JUDGMENT JAMDAR, J.-The respondent Bansidhar, who is a tendu leaves contractor of Gondia, obtained a lease from the ex-Zamindar Devsha Bapu in respect of 53 villages under the Khutgaon Zamindari for a period of 10 years from 1-7-1942 to 30-6-1952 under the lease deed dated 17-8-1939. The lease was in respect of 21 kinds of forest produce including tendu leaves grown in the Zamindari lands in the 53 villages. The consideration for the lease was Rs. 12,000 out of which Rs. 2,000 were paid by way of Nazarana to the Zamindar and the remaining lease money was to be paid by 10 yearly equal instalments of Rs. 1,000. By another lease deed dated 28-11-1946 the lease was extended for a further period of 10 years from 1-7-1952 to 31-12-1962. The consideration for this lease was Rs. 4,500 per year besides Rs. 5,000 by way of Nazarana. During the subsistence of this lease, the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mabals, Alienated Lands) Act, 1950 came into force and by virtue of the provisions contained in sections 3 and 4 of this enactment the proprietary rights of the Zamindar in respect of the Khutgaon Zamindari vested in the State of Madhya Pradesh with effect from 31-3-1951. The first contract was honoured by the then Madhya Pradesh Government but the second contract dated 28-11-1946 was not, on the ground that it was brought into existence with a view to circumvent and defeat the provisions of Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950. The State Government, therefore, put the tendu leaves forest of Ex- Khutgaon Zamindari to auction in 1954. The respondent, therefore, filed Writ Petition No. 27 of 1954, in the Supreme Court· under Article 32 of the Constitution of India and obtained an order of injunction restraining the then State of Madhya Pradesh from disturbing respondent's right accrued to him under the lease for the collection of tendu leaves and miscellaneous minor forest produce from the forests of the Khutgaon Ex-Zamindari granted by Devsha Bapu under the lease-deeds dated 17th August 1939 and 28tll November 1946. In view of this order, the respondent was allowed by the officers of the Forest Department of the then Madhya Pradesh after obtaining an undertaking from him on 15-2-1954 that in case the decision of the Supreme Court went against him, he would pay reasonable lease amount that may be fixed by the Government. 2. The Writ Petition filed by the respondent was dismissed by the Supreme Court on 9th March 1959. Thereafter auction of the tendu leaves forest in question was held on 30-3-1959. Royalty fetched in that auction was Rs. 21,600 for one year. On tile basis of this amount, the State of Maharashtra as succession-in-interest of the then State of Madhya Pradesh, filed a suit on 20th December 1967 for recovering Rs. 1,29,600 as mesne profits for the years 1953 to 1958 less the amount of Rs.27,000 received from the respondent during the said period. 3. Tile respondent inter alia contended that the contract was honoured by the Madhya Pradesh Government for the year 1953 and that during the years 1954 to 1958, the work was carried out in pursuance of the stay order granted by the Supreme Court on 13-2-1954. He maintained that his possession was not wrongful. He further contended that upto 9-3-1959, when the Supreme Court decided batch of petitions in the ruling reported in Mahadeo v. State1, the law as understood and interpreted by the Supreme Court and the various High Courts was that contracts like the one held by the respondent obtained from the former Zamindars were valid and enforceable against the State. He also contended that the royalty recovered by the State from him was a fair measure of damages. According to him the royalty fetched in the year 1959 was neither a fair nor legal measure for deciding the quantum of damages for the years 1953 to 1958. According to him, had the Khutgaon Zamindari forest been put to auction in any of the suit years, it would not have fetched any amount whatever, because the fact that such contracts had been upheld by the Supreme Court in Chhotabhai's case would have deterred any contractor whatever from offering any bids. 4. The learned Trial Judge held that the respondent's working the suit forest in 1953 was without any right and was thus wrongful. 4. The learned Trial Judge held that the respondent's working the suit forest in 1953 was without any right and was thus wrongful. As regards the working of the forest during the years 1954 to 1958, he further held that in view of the unconditional stay order granted by the Supreme Court, respondent's possession of the suit forest during the period from 1954 to 1958 cannot be held to be wrongful so as to make him liable for mesne profits. He further held that as the respondent worked the suit forest for collection of tendu leaves with the permission of the Forest Department, the working of the forest was lawful. He also held that royalty fetched for the year 1959 cannot be the valid basis for ascertaining the damages for the years 1954 to 1958 and in the absence of any other evidence on this point, the claim for mesne profits failed. On the basis of this finding, the learned Trial Judge dismissed the suit but in view of the legal complications involved, he directed the parties to bear their own costs. Being aggrieved by dismissal of the suit, the State of Maharashtra has preferred this appeal. The respondent has also filed cross objections in respect of costs of the suit. 5. The material question that arises for consideration in this appeal is whether respondent's working of the forest during the years 1953 to 1958 was unauthorised making him liable to pay mesne profits. It is an admitted position that on the date on which the Khutgaon Zamindari vested in the State of Madhya Pradesh by virtue of the provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, the lease entered into by the respondent with the Ex· Zamindar authorising the respondent to collect 21 varieties of forest produce from the Khutgaon Zamindari forest was subsisting. The said lease was evidenced by the registered lease-deed dated 17-8-1939 and was for the period from 1-7-1942 to 30th June 1952. It is also not disputed that before the expiry of the lease and long before the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 came into force, the Ex-Zamindar of Khutgaon Devsha Bapu had executed another lease deed I in favour of the respondent on 28-11-1946 extending the period of the lease for a further period of 10 years ending with 31-12-1962. As expected the lease deed dated 28-11-1946 is a registered lease deed and there is no substance in the appellant's contention that this document was brought into existence in order to circumvent the provisions of the above mentioned enactment. The contention is prima facie absurd in view of the fact that it was executed and registered nearly 4l years before the Madhya Pradesh Abolition of Proprietary Rights' (Estates, Mahals, Alienated Lands) Act, 1950 came into existence. 6. Admittedly the first lease which expired on 30th June 1952 was honoured by the then State of Madhya Pradesh. It is also an admitted fact that even during the year 1953 no steps were taken by the Madhya Pradesh Government for auctioning the tendu leaves and the respondent was allowed to work the forest as before. The tendu leaves forest was first put to auction in 1954, which again compelled the respondent to approach 1he Supreme Court. As mentioned above, by the order dated 9th March 1959, the Supreme Court dismissed a group of petitions including the one filed by the respondent. The said decision is reported in AIR 1959 S C 735. In that case the Supreme Court, on construction of the agreements which were registered and terms of which had yet to expire, held that the agreements conveyed more than the tendu leaves to the petitioners and the rights conferred were not so simple as buying leaves in a shop. It was, therefore, held that the agreement could not be styled as a contract of sale of goods simpliciter. Their Lordships further held that as the forests and trees belonged to the proprietors as items of their 'proprietary rights' which vested in the State under sections 3 and 4 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (No.1 of 1951) and as these rights were transferred to the forest contractors, the said contracts were not binding on the Government. On the basis of this decision, it was sought to be urged by Mr. Salve, the learned Additional Government Pleader that working of the forest by the respondent from the date' on which the proprietary rights of the Zamindar vested in the State, became unauthorised making the respondent liable to pay mesne profits during the period he was unauthorisedly working the forest. 7. Salve, the learned Additional Government Pleader that working of the forest by the respondent from the date' on which the proprietary rights of the Zamindar vested in the State, became unauthorised making the respondent liable to pay mesne profits during the period he was unauthorisedly working the forest. 7. The learned Trial Judge, relying on the decision of the Supreme Court in Upper Ganges Sugar Mills Ltd v. Khalil-ul-Rahman and others3 has held that respondent's possession and his working of the forest during the period in which the unconditional stay granted by the Supreme Court was operating, was not wrongful. A careful reading of the above mentioned decision however, will show that the Supreme Court has nowhere stated that possession of the person, who continued in possession by virtue of the stay order of the Court, would not be wrongful, under any circumstances. The question in that case was whether the possession of the person in occupation, who is ordered to be ejected and who continues in possession because of the stay order passed by the Court, is possession on behalf of the Court. It was held that such a person must be held to remain in possession in the same right in which he was in possession. The relevant observations, which appear in para 8, read as follows:- "It cannot, however, be said simply because there were stay orders as a result of which the company continued to remain in possession that it was in possession on behalf of the Court. In such circumstances the possession of the Company, though it continued because of the stay orders, cannot be held to be on behalf of the· Court, and it must be in occupation in the right asserted by it, even though if it had not obtained the stay orders it would not have remained in possession." The learned trial Judge, therefore, was wrong in stating that these observations of the Supreme Court are clear on the point that the possession of the party under the stay granted by the Court would be under the rights asserted by it and would neither be wrongful nor on behalf of the Court. The Supreme Court only laid down that such possession would be under the rights asserted by the person who is allowed to continue in possession and would not be possession on behalf of the Court. The question whether. The Supreme Court only laid down that such possession would be under the rights asserted by the person who is allowed to continue in possession and would not be possession on behalf of the Court. The question whether. the possession is lawful or wrongful would ultimately depend on adjudication upon the right claimed by the party in possession. It does not depend on whether the stay granted by the appellate Court is conditional or otherwise. The order of stay, whether conditional or unconditional, is passed in order to maintain the status quo till the rights claimed by the party in support of his possession are finally adjudicated upon. Granting unconditional stay does not confer legality on possession, which is found to be unauthorised. Hence the fact that the Supreme Court issued injunction to the officers of the appellant restraining them during the pendency of the writ petition filed by the respondent, from disturbing the working of the forest cannot be interpreted to mean that respondent's possession was legalised by the stay order. 8. Mr. Salve for the appellant contended that in view of the decision of the Supreme Court rejecting the writ petition of the respondent and other such forest contractors respondent's possession after the date of vesting was unauthorised. It is, however, pertinent to note that the Supreme Court in an earlier decision held that the contracts of the kind entered into by the respondent were valid and were binding on the Government. That decision was given on 22nd December 1952 in Firm Chhotabhai Jethabhai Patel and Co. and others v. The State of Madhya Pradesh4• In that case the petitioners had entered into contracts and agreements with the previous proprietors of certain estates and mahals in the State of Madhya Pradesh under which they acquired the rights to pluck, collect and carry away tendu leaves, to cultivate, culture and acquire lac, and to cut and carry away teak and timber and miscellaneous species of trees called hardwood and bamboos. The contentions of the petitioners in that case were that the rights acquired by them under the contracts and agreements were got before the passing of the Madhya Pradesh Abolition of Proprietary Rights Act, 1950 and hence the legislation did not affect them, and that they were not proprietors within the meaning of the Act, which itself was ultra vires. The contentions of the petitioners in that case were that the rights acquired by them under the contracts and agreements were got before the passing of the Madhya Pradesh Abolition of Proprietary Rights Act, 1950 and hence the legislation did not affect them, and that they were not proprietors within the meaning of the Act, which itself was ultra vires. The Lordships of the Supreme Court held that the State had no right to interfere with the rights of the petitioners. Their Lordships held that the contracts and agreements were in essence and effect licenses granted to the transferees to cut, gather and carry away the produce in the shape of tendu leaves, or lac or timber or wood and that the rights of the petitioners either as buyers or lessees or licensees are not encumbrances within the meaning of section 3. It is true that this decision was not followed by the Supreme Court while deciding the case reported in AIR 1959 SC 735 , on the ground that the decision was given per incuriam. It is also true that in the latter decision the Supreme Court specifically held that the forests and trees were items of proprietary rights which vested in the State under sections 3 and 4 of the Act and as these items of proprietary rights were transferred to the petitioners in the said case, the contracts under which the said rights were so transferred were not binding on the State. But the fact remains that the date of the latter decision, the law laid down by the Supreme Court in Firm Chhotabhai's case was good law. Chhotabhai's case was decided on 22nd December 1952 and the case in AIR 1959 SC 735 , to which the petitioner was party was decided on 9th March 1959. The question, therefore, is whether during this period the forest contractors who worked the forest under contracts, which were valid as per the decision in Chhotabhai's case, can be treated as trespassers making them liable to pay mesne profits. In support of his contention that the respondent cannot be said to be a trespasser till 9th March 1959 during the years 1952 to 1958, Mr. In support of his contention that the respondent cannot be said to be a trespasser till 9th March 1959 during the years 1952 to 1958, Mr. Bobde sought to place reliance on the decision of the Privy Council in the case Gurudas Kundu Choudhury and others v. Kumar Hemendra Kumar Roy and others5 and a decision of the Andhra State High Court in Roman Catholic Mission Depressed Tenants Co-operative Society and others v. Nayudu Kotayya and others6• In the case before the Privy Council three families viz. the Kundu, Mukherjee and Roy were in joint possession of some properties which disappeared under the Ganges but reappeared after a considerable period of years, not in the same position but in juxtaposition to some property held by the Government. Assuming that the land was an accretion to their property, the Government put tenants upon it. After certain time members of the Kundu family applied to the. Collector that the land belonged to them. This claim was accepted and the Kundus were placed in possession of the whole of the land even though they had only a right to 6 annas share. Kundus continued the tenancy of one Srish who was inducted on the land by the Government. Thereafter other two families Mukherjee and Roy filed a suit for possession of the land and for the mesne profits. To this suit, the Kundus, the Government and Srish were made party defendants along with others. The suit was decreed with a direction that mesne profits were to be ascertained in execution. One of the questions that arose for consideration was on what basis the mesne profits were to be computed. Whether Kundus were liable to pay what they actually received from Srish or their liability was to be determined on what Srish got out of the land. It was held that both Kundus and Srish were trespassers and the liability of Kundus was determined on that basis. Their Lordships of the Privy Council found great difficulty in looking upon Srish as a trespasser or even the Kundus as trespassers because they were in possession of the land on the legal title to it which existed, namely, the lease from the Government. They, therefore, held that the liability of Kundus for mesne profits was restricted to the rent actually received by them from Srish. 9. According to Mr. They, therefore, held that the liability of Kundus for mesne profits was restricted to the rent actually received by them from Srish. 9. According to Mr. Bobde, these decisions support the proposition that when the title of the plaintiff is doubtful and when the defendant is placed in possession of the land by a person whose title then appeared to be valid, the defendant in the event of an eviction on the basis that the title really vested in the plaintiff, cannot be compelled to pay mesne profits on the basis that he is a trespasser. 10. As mentioned above, Shri Bobde also placed reliance on the decision of Andhra Pradesh High Court in the case of Roman Catholic Mission Depressed Tenants Co-operative Society and others in which the above mentioned decision of the Privy Council was followed. In the case before the learned Judges of Andhra Pradesh High Cournhe lands belonging to the plaintiff were submerged under the Krishna river and reappeared, after some years, just adjoining the lands belonging to the Government. Under a mistaken impression that these lands were part of the Government lankas, the Government of Madras included them in a lease granted in favour of defendant Nos. 2 to 4. Subsequently, the plaintiffs, with a view to have the title to the suit properties ascertained, got the lands surveyed and the survey disclosed that the said lands before immersion were the properties of the plaintiffs. The Collector of Guntur accepted the claim of the plaintiffs and directed that the lands should not be included in the lease for the next period. Defendant Nos. 2 to 4, however, did not hand over possession of the lands even after the original lease period expired and consequently the plaintiffs filed a suit for possession and mesne profits against the Government and defendants Nos. 2 to 4. The suit, which was mainly contested by defendant Nos. 2 to 4, was decreed and in pursuance of the decree, the plaintiffs were, put in possession of the lands. Defendant Nos. 2 to 4, however, challenged the decree in respect of the mesne profits on the ground that they were tenants holding over with the bona fide belief that fresh leases would be granted to them for a further period of 3 years. It was held that defendant Nos. Defendant Nos. 2 to 4, however, challenged the decree in respect of the mesne profits on the ground that they were tenants holding over with the bona fide belief that fresh leases would be granted to them for a further period of 3 years. It was held that defendant Nos. 2 to 4 were not trespassers and were not liable to pay mesne profits. Head note 'B' which relates to the liability of tenants of a trespasser, reads as follows:- "The position of a tenant, who was let into possession by a person whose title to the property was recognised by the plaintiff though ultimately it turned out not to be well founded, cannot be regarded as that of a trespasser for purposes of mesne profits. In such a case the tenants cannot be viewed as trespasser from the time of their lease. It is only after the title of the plaintiffs to the suit lands has been accepted, that their possession should be regarded as wrongful. The doctrine of 'relation back' can have no application to a case where the title of the plaintiffs was not recognised on the date of the lease". 11. In support of his finding that the working of the forest by the respondent was not unauthorised, the learned Trial Judge has placed reliance on two decisions, one of the Mysore High Court and other of the Kerala High Court. In the first case, Krishna Hanumant Shetty and others v. Ganappa, Jattu Gowda' the landlord terminated the tenancy of the tenant and obtained a decree for possession and successfully executed it. On appeal in execution, the appellate Court held that in view of the Bombay Tenancy Act, 1939 as amended by Act of 1946, the Civil Court had no jurisdiction and that there fore, the decree for possession was without jurisdiction and could not be executed. The landlord, therefore, handed over possession of the land to the tenant, who thereupon filed a suit for mesne profits, for the period, during which the landlord was in possession. It was held that the landlord's possession was in pursuance of a decree which was not challenged in appeal and was not set aside. The landlord, therefore, handed over possession of the land to the tenant, who thereupon filed a suit for mesne profits, for the period, during which the landlord was in possession. It was held that the landlord's possession was in pursuance of a decree which was not challenged in appeal and was not set aside. The appellate order in execution had not the effect of setting aside the decree and hence the possession of the landlord was not wrongful, though by reason of the appellate order in execution, the landlord was not in a position to put his decree in execution. Consequently it was held that the tenant was not entitled to any mesne profits. In the second case, Madhavan Nair v. Ankan and others8 a decree passed against the tenant for possession and mesne profits was stayed by an enactment which prohibited eviction of tenants in execution of decrees. The tenant resisted the claim for mesne profits on the ground that all proceedings in delivery of possession of a leasehold having hlen stayed by statute his possession was not wrongful and as such he was not liable to pay mesne profits. This contention was accepted holding that unless possession is wrongful, there cannot be any liability for mesne profits. In view of this position, the effect of the decision of the Supreme Court AIR 1959 S C 735 would be that even though the contract, under which the respondent was working the forest, was not authorised, the respondent cannot be styled as a trespasser, making him liable to pay mesne profits. 12. Assuming that the doctrine of 'relation back' is completely applicable in this case and that in view of the decision of the Supreme Court, the respondent became a trespasser right from the date on which the proprietary rights in the Zamindari forest vested in the Government, the question is whether the appellant is entitled to get any mesne profits from the respondent. The appellant claimed mesne profits for the years 1952 to 1958 on the basis of the royalty obtained by them in the auction of the forest held in the year 1959 after the decision of the Supreme Court. No other data is placed on record for computing what the respondent actually got or what he would have received with ordinary diligence. The respondent, who himself took the auction in 1959 for Rs. No other data is placed on record for computing what the respondent actually got or what he would have received with ordinary diligence. The respondent, who himself took the auction in 1959 for Rs. 21,600, stated in the evidence that as there were some other bidders in the field and as be had already spent Rs. 7,000 over the forest, he was compelled to offer such a high bid. It is an admitted position that no auction· of this particular forest was held before 1959 in view of the stay order. It is also in evidence that attempts to hold similar auctions in respect of other forests had also failed during the relevant period •. Naturally, therefore, there must have been keen competition when the public auction of the forest was held for the first time after several years. There is, therefore, substance in the contention of the respondent that the royalty obtained for the year 1959 cannot be a valid basis for computing the mesne profits for the prior years. The Divisional Forest Officer~ who held the auction in 1959 has himself admitted in his examination-in-chief itself that it would not be possible for him to say whether the royalty amount fetched in the year 1959 was reasonable for other years. The learned Trial Judge was, therefore, right in ignoring the royalty obtained by the Government in the auction held in 1959. 13. As observed above, attempt of the Government to hold auction of the forest produce in respect of the other forests failed for want of bidders. The respondent has asserted in his written statement that as he held a registered contract and that such contracts had been upheld by the Supreme Court in Chhotabhai's case, no contractor would have offered any' bid, if the forest in question would have been auctioned during the relevant years. In reply to the interrogatories put by the respondent, the appellant has admitted that auction of Ex-Gewardha forest was held on 19-12-1956 and 7-2~1957 but no contractor offered any bid, even though the forest contractor who held a registered contract in respect of the Ex-Gewardha Zamindari forest could not obtain any stay order from the Supreme Court. It was also admitted that two attempts to hold auction of Ex-sonsary Zamindary forest failed for want of bidders. It was also admitted that two attempts to hold auction of Ex-sonsary Zamindary forest failed for want of bidders. There is, therefore, substance in the, contention urged on behalf of the respondent that even if the forest in question would have been put to auction, the attempt would have failed for want of bidders and the Government would not have realised anything more than what the respondent paid as per the terms of the lease • 14. No attempt was made by the appellant to prove what the respondent actually received. The respondent was never called upon to produce his account books to show as to how much he realised by sale of the tendu leaves and how much he spent for collecting the leaves and in transporting and marketing them. The Divisional Forest Officers who were examined on behalf of the appellant have also not given their own estimate of the forest produce, which the respondent could have reasonably got from the forest in question. They could have done so. They could have also given estimate of the possible expenditure and from the data relating to prevailing prices of tendu leaves could have given reasonable estimate of the income which the respondent could have received with due diligence. It was also not shown that the prices of the tendu leaves were spiralling up during the years from 1952 to 1958. It is also significant to note in this context that under the terms of the first lease, the respondent paid to the Ex-Zamindar Rs. 12000 for ten years including Rs. 2000 by way of Nazrana and agreed to pay Rs. 50000, including Rs. 5000 as Nazrana, for the next 10 years. The average consideration, excluding Nazrana, under the first lease, comes to Rs. 1000 per year while the average consideration under the second lease excluding Nazrana comes to Rs. 4500 per year. As mentioned above, this second lease was to commence from 1-7 1952. It is clear that while entering into the second lease, the parties did take into consideration the possible rise in the prices of tendu leaves during the next 10 years. In the absence of any data to show that the amount of Rs. 4500 per year. As mentioned above, this second lease was to commence from 1-7 1952. It is clear that while entering into the second lease, the parties did take into consideration the possible rise in the prices of tendu leaves during the next 10 years. In the absence of any data to show that the amount of Rs. 4500 was unreasonably low and to show that the respondent got or could have got much more than this amount, the learned trial Judge was right in holding that the consideration of Rs. 4500 paid by the respondent was reasonable measure of the mesne profits payable by respondent to the appellant. 15. Reliance is also sought to be placed on two undertakings executed by the respondent in favour of the appellant. The first is dated 27-5-1953. It is signed by the respondent himself. The second is dated 15·2-1954 and it is signed by respondent's Mukhtyar Haribhau who was authorised to give such an undertaking. He has, however, held that both the respondent and his Mukhtyar gave the respective undertakings without understanding the contents thereof. This conclusion of the learned trial Judge cannot be accepted; But as rightly observed by the learned trial Judge, the first undertaking dated 27-5-1953 was not even referred to in the plaint and was not made the basis of the claim. The second undertaking, which was admittedly given after the Supreme Court passed the stay order, did not confer any new right on the respondent. The undertaking, therefore. is void for want of consideration apart from the fact that it is inconsistent with the unconditional stay granted by the Supreme Court. Rightly the learned trial Judge ignored the undertaking under which the respondent is alleged to have agreed to pay reasonable lease amount that may be fixed by the Government in case he failed in the Supreme Court. The result is that the suit was rightly dismissed. The appeal, therefore fails and deserves to be dismissed. The cross objections also stand dismissed. In view of the special circumstances of the case, there would be no order as to costs. Appeal & cross objections dismissed.