, but the District Magistrate did not stay his hands. The allottee made representations to the State Government in this behalf, but on 11th June, 1951, the allottee was informed that the Government saw no reason to revise its order. 7. At this stage, the allottee filed a writ petition in this court (No. 7793 of 1951) asking for a writ of prohibition directing the District Magistrate not to proceed to reopen the matter of allotment. This Court passed an order staying the proceedings meanwhile. The writ petition came up for hearing on 26th February, 1954. At the hearing, the learned counsel appearing for the petitioner stated that the petitioner does not desire to press the writ petition. It was consequently dismissed on that date. The stay order was vacated. According to the finding of fact, the allottee restored possession to the landlord on 5-3-1954. 8. At the hearing, the learned counsel appearing for the petitioner stated that the petitioner does not desire to press the writ petition. It was consequently dismissed on that date. The stay order was vacated. According to the finding of fact, the allottee restored possession to the landlord on 5-3-1954. 8. It is thus clear that though the order of allotment was at first cancelled on 8th November, 1948, but the order of cancellation was itself set aside and the original order of allotment confirmed on 7th April, 1949. So, the order of allotment continued in operation all this while. Then, the State Government cancelled the allotment order on 26th July, 1949, but it withdrew the order of cancellation and directed the District Magistrate to consider the matter again. Thus, the original order of allotment continued to remain in operation subject to its being reconsidered. The revision filed by the landlord was also dismissed on 1st August, 1950. The District Magistrate could not reconsider the order of allotment because of the stay order passed by this Court. The order of allotment passed on 5th November, 1949, therefore, continued in operation till the writ petition was dismissed on 26th February, 1954. Before the District Magistrate could thereafter reconsider the order of allotment, the allottee surrendered possession and vacated the premises. It is thus apparent that since 5th November, 1948, till the 5th March, 1954, the defendants remained in possession in pursuance of a subsisting order of allotment. Such being the facts, how stands the law ? 9. The courts below have held that having regard to the provisions of sub-sec. (2) of Section 7 of the Act, an allotment order to let the accommodation in dispute to any person, cannot by itself create a tenancy. If the allottee manages to get possession without the landlord's cansent, no tenancy would in law come into existence till the landlord accepts him as a tenant. So, the defendant remained a trespasser and Article 39 of the Limitation Act governed the suit. For this conclusion, the lower appellate court relied on the Commentary on the U.P. Rent Control Act by Sri Gur Sharan Lal Srivastava (3rd Ed. p. 137). After a careful consideration, I am unable to endorse this viewpoint. Article 39 provides for a suit for compensation for trespass upon immovable property. For this conclusion, the lower appellate court relied on the Commentary on the U.P. Rent Control Act by Sri Gur Sharan Lal Srivastava (3rd Ed. p. 137). After a careful consideration, I am unable to endorse this viewpoint. Article 39 provides for a suit for compensation for trespass upon immovable property. The question is whether the action of taking quiet possession of vacant premises in pursuance of an order of allotment tanta mount to committing trespass? 10. At once the query arises, what is in law a trespass ? 11. In Mt. Sukhdei v. Lachhmi Narain, A.I.R. 1947 Alld. 31, it was held that the trespass contemplated by Article 39 of the Limitation Act was of the same nature as is generally understood in law. According to Clerk and Lindsell on Torts, Edn. 9, Ch. XV at p. 401 : "Trespass to land consists in an unjustifiable intrusion by one person upon land in the possession of another." 12. In Salmond on Torts, it has been stated : "The wrong of trespass to land consists in the Act of entering upon land in the possession of the plaintiff or remaining upon such land or placing any material object upon it, in each case without lawful justification." 13. So, an entry or continuance without lawful justification constitutes a trespass. 14. Let us then consider the incidents and characteristics of an order of allotment. 15. Sec. 7 (2) of the Rent Control Act empowers the District Magistrate to order a landlord to let an accommodation to the person named in the order. Section 7 (4) of the Act calls such a person a prospective tenant who can, by an order, be made liable to pay rent in advance. If the landlord refuses to let out the accommodation to the "prospective tenant" (who is none other than the allottee) the latter has been provided by Section 7-A of the Act a remedy to gain possession. Under Rule 5 of the Rules the allottee becomes liable to pay the rent from the date of the allotment order. Clause (g) of Section 2 defines a tenant to mean the person by whom rent is payable. An allottee or the prospective tenant would on obtaining possession, be in the eye of this Act, a tenant from the date of the allotment order. Section 3 protects his possession. Clause (g) of Section 2 defines a tenant to mean the person by whom rent is payable. An allottee or the prospective tenant would on obtaining possession, be in the eye of this Act, a tenant from the date of the allotment order. Section 3 protects his possession. No suit for ejectment can be filed against him except on the grounds mentioned therein. 16. In Anand Nivas Private Ltd. v. Anandji Kalyanji's Padhi, A.I.R. 1965 SC 414, the Supreme Court observed that the protection afforded by the Bombay Rents, Hotel and lodging House Rates Control Act, 1947, to a person remaining in possession after the determination or expiry of his contractual tenancy makes him what is popularly called a statutory tenant, even though such a person has no estate or interest in the premises recognisable by the Transfer of Property Act, which could be transferred or inherited. 17. The case of Brigadier K.K. Verma v. Union of India, A.I.R. 1954 Bom. 358 is also instructive. There a distinction was drawn between the nature of an erstwhile tenant whose tenancy had come to an end but was continuing in possession under the protection of the Statute though without the consent of the owner, on the one hand, and a trespasser pure and simple on the other. If the former was deprived of his possession otherwise than in due course of law, he could sue the owner under Section 9, Specific Relief Act, and regain possession. His possession being protected by the Statute, was held to be juridical and not as a trespasser. 18. In view of the provisions of the Act, the status of an allottee in peaceful possession, though without or contrary to the wishes of the owner, is akin to that of the aforesaid erstwhile tenant. Both are recognised to be entitled to possession. They can maintain their possession in view of the protection afforded by the Statute. They may not have any interest in the estate, but their possession would non the less be juridical, that is, recognised and enforceable at law. Could it then be said that the allottee's taking possession (either quietly and peaceably himself or through the machinery of the Act) is without lawful justification and so a trespass ? 19. Here, a division Bench authority of our Court is directly in point. Could it then be said that the allottee's taking possession (either quietly and peaceably himself or through the machinery of the Act) is without lawful justification and so a trespass ? 19. Here, a division Bench authority of our Court is directly in point. It holds that an allottee, acting in good faith, and finding the accommodation in question lying vacant, takes possession of it, then he cannot be said to be acting illegally and possession taken in this manner cannot be deemed unlawful. Fraud or mala fides may vitiate his claim to retain possession, but assuming that he has throughout acted in good faith, he would be justified in taking possession of the accommodation which the landlord has been commanded to let out to him. See Suryanand Giri v. Girdhari La1, 1967 AWR 193 . The Bench held : "It is true that the order under Section 7 (2) does not expressly authorise the prospective tenant to take possession, but it is implicit in such an order that he is entitled to do so, provided the accommodation is lying vacant and is not already in the occupation of the landlord or any one else. The order directs the landlord to let accommodation to the allottee; and thereupon, unless the landlord can persuade the Rent Control Officer (or the State Government) to withdraw the order by showing it to be illegal or otherwise unjust or inexpedient, he is obliged to allow the allottee to take possession of the accommodation (presuming it is vacant) and is entitled to realise rent from him in some cases the landlord may at first refuse to submit to the order and may make representations to the Rent Control Officer or approach the State Government under Section 7-F, but when he has exhausted his remedies, he will have no option but to comply with the directions given to him by the competent authority. Until tho,e remedies are exhausted, of course, no one can force him to accept rent from the allottee or to recognise the allottee as his tenant: but if in the meantime, the allottee has taken possession of the premises without obtaining the landlord's permission, he cannot be held to have acted illegally or without justification. Until tho,e remedies are exhausted, of course, no one can force him to accept rent from the allottee or to recognise the allottee as his tenant: but if in the meantime, the allottee has taken possession of the premises without obtaining the landlord's permission, he cannot be held to have acted illegally or without justification. We are unable to agree with the view that the prospective tenant, for whose benefit an order under Section 7 (2) has been passed, is precluded from taking possession of the accommodation, when he finds it lying vacant, and that he is bound to adopt a course of action that will further the dilatory tactics of a landlord who wishes to delay the implementation of the order. To hold other wise, would run counter to the very aims and objects of the Control of Rent and Eviction Act." 20. In the present case, there is not even a whisper of mala fides. The action of the allottee, in taking possession, has not been found so. The allotment order specifically directed the defendant to take possession and report the fact in four days. The accommodation was obviously lying vacant. The a allottee evidently took possession quietly and peaceably. The decision of this Division Bench is hence applicable on all fours. The action of the allottee in taking possession was, with lawful justification. It cannot be characterised a trespass on immovable property so as to attract Article 39 of the Limitation Act. 21. The possession of the allottee being lawful cannot be asked to pay mesne profits. According to the learned counsel for the defendant-respondents and allottee is a statutory tenant liable to pay what the Rent Control and Eviction Act calls "rent". The scheme of the Act was that in the absence of an agreement the allottee was liable to pay the annual reasonable rent. The plaintiff should not be given a decree for an amount exceeding the annual reasonable rent. Section 5 (1) of the Act requires the tenant to pay the agreed rent. Under Section 5 (3) if an accommodation is let out without an agreement as to rent, the tenant is liable to pay the rent fixed by the land lord under Section 5 (2). In the present case the accommodation was not let out by the landlord. Section 5 (1) of the Act requires the tenant to pay the agreed rent. Under Section 5 (3) if an accommodation is let out without an agreement as to rent, the tenant is liable to pay the rent fixed by the land lord under Section 5 (2). In the present case the accommodation was not let out by the landlord. The landlord had also not fixed the rent by a notice as required by Section 5 (2). This provision hence is inapplicable. Under Section 5 (5), of the Act rent fixed the Court is payable from such date as the court directs. No such fixation has taken place in the present case. So, none of these three provisions can be used to fix the rent in the present case. 22. The act by Section 2 (g) defines the "annual reasonable rent". Section 3-A authorises the District Magistrate to declare or determine it with respect to an accommodation, but the Act nowhere directs that the annual reasonable rent shall be the rent payable by a statutory tenant where the landlord does not by notice fix the rent. So, when there is neither an agreement nor any fixation of rent by the landlord the Act does not furnish the measure of the rent which the allottee has to pay. 23. Assuming that the defendants were liable only to pay the annual reasonable rent, as was pleaded by them, they have failed to establish it qua the allotted accommodation. The allotted accommodation is a portion of a bigger building. According to the extract of the municipal assessment filed by the defendants, the whole building was assessed a rental value of Rs. 1,200/- on 1-4-1941. But there is no evidence as to the exact proportion that the allotted accommodation bears to the whole building. On the materials on record an annual reasonable rent for the allotted accommodation cannot be spelt out with any measure of certainty. For both these reasons the measure of defendant's liability to pay cannot be founded on the annual reasonable rent. 24. Though the Rent Control Act contemplates that the allottee would pay rent from the date of the allotment order, it uses the word "rent" in a wider sense. The rent so payable could not be rent as understood under the Transfer of Property Act because it would not be the consideration under a contract of lease. 24. Though the Rent Control Act contemplates that the allottee would pay rent from the date of the allotment order, it uses the word "rent" in a wider sense. The rent so payable could not be rent as understood under the Transfer of Property Act because it would not be the consideration under a contract of lease. An allottee who has obtained possession without the consent of the landlord and where the landlord has not fixed the rent would be liable what the Act calls "rent", but what its true nature and character would be compensation for use and occupation. Article 110 of the Limitation Act provides a period of three years for a suit for recovery of arrears of rent. This Article also uses the term "rent" in the sense in which the term is understood in the Transfer of Property Act. In Pratap Narain v. Ramdhan Das, AIR 1946 Allahabad 447 it was held that the claim by the lessor against a tenant holding over and continuing in occupation of the premises after the termination of the relationship of landlord and tenant, would not be for rent, but merely for damages for use and occupation and a suit for he same would not be governed by 10 but by the residuary Article 120. he same principle would apply to an allottee who is in possession, but without a relationship of landlord and tenant. So, a claim for such compensation would be governed by the residuary Article 120 which prescribes a period of six years. The claim for the period commencing from 25th January, 1949, till 5th Mardi, 1954, was alone within the prescribed period of six years from the date of the suit, namely, 24th January, 1955; the rest was barred by time. 25. The plaintiff has claimed Rs. 100/- per month. The courts below have found that compensation for wrongful use and occupation could reasonably be fixed at Rs. 100/-. I have held above that the possession of the defendants was not wrongful, but that would hardly make any difference to the determination of reasonable compensation for use and occupation of the premises. The finding of fact of the courts below that the reasonable rate would be Rs. 100/- per month is eminently justified. The plaintiff's evidence was to the effect that the premises were let out to tenants at Rs. 100/- prior to the allotment order. The finding of fact of the courts below that the reasonable rate would be Rs. 100/- per month is eminently justified. The plaintiff's evidence was to the effect that the premises were let out to tenants at Rs. 100/- prior to the allotment order. The defendants themselves offered to pay rent at Rs. 100/- per month vide Ex. 1311, which is a letter dated 12th January. 1950, along with which the defendants had sent a cheque for Rs. 1,400/- as rent for 14 months from November, 1948 to January, 1950. This tender would suggest that the defendants themselves thought that that is the reasonable amount for use of the accommodation. In my opinion, the liability of the defendants has rightly been fixed at Rs. 100/- per month. 26. As seen above, the plaintiff is entitled to a decree for 5 years 1 month and 11 days. The suit ought to have been decreed for recovery of Rs. 6,135/-. 27. The appeal, therefore, succeeds and is allowed in part. The decree is modified. The plaintiff's suit is decreed for recovery of Rs. 6,135- with pendentilite and future interest at 6 per cent. The parties will pay and receive costs throughout in proportion to success and failure.