Hussain Begum and Others Vs Madu Ranga Rao and Others - Citation 429759 - Court Judgment

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(i) limitation - declaration of title - section 27 and article 65 of limitation act, 1963 - plaintiff instituted a suit for declaration of title - under article 65 defendant has to prove adverse possession for a period of 12 years to defeat title of plaintiff by operation of section 27 - suit based on tenancy of defendants - defendants do not asserted their titles at any point of time - in absence of any evidence to prove tenancy defendants are not more than trespassers - decree of possession awarded. (ii) ex parte party - order 41 rule 14 of code of civil procedure, 1908 - third respondent is not a party interested in possession of suit property - she impleaded as party to suit on ground that promissory note was executed by plaintiff in her name - plaintiff did not serve notice to third respondent at appeal stage - being an ex parte party appeal not mitigated due to non serving of notice. - - the defendants failed to adjust the same, nor did they settle the lease amount. 13, and he requested the plaintiffs in the other suit to make good the loss and at their behest he requested the defendantsto vacate the suit site to the extent of 25 sq. (7) whether the suit is bad for mis-joinder of claims? it is his further contention that the 2nd defendant having taken the plea of adverse possession failed to discharge the burden in establishing the possession for over a period of twelve years preceding the date of the filing of the suit,and therefore, the trial court ought to have decreed the suit in favour of the plaintiffs. (iii) whether it is not necessary for respondents to file cross-objections and what is the effect of the failure on the part of the respondents in not filing so? 12. it is better to refer the parties as they were originally arrayed in the suit to avoid any confusion. apart from failure of the defendant in attacking these documents at the relevant time when they have been sought to be introduced, dw1 pleaded ignorance in the cross-examination about the partition suit and the decree passed therein pursuant to the compromise between the parties and purchase of the property by the second defendant under a registered sale deed. al to a4 the title to the suit property can clearly be seen and in view of ex. the finding of the trial court in regard to the title over the suit property in favour of the plaintiffs is well founded and there are no compelling reasons for this court to interfere with. a perusal of the evidence of the dw1 clearly establishes that these documents ex. the evidence on record will not help adjudicating this issue effectively by a clear finding that on a particular date the defendants have come to be in possession of the suit property. this can be clearly culled out from the evidence and from the admitted facts. there is no need for this court to quote the relevant precedents on the point of the apex court and various courts in the country as the position has been well established. it clearly casts the burden upon the defendants. it is, therefore, not only a case that the second defendant failed to deny the case of the plaintiffs by issuing a reply nay a case where the defendant has not asserted his adverse title against the real owners. this circumstance clearly shows that there has been no assertion of adverse title by the second defendant qua the plaintiffs in support of the suit property by then. it is a clear case where the 2nd defendant has failed to establish his plea of adverse possession by any cogent evidence. the plea of adverse possession putforth by the 2nd defendant has not been clearly established. the first part enables any respondent to support the decree as well as to canvass the correctness of the finding against him in the court below and to urge that issue ought to have been decided in his favour. (2) cross-objection is like an appeal. it is filed in the form of memorandum and the provisions of rule 1 of order 41 of the code, so far as these relate to the form and contents of the memorandum of appeal apply to cross-objection as well. (3) court fee is payable on cross-objection like that on the memorandum ofappeal. this time could also be extended by the court like in appeal.1. these appeals arise out of a common judgment and decree dated 30th november, 1979 passed by the teamed second additional subordinate judge, vijayawada in os nos.135 of 1970 and 119 of 1972. as no.1439 of 1980 is the appeal preferred against the judgment in os no. 135 of 1970. tr. as no.2140 of 1983 had been preferred against the judgment and decree in os no.119 of 1972 before the district court, machilipatnam and was transferred to this court subsequently.since the parties are common and as common questions of law and fact are involved in both the appeals they can be disposed of together.factual matrix:2. the deceased first plaintiff and the second plaintiff were husband and wife. the father of the first plaintiff by name ali hussain was one of the mokhasadars of the jagir machavaram situate in vijayawada. there was a suit for partition among the co-sharers of that mokhasadars. ultimately in the final decree passed in ia no. 365 of 1991 in os no.37 of 1940 an extent of ac.360 sq., yards of site fell to the share of one naffijunnisa begum, and 240 sq., yards of site fell to the share of the father of the first plaintiff. second plaintiff purchased 360 sq.yards of site from the said nqffijunnisa begum in the year, 1955 under a registered sale deed. after the death of late ali hussain, the first plaintiff being the sole heir became entitled to the 240 sq., yards of site. thus the plaintiffs 1 and 2 became joint owners of the total extent of 660 sq.,yards of site described in the schedule annexed to the plaint (for short the 'suit property'). the father of the first defendant by name mereedu kotaiah and the second defendant took on lease a portion of the suit properly in an extent of 210 sq., yards along with the shed thereon for their coffee hotel business for a period of three years on an yearly rent of rs.160/- under a lease deed dated 1-6-1955. the defendants promised to vacate the suit property by 31-5-1958. after the expiry of the period of lease they requested for a renewal of lease for a further period of three years, and in that process they took on lease the remaining 400 sq., yards of site of the plaintiffs also promising to enhance the rent, but the rent was not settled between the parties. in the meanwhile, the plaintiffs borrowed some money from the lessees under promissory notes executed by them in the name of the 3rd defendant, wife of the second defendantand one katuri krishnavenamma, a relation of the 2nd defendant, with an understanding that the rents payable over the suit property should be adjusted towards the repayment of the debt. the defendants failed to adjust the same, nor did they settle the lease amount. subsequently, the father of the 1st defendant died and in his place the first defendant was in occupation of the suit properly. contrary to the understanding, suits were filed against the plaintiffs on the foot of the said promissory notes. therefore, the plaintiffs got issued a lawyer's notice dated 11-6-1965 to the defendants 1 and 2. the 2nd defendant having received the same on 12-6-1965 kept quiet. the plaintiffs again on 11-11-1967 got another lawyer's notice issued to the defendants 1 and 2 and also to kaiuri krishnavenamma. only third defendant got a belated reply notice dated 22-5-1968 issued through her advocate. hence, the suit for declaration of the plaintiffs' title and for possession of the suit property and also for profits.3. the plea of the 2nd defendant, who is the only contesting defendant is that he occupied the suit property in the year 1947 and was carrying on hotel business in the suit property since then and this was to the knowledge of the plaintiffs and therefore the title even if any in favour of the plaintiffs has been extinguished as he has been there over the suit property for more than the statutory period. the 2nd defendant denied any lease as pleaded by the plaintiffs along with the 1st defendant while denying all other material averments made in the plaint.4. in respect of 25 sq., yards of site, which had fallen short of according to the plaintiff in the suit os no. 119 of 1972, it is his plea therein that he purchased 240 sq., yards of site which is towards west of the suit site forming part of plot no.13, and he requested the plaintiffs in the other suit to make good the loss and at their behest he requested the defendantsto vacate the suit site to the extent of 25 sq., yards. when the defendants are evading after getting a notice issued filed the suit for declaration and for recovery. the 2nd defendant who again resisted that suit had taken up the same plea as in the other case.5. on the above pleadings the trial court framed the following issues at the settlement of issues.(1) whether the plaintiffs have title to the suit property?(2) whether the lease set up by the plaintiffs is true?(3) whether the 2nd defendant acquired title to the suit property by adverse possession?(4) whether the plaintiffs are entitled to the possession of the suit property?(5) whether the plaintiffs are entitled to claim any mesne profits and if so to what amount?(6) to what relief?(7) whether the suit is bad for mis-joinder of claims?(8) whether the plaintiff is entitled to the possession prayed for?(9) whether the defendant no.2 perfected his title by adverse possession?(10) whether the 3rd defendant is not a necessary party to the suit?(11) whether the plaintiff or the 1st defendant are the owners of the plaint schedule property?(12) to what relief?(13) whether the defendants 4 to 8 are necessary parties to the suit?(14) whether the plaint schedule site is the part of the plaint schedule site in os no.135 of 1970 on the file of the sub-court, vijayawada?6. on a joint memo tiled by both the parties in the above suits, a common trial was conducted and during the course of trial two witnesses were examined and the documents exs.a1 to a42 were got marked on the side of the plaintiffs. as many as 16 witnesses were examined and the documents exs.b1 to b67 were got marked on the side of the 2nd defendant, besides marking exs.x1 to x7 through witnesses.7. upon considering the evidence, both oral and documentary, available on record and upon hearing both parties the court below dismissed the suit os no. 135 of 1970 with costs in favour of defendants 1, 2, 4 and 5. similarly, he dismissed the other suit also with costs to defendants 2 and 3. while dismissing both the suits the court below held that the plaintiffs 1 and 2 to be the owners of the suit schedule property. similarly, the court below held that the plaintiff in the other suit to the extent of 25 sq., yards of site as the owner. however, on the issue of adverse possession believing the version of the 2nd defendant both the suits have ultimately been dismissed as aforesaid.8. aggrieved by the said judgment and decree, as aforesaid, both the appeals came to be filed.9. the learned counsel for the appellants has contended that there is sufficient evidence on record to show that the defendants 1 and 2 arc the lessees over the suit properly. it is his further contention that the 2nd defendant having taken the plea of adverse possession failed to discharge the burden in establishing the possession for over a period of twelve years preceding the date of the filing of the suit,and therefore, the trial court ought to have decreed the suit in favour of the plaintiffs. the learned counsel has further contended that it is not open to the defendants in the appeal to question the title of the appellants in view of the findings of the trial court on the relevant issues.10. the learned counsel appearing for the contesting respondents has contended (1) that the appellants have no title and it is open to the respondent while supporting the decree to canvass against the findings which have gone against him. (2) that the third defendant in the suit who has been impleaded as respondent herein has not been served with any notice in the appeal and in the eye of law therefore there has been no appeal against her and the decree having become final in favour of the third defendant, the appeal should be dismissed in limine on that point, (3) that after the death of the respondent no.2 the legal representatives have not been brought on record and therefore the appeal as against the second respondent having become abated, the whole appeal has to be treated as having been abated, (4) that the findings in regard to the plea of adverse possession taken by the defendants having been based upon sound reasons cannot be interfered with.11. in view of the respective contentions, the points that arise for my determination in these appeals are:(i) whether the appellants have established the title to the suit property?(ii) whether the first respondent late ranga rao had been in possession of the suit property from the year 1947 onwards and prescribed title thereto?(iii) whether it is not necessary for respondents to file cross-objections and what is the effect of the failure on the part of the respondents in not filing so?(iv) whether the appeal is abated as pleaded by the respondents for not bringing the legal representatives on record of the deceased second respondent?12. it is better to refer the parties as they were originally arrayed in the suit to avoid any confusion.13. while it is the claim of the plaintiffs that they are the owners of the suit property having got a part of it under partition pursuant to the decree passed by the court in original suit no.37 of 1940 and having purchased the remaining part under a registered sale deed from one of the mokasadars and they let out the suit property to the defendants 1 and 2 in the suit under a lease deed dated 1-6-1955 and thus the defendants are their lessees; it is the plea of the 2nd defendant who is the contesting defendant that he was in occupation of the suit property from the year 1947 onwards independently and therefore he perfected me title over the suit property by means of adverse possession. in view of the competing claims which are diametrically opposite to one another, the two contentious issues that arise for consideration are in regard to title over the property as pleaded by the plaintiffs and the title over the suit property by prescription as pleaded by the 2nd defendant while denying the factum of lease. in view of that part of decree passed by the trial court upholding the title of the plaintiffs, in ordinary course there is nothing for this court to adjudicate the same, but in view of the contentions raised by the learned counsel for the respondents inviting the attention of the court to rule 22 of order41 of the code of civil procedure, it is expedient to advert to the same with reference to the documentary evidence, and therefore, there is nothing much for this court to delve upon the oral evidence adduced on the point. the crucial documents being relied upon in regard thereto are exs.a1 to a4. exs.a 1 to a3 arethe certified copies of the compromise petition in original suit no.37 of 1940, decree in the said suit and the plan annexed thereto. ex.a4 is the registration extract of the sale deed under which the second plaintiff said to have purchased a part of the suit property from one of the mokasadars. exs.a1 to a3 being the certified copies of compromise petition, decree and the plan are being the public documents their admissibility is beyond question. the defendant in his statement while traversing all material averments made in the plaint also in a general way pleaded that these documents do not pertain to the suit property. when pw1 deposed on oath while introducing these documents there has been no cross-examination worth the name on these documents. apart from failure of the defendant in attacking these documents at the relevant time when they have been sought to be introduced, dw1 pleaded ignorance in the cross-examination about the partition suit and the decree passed therein pursuant to the compromise between the parties and purchase of the property by the second defendant under a registered sale deed. from a perusal of the oral evidence on record and is that pw1 and dw1 there is little doubt about the proof of these documents and their relevance to the suit property. apart from these four documents, the plaintiffs have also relied upon exs.b1 and a42. ex.b1 is the sale deed in favour of the plaintiffs in the other suit in respect of a part of suit property in plot no.13 as can be seen from ex.a3 plan. there has been no dispute regarding the sale transaction under ex.bi. admittedly, the plaintiff in the other suit who purchased property under ex.b1, which is towards western side of the suit property, has been in possession of the same. the only dispute is in regard to a bit of site admeasuring 25 square yards, which according to the plaintiff in that suit had fallen short of. it is an indicia therefore that the plaintiffs have been exercising their right over the property covered by exs.a1 to a3by selling a part of it conferring valid title to their vendee which is not in dispute. similarly, under ex.a42 sale deed the property, which is towards the southern side of the suit property, was said to have been disposed of by the plaintiffs. ex.a42 sale deed again is not in dispute. equally it is not in dispute that the plaintiffs could convey a valid title under the said document. in view of exs.al to a4 the title to the suit property can clearly be seen and in view of ex.b1 and a42 the same has been further fortified. there has been no serious dispute on the side of the defendants in regard to the claim of title over the suit property by the plaintiffs. even according to his own plea dw1 came into possession of the suit property not knowing who was the real owner thereof, and has not set up any title independently over the suit property in himself except pleading that he has been in possession of the suit property from 1947 onwards to the knowledge of everybody including the plaintiffs and thereby prescribing the title over the suit property by means of adverse possession. the main plea of the defendants therefore is ihe prescription of title over the suit property by means of adverse possession. plea of adverse possession undoubtedly presupposes a title over the property in another person other than the person who is setting up the plea. this further fortifies the contention of the plaintiffs that they have clear title over the suit property. the finding of the trial court in regard to the title over the suit property in favour of the plaintiffs is well founded and there are no compelling reasons for this court to interfere with.14. the learned counsel for ihe respondents sought to contend before me that even according to the case of the plaintiffs that they sold 240 sq., yards of site under ex.bl and another site under ex.a42 the aggregate of which conies nearly to the total extent of the suit property and therefore it is strange for the plaintiffs !ocontend that they are the owners of the suit property. what has been sold under exs.a42 according to the learned counsel for the appellants is not part of the suit property. it is a property, which is towards the southern side of the suit property. indeed the court below has also adverted to the same in its judgment and has rightly repelled the contention raised in regard thereto by the defendants. in regard to the property covered by ex.bl sale deed it is no doubt true that it is part of plot no.13 as shown in ex.a3 plan. confusion seems to have arisen on account of the plea taken by the plaintiffs in the plaint in regard to the total extent of the site they got. as can be seen from the averments made in the plaint 240 sq., yards, of site has been obtained by them by means of the compromise decree in os no.37 of 1940 and the second plaintiff having purchased 360 sq., yards of site from one of the mokasadar the aggregate comes to 600 sq., yards, of site. the plaint schedule shows that the disputed property is in an extent of 660 sq., yards. the confusion sought to be removed by the evidence of pw1 who categorically deposed that after deducting the site covered by ex.bl sale deed there remained an extent of 660 sq., yards. according to the witness what the plaintiffs got under the compromise decree in os no.37 of 1940 about 600 sq., yards covered by plot no.13 and what they got under the original of ex.a4 sale deed pertaining to plot no.14 is 360 sq., yards. now after deducting 240 square yards covered by ex.bl sale deed the total comes to 660 sq., yards which represents the suit property as given in the schedule. in view of this clear evidence of pw1, which remained uncontraverted and as the defendants have not seriously disputed the same the contention of the learned counsel for the respondents cannot be countenanced. the properties covered by ex.a42 and ex.b1 therefore in my view are not parts and parcels of the suit property and they are distinct and separate.15. coming to the most contentious issue of adverse possession, while it is the case of the plaintiffs that the defendants 1 and 2 were the lessees having been inducted into possession under a written tease deed dated 1-6-1955 and continued to be in possession having taken the remaining part of the suit land after the expiry of the initial term of lease of three years, the second defendant flatly denied the same and claimed that he had come to be in possession of the suit property independently as long back as in the year 1947 itself. the plaintiffs title under the documents exs.a1 to a4 has been upheld by the trial court and also by this court in view of the above discussion. in the partition suit filed by one of the mokasadars against the others a receiver was appointed by the court to take possession of the properly covered by that suit and eventually the receiver was said to have taken possession of the said property. in proof thereof, the plaintiffs are relying upon exs.a8 and a9. in cmp no.8689 of 1947 the high court of madras appointed a receiver to take possession of the property covered by the schedule appended to the partition suit in os no.37 of 1940. ex.as is the cc thereof. ex.a9 is the certified copy of the interim report filed by the receiver. the said report was filed into the court mention inter alia that the receiver took possession of the property on 19-10-1950. a perusal of this report leaves no doubt that none was in possession of the suit property at the relevant time. ex.a9 is beyond controversy and in fact has not been assailed even by the defendant. had it been a case where the second defendant as claimed by him was in possession by then, a mention would have definitely been made by the receiver about the possession of the second defendant. the conspicious absence of the relevant recital in regard thereto would definitely exclude the tall claim of the second defendant that he came to be in possession of the suit property by 1947 itself independently. it isnot a case where in view of the competing claims, the plaintiff's claim that the defendants 1 and 2 have been inducted into possession as tenants in the year 1955 and the defendants claim that they came to be in possession independently of the suit property by 1947 itself, since the claim of the defendants that they came to be in possession of the suit property by 1947 cannot been countenanced, it can automatically prove the other claim of the plaintiffs. notwithstanding that the claim of the second defendant that he came to be in possession of the suit property by 1947 cannot be believed, it is for the plaintiffs to independently establish their plea that they have inducted the defendants as their lessees into the suit property. the only document upon which reliance has been placed very much by the plaintiffs is ex.b1. ex.b1 is an unregistered lease said to have been executed by the 1 st defendant in favour of the plaintiffs and said to have been attested by the second defendant. second defendant is not obviously a party thereto. now it is the plea of the plaintiffs further that after the expiry of the term of lease under ex.b1, the defendants have taken the other bit of the suit properly promising to enhance the rent and thereby both the defendants continued to be in possession of whole of the suit property as lessees. to prove the plea against the second defendant ex.b1 will not help. in view of the fact that ex.b1 is an unregistered lease deed it is not admissible according to section 49 of the registration act. no doubt, in the explanation appended thereto a document, which per se is not admissible, for want of registration can be considered by the court for collateral purpose. the factum of lease being the contentious issue i do not think ex.bl can be pressed into service to prove the possession of the defendants otherwise independent of the document. i see every force in the contention of the learned counsel for the respondents in this regardthat ex.b1 is not available to the plaintiffs even for collateral purpose to prove the possession of the defendants. the possession of the defendants over the suit properly is an undisputed fact. the dispute only being in what capacity. unless the plaintiffs are able to show that the defendants are lessees their plea cannot be accepted that the defendants are in permissive possession. both sides have relied upon certain tax receipts, demand notices said to have been issued by the vijayawada municipality. in their anxiety, lot of documents have been dumped in by both the parties without taking further care to connect those document to the suit property. any way assuming for a moment that those documents pertain to the suit property they prove payment of tax over the property. it may be in the capacity of the owner or in the capacity of the possessor thereof. ultimately the evidentiary value of the tax receipts is to prove the possession. now, the possession being an undisputed fact these documents carry the court nowhere. they cannot prove the status of the parties as lessees. a lot of oral evidence has been adduced on the side of the defendants by examining as many as nine witnesses as dws.2 to 10. the defendants further sought to adduce two account books said to have been maintained by the second defendant contending that khatas have been opened by the customers who used to visit the coffee hotel being run by the second defendant over the suit property. a perusal of the evidence of the dw1 clearly establishes that these documents ex.b52 and b58 came to be filed after dw1 was cross-examined in part. a suggestion had been put to this witness in the cross-examination that he was endeavouring to create evidence in regard thereto. after that suggestion both these documents exs.b52 and b58 have been introduced into evidence. that itself takes away the efficacy of these two documents. nothing can be culled out from these two documents to show that dws.2 to 10used to visit the hotel and necessary entries about the amounts they owed to the second defendant came to be incorporated therein. far from establishing the claim of these witnesses dws.2 to 10, the way in which the documents exs.b52 and b58 have been introduced into evidence excites suspicion and takes away the sanctity of these documents. therefore, exs.b52 and b58 shall have to be eschewed from consideration. even otherwise in view of the clear documentary evidence of exs.a8 and a9 as discussed by me supra, the very existence of the coffee hotel by 1950 when the receiver took possession of the suit properly is excluded, exs.b52 and b5s becomes very much doubtful. in any view of the matter they cannot substantiate the contentions of the defendants.16. this then takes us to other question as to when the defendants have come to be in possession of the suit property. the evidence on record will not help adjudicating this issue effectively by a clear finding that on a particular date the defendants have come to be in possession of the suit property.17. the possession of the second defendant over the suit property is an admitted fact. the plaintiffs claim that d1 and d2 have been inducted into possession. it may be mentioned here that d1 remained ex parte. the legal representatives of dl, who died pendenti lite, who have been added as defendants 4 and 5 too remained ex parte. obviously therefore, there has been no denial of the case of the plaintiffs on the part of the first defendant. but the second ^defendant independently claims to have been in possession of the properly unconnected with the first defendant. in the absence of any such plea of the second defendant perhaps there would have been some force in the case of the plaintiffs that the defendants 1 and 2 have been inducted as tenants in the suit property. in view ofmy above discussion that ex.b1 is not available to the plaintiffs, the plaintiffs have not been able to establish the possession of the 1st defendant as a lessee over the suit property. if ex.bl is available to the plaintiffs, the case of the 2nd defendant that he has come to be in possession of the suit property independently could not have been countenanced. the learned counsel for the plaintiffs contended that defendants 1 and 2 having received the registered notices, got issued by the plaintiffs under exs.a13 and ai6, did not chose to issue any replies thereto and therefore it amounts to an admission of the claim of the plaintiffs on their part. merely because the defendants have not chosen to give reply it cannot be concluded automatically as an admission on their part. but what emanates from the above circumstance is the conduct of the parties which is material. but conduct of the panics by ilself is not sufficient to bring home the fact of lease. jural relationship of landlord and tenant shall have to be established by independent evidence. at any rate, in view of the scanty evidence on the point, it cannot be said the plaintiffs have been able to establish the factum of tease of the suit property. notwithstanding the same, the possession of the second defendant over the suit property is an admitted fact; in what capacity is the only question. now, the plaintiffs having been considered to be the title holders of the suit property, in the absence of any proof to the effect that the second defendant is a lessee and as the possession of the second defendant has been admitted, the possession of the defendant can only be that of a trespasser and nothing more than that and nothing less than that. this can be clearly culled out from the evidence and from the admitted facts.18. to establish the ptea of adverse possession, undoubtedly the burden is upon the second defendant he should show by cogent evidence that he has been in possession of the suit property for morethan the statutory period of 12 years. possession per se is not sufficient to prescribe title by extinguishment of the title of the real owner. the classical requirement as laid down by the apex court in the case of lakshmi reddy v. lakshmi reddy, : [1957]1scr195 , is nee vi nee clan and nec precario. the possession required must be adequate, in continuity, in publicity, and in extent to show that it is possession adverse to the competitor. there is no need for this court to quote the relevant precedents on the point of the apex court and various courts in the country as the position has been well established. the possession of defendant no.2 over the suit property is only that of a trespasser. mere possession of even a trespasser will not constitute adverse possession unless accompanied by assertion of hostile title. the relevant article which governs the period of limitation and which is germane for consideration in this regard is article 65 of the limitation act. article 65 reads as follows:description of suitsperiod of limitationtime from which period begins to run65.for possession of immoveable property or any interest therein based on title.twelve yearswhen the possession of the defendant becomes adverse to the plaintiff.19. as can be seen from the third column of the schedule the starting point of limitation is obviously the point when the possession becomes adverse to the real owner. now, in view of the established fact that the second defendant is in possession of the property and the possession of the second defendant is that of a tress passer and the real owners of the suit property are the plaintiffs, the crucial question that crops up for consideration at this juncture is as to when the possession of the second defendant became adverse to the plaintiff. if that could be established that becomes the starting point of limitation to reckon the period oflimitation preceding to the date of filing of the suit. the learned counsel for the respondents relied upon a judgment of this court reported in pedda maddileti v. mandli sanjeevu, 1964 (1) an.wr 330. obviously, that was a case, which is prior to the advent of the new limitation act of 1963. the contention of the learned counsel for the respondents that the plaintiffs cannot sleep over the matter and should approach the court within a period of limitation cannot be countenanced in view of the change of position of law from the relevant article under the old limitation act, 1908 to the relevant provision under the new act of 1963. the learned counsel for the appellants relied upon a judgment of the apex court in indira v. arumlugam, : air1999sc1549 , wherein the apex court held as follows:'once title is established on the basis of the relevant documents and other evidence, unless the defendant proves the adverse possession of the prescriptive period, plaintiff cannot be non-suited. it clearly casts the burden upon the defendants.'20. in this case, the title of the plaintiffs has been upheld. it is for the 2nd defendant, therefore, to show that his possession has become adverse to the plaintiffs who are the real owners.21. the learned counsel for the appellants also relied upon a judgment of the madras high court in bhagavathy pillai v. savarimuthu, air 1976 mad. 124, it has been held by the madras high court that the period of limitation of 12 years commences when the possession of the defendants became adverse to the plaintiffs. the court further held that in a suit falling under article 65, the defendant who wants to defeat the rights of the plaintiff has to establish his adverse possession for a period of 12 years which has the effect of extinguishing the title of the owner byoperation of section 27 of the act and that the defendant fails to do so then the plaintiff cannot be non-suited merely because he was not able to prove possession within 12 years. it is not for the plaintiff to prove possession within 12 years, but it is for the defendant to prove possession which possession is adverse to the real owner for over a statutory period of 12 years. the position being clear under the new limitation act the judgment of this court relied upon by the learned counsel for the respondents has no application to the facts. the learned counsel for die appellants also relied upon a judgment of the calcutta high court reported in premendu bhusan mondal v. sripati ranjan chakravarty, : air1976cal55 . the calcutta high court held that the possession of the unauthorised person cannot be adverse to true owner, but should be deemed on his behalf. i have already discussed in my judgments (supra), that mere possession of trespasser will not constitute adverse to the real owner unless accompanied by assertion to hostile title. it is therefore, germane at this stage to consider as to what is the starting point in this case from which the period of 12 years shall have to be reckoned. it may be mentioned here that there has been no whisper in the entire evidence of dw1 and other witnesses that he asserted this element of hostility claiming independent title in him against the interest of the plaintiffs. it is apt here to consider the exs.a13 and a16. ex.a13 is the office copy of the notice got issued by the plaintiffs to the defendants 1 and 2 on 11-6-1965. the notice has been received by the 2nd defendant under ex.a14 acknowledgment and the 1st defendant under ex.a15 acknowledgment. admittedly, no reply notice has been issued denying the averments made therein. similarly, the defendants 2 and 3 under exs.a17 and a18 acknowledgments received ex. a16 notice dated 11-11-1968 got issued by the plaintiffs. there has been no reply from the defendants 1 and 2. d3 who is no otherthan the wife of the 2nd defendant, no doubt got reply notice issued, but she claimed no interest over the suit property categorically therein. when the plaintiffs claimed in the respective registered notices setting up the plea of lease and then adjustment of rents towards the money advanced by the 3rd defendant and her sister there has been no denial on the part of the defendants, on the other hand, the suils on the foot of promissory notes came to be filed against the plaintiffs by d3 and her sister. although, the controversy centered round the liability to pay the amounts covered by the promissory notes in favour of d3 and her sister, that was the first occasion where the 2nd defendant could have denied the title of the plaintiffs mentioning inter alia in no uncertain terms that his possession over the suit property was independent of any lease and against the plaintiffs. it is, therefore, not only a case that the second defendant failed to deny the case of the plaintiffs by issuing a reply nay a case where the defendant has not asserted his adverse title against the real owners. this circumstance clearly shows that there has been no assertion of adverse title by the second defendant qua the plaintiffs in support of the suit property by then. on the other hand, a tacit admission on the part of the defendants qua the plaintiffs is discernible. i, therefore, see no other piece of evidence available on record to show validly, that on a particular date the defendants asserted the hostile element. the possession of the 2nd defendant over the suit property for any length of time cannot at all be considered as adverse to the plaintiffs till such time the defendant openly asserts the same against the plaintiffs. for the above reasons, the finding of the trial court is unsustainable. it is a clear case where the 2nd defendant has failed to establish his plea of adverse possession by any cogent evidence.22. for the foregoing reasons, that the title over the suit property has been clearlyestablished in favour of the plaintiffs. the plea of adverse possession putforth by the 2nd defendant has not been clearly established.23. as regards the other contention that by virtue of rule 22 of order 41 of the civil procedure code (for short 'the code') it is open to the respondents even to question the title of the plaintiffs in this appeal, admittedly, no cross-objections have been filed by the respondents against that part of the decree passed by the court in regard to the title over the suit property. no court fee required to be paid under the provisions of court fees act has been paid. it is apt here to consider the provisions of order 41, rule 22 of the code before adverting to the question raised by the learned counsel. order 41, rule 22 of the code insofar as relevant reads as under:22.(1) any respondent, though he may not have appealed from any part of the decree, may not only support the decree (but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour; and may also take any cross-objection) to the decree which he could have taken by way of appeal, provided he has filed sued objection in the appellate court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate court may see fit to allow.explanation :--a respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree insofar as it is based on that finding, notwithstanding that by reason of the decision of the court on any other finding which is sufficient for the decision of the suit, the decree is, wholly or in part, in favour of that respondent.form of objection and provisions applicable thereto - (2) such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.(3) .....(4) .....(5) .....24. a perusal of the said provision leaves no room for any doubt. sub-rule (1) of rule 22 is in two parts. the first part enables any respondent to support the decree as well as to canvass the correctness of the finding against him in the court below and to urge that issue ought to have been decided in his favour. the second part enables him to attack the decree even without filing any appeal against the decree by filing cross-objections to the decree within one month from the date of service of notice of hearing of the appeal. thus, it is clear that the respondent has a right not only to support the decree on any ground whether decided in his favour or against him without filing any appeal or cross-objections to the decree assailed against, but also to challenge the decree by filing cross-objections against any finding or part of the decree. the respondent, therefore, cannot request the court to reverse the finding given against him without filing any cross-objections. his entire endeavour is only to support the decree. i am reinforced my above view by the judgment of the apex court in choudhary sahu v. state of bihar, : [1982]2scr178 , the apex court held as follows:'the first part of this rule authorises the respondent to support the decree not only on the grounds decided in his favour but also on any of the grounds decided against him in the court below. the first part thus authorises the respondent only to support the decree. it does not authorisehim to challenge the decree. if he wants to challenge the decree, he has to take recourse to the second part, that is, he has to file a cross-objection if he has not already filed an appeal against the decree.'25. relying on the said judgment, our high court in apsrtc v. salvaraj vijaya, : air1995ap319 , held at page 267 as follows:'that the first limb of the rule thus authorises the respondent only to support the decree and it does not authorise the respondent to challenge the decree. if it wants to challenge the decree, it has to come on record viz., it has to file a cross-objection, if it has not filed an appeal against the decree.'26. very recently the apex court in superintending engineer v. b. subba reddy, 1999 air scw 1479, considered the nature and scope of the cross-objections to be filed under order 41, rule 22 of the code and laid down certain principles thus:'from the examination of these judgments and the provisions of section 41 of the act and order 41, rule 22 of the code, in our view, following principles emerge:(1) appeal is a substantive right. it is creation of the statute. right to appeal does not exist unless it is specifically conferred.(2) cross-objection is like an appeal. it has all the trappings of an appeal. it is filed in the form of memorandum and the provisions of rule 1 of order 41 of the code, so far as these relate to the form and contents of the memorandum of appeal apply to cross-objection as well.(3) court fee is payable on cross-objection like that on the memorandum ofappeal. provisions relating to appeals by indigent person also apply to cross-objection.(4) even where the appeal is withdrawn or is dismissed for default, cross-objection may nevertheless be heard and determined.(5) respondent even though he has not appealed may support the decree on any other ground but if wants to modify it, he has to file cross-objection to the decree which objections he could have taken earlier by filing an appeal. time for filing objection, which is in the nature of appeal, is extended by one moth after service of notice on him of the day fixed for hearing the appeal. this time could also be extended by the court like in appeal.(6) cross-objection is nothing but an appeal, a cross appeal at that. it may be that the respondent wanted to give quietus to whole litigation by his accepting the judgment and decree or order even if it was partly against his interest. when however, the other party challenged the same by filing an appeal statute gave the respondent a second chance to file an appeal by way of cross-objection if he still felt aggrieved by the judgment and decree or order.'27. the learned counsel for the respondent relied upon a judgment of the apex court rendered by a constitution bench in vriddhachalam pillai v. chaldean syrian bank ltd, : [1964]5scr647 , at page 1438 in para 32 the apex court observed as follows:'we do not see any substance in this objection, because the respondent is entitled to canvass the correctness of findings against it in order to support thedecree that has been passed against the appellant.'28. there can be no quarrel with the proposition laid down by the constitution bench of the apex court. the course is available only ultimately to support the decree. once the respondent wants the reversal of the finding, he has no option except to file the cross-objections. no finding given by the court can be reversed at the instance of the respondent when he has not filed an appeal, nor preferred any cross-objections, merely because, under the first part of rule 22 he is entitled to canvass against the finding in respect of any issue while supporting the decree that such finding ought to have been in his favour. the contention of the learned counsel for the respondents that the appellants have no title, therefore, cannot be countenanced and the finding given by the court below in regard to the title of the appellants cannot be reversed in this appeal at the instance of the respondents. the explanation appended underneath sub-rule elucidates the provision further and takes away the doubt if any. this explanation has been incorporated by means of an amendment to the court under act 104 of 1976. one should not be oblivious of the fact that the decree is in favour of the respondent.29. the contention of the learnedcounsel for the defendants that the whole appeal is deemed to have been abated in view of the fact that the appeal as against defendant 3 is abated on account of the fact that the lrs. of defendant 3 have not been brought on record. the first contention of the learned counsel that a notice should have been served upon defendant 3 and cannot be dispensed with despite the fact that she remained ex parte in the suit. i see every force in his contention in view of the specific provisions of rule 14 of order 41. but here is a case where on her own showing defendant 3 is stated to have no interest over the suit property. the suit is filed fordeclaration of title and for possession. the contesting defendants are the defendants 1 and 2. defendant 3 being the wife of second defendant has been impleaded in the suit although she is not a necessary party, nor even a proper party. in view of the plea of the plaintiffs in regard to the adjustment of the rents proposed as defendant 3 filed a suit on the foot of promissory notes she might have been impleaded as a party thereto. therefore, even if no notice has been taken in the appeal as against the third respondent who was defendant 3 in the suit is of title consequence. now after the death of the second defendant ranga rao respondents 4 and 5 have been impleaded as his legal representatives being the son and daughter. it is nobody's case that other legal representatives, if any, are left out. respondents 4 and 5 being the only legal representatives of the deceased second defendant will be the legal representatives of the third defendant even. since they are already on record in whatever capacity though it has not been specifically recorded that they have been already on record it is of little consequence and the contention of the learned counsel that the appeal as against respondent 3 is abated on that score cannot be countenanced. the law is settled that even if some of the legal representatives are impleaded, not all, if they can validly represent the estate of the deceased, that is sufficient enough and the lis cannot be deemed to have been abated on account of the fact that other legal representatives have not been impleaded. when that be the clear legal position, when respondents 4 and 5 have already been there on record, contention of the learned counsel for the respondents merits no consideration.30. in regard to 25 square yards of site for which the other suit has been filed, there has been clear admission on the part of the 1st defendant therein that he has no objection to set apart 25 square yards of site from out of the suit properly inos no.135 of 1970. in view of that clear admission despite the fact that the legal representatives of the second plaintiff have filed the statements denying the claim of the plaintiffs there is no legal impediment or bar for the suit os no. 119 of 1972 being decreed in favour of the plaintiffs.31. in the result, both the appeals are allowed. under the circumstances, there shall be no order as to costs.

Judgment:

1. These appeals arise out of a common judgment and decree dated 30th November, 1979 passed by the teamed Second Additional Subordinate Judge, Vijayawada in OS Nos.135 of 1970 and 119 of 1972. AS No.1439 of 1980 is the appeal preferred against the judgment in OS No. 135 of 1970. Tr. AS No.2140 of 1983 had been preferred against the judgment and decree in OS No.119 of 1972 before the District Court, Machilipatnam and was transferred to this Court subsequently.Since the parties are common and as common questions of law and fact are involved in both the appeals they can be disposed of together.

Factual Matrix:

2. The deceased first plaintiff and the second plaintiff were husband and wife. The father of the first plaintiff by name Ali Hussain was one of the Mokhasadars of the Jagir Machavaram situate in Vijayawada. There was a suit for partition among the co-sharers of that Mokhasadars. Ultimately in the final decree passed in IA No. 365 of 1991 in OS No.37 of 1940 an extent of Ac.360 sq., yards of site fell to the share of one Naffijunnisa Begum, and 240 sq., yards of site fell to the share of the father of the first plaintiff. Second plaintiff purchased 360 sq.yards of site from the said Nqffijunnisa Begum in the year, 1955 under a registered sale deed. After the death of late Ali Hussain, the first plaintiff being the sole heir became entitled to the 240 sq., yards of site. Thus the plaintiffs 1 and 2 became joint owners of the total extent of 660 sq.,yards of site described in the schedule annexed to the plaint (for short the 'suit property'). The father of the first defendant by name Mereedu Kotaiah and the second defendant took on lease a portion of the suit properly in an extent of 210 sq., yards along with the shed thereon for their coffee hotel business for a period of three years on an yearly rent of Rs.160/- under a lease deed dated 1-6-1955. The Defendants promised to vacate the suit property by 31-5-1958. After the expiry of the period of lease they requested for a renewal of lease for a further period of three years, and in that process they took on lease the remaining 400 sq., yards of site of the plaintiffs also promising to enhance the rent, but the rent was not settled between the parties. In the meanwhile, the plaintiffs borrowed some money from the lessees under promissory notes executed by them in the name of the 3rd defendant, wife of the second defendantand one Katuri Krishnavenamma, a relation of the 2nd defendant, with an understanding that the rents payable over the suit property should be adjusted towards the repayment of the debt. The defendants failed to adjust the same, nor did they settle the lease amount. Subsequently, the father of the 1st defendant died and in his place the first defendant was in occupation of the suit properly. Contrary to the understanding, suits were filed against the plaintiffs on the foot of the said promissory notes. Therefore, the plaintiffs got issued a lawyer's notice dated 11-6-1965 to the defendants 1 and 2. The 2nd defendant having received the same on 12-6-1965 kept quiet. The plaintiffs again on 11-11-1967 got another lawyer's notice issued to the defendants 1 and 2 and also to Kaiuri Krishnavenamma. Only third defendant got a belated reply notice dated 22-5-1968 issued through her advocate. Hence, the suit for declaration of the plaintiffs' title and for possession of the suit property and also for profits.

3. The plea of the 2nd defendant, who is the only contesting defendant is that he occupied the suit property in the year 1947 and was carrying on hotel business in the suit property since then and this was to the knowledge of the plaintiffs and therefore the title even if any in favour of the plaintiffs has been extinguished as he has been there over the suit property for more than the statutory period. The 2nd defendant denied any lease as pleaded by the plaintiffs along with the 1st defendant while denying all other material averments made in the plaint.

4. In respect of 25 sq., yards of site, which had fallen short of according to the plaintiff in the suit OS No. 119 of 1972, it is his plea therein that he purchased 240 sq., yards of site which is towards west of the suit site forming part of Plot No.13, and he requested the plaintiffs in the other suit to make good the loss and at their behest he requested the defendantsto vacate the suit site to the extent of 25 sq., yards. When the defendants are evading after getting a notice issued filed the suit for declaration and for recovery. The 2nd defendant who again resisted that suit had taken up the same plea as in the other case.

5. On the above pleadings the trial Court framed the following issues at the settlement of issues.

(1) Whether the plaintiffs have title to the suit property?

(2) Whether the lease set up by the plaintiffs is true?

(3) Whether the 2nd defendant acquired title to the suit property by adverse possession?

(4) Whether the plaintiffs are entitled to the possession of the suit property?

(5) Whether the plaintiffs are entitled to claim any mesne profits and if so to what amount?

(6) To what relief?

(7) Whether the suit is bad for mis-joinder of claims?

(8) Whether the plaintiff is entitled to the possession prayed for?

(9) Whether the defendant No.2 perfected his title by adverse possession?

(10) Whether the 3rd defendant is not a necessary party to the suit?

(11) Whether the plaintiff or the 1st defendant are the owners of the plaint schedule property?

(12) To what relief?

(13) Whether the defendants 4 to 8 are necessary parties to the suit?

(14) Whether the plaint schedule site is the part of the plaint schedule site in OS No.135 of 1970 on the file of the Sub-Court, Vijayawada?

6. On a joint memo tiled by both the parties in the above suits, a common trial was conducted and during the course of trial two witnesses were examined and the documents Exs.A1 to A42 were got marked on the side of the plaintiffs. As many as 16 witnesses were examined and the documents Exs.B1 to B67 were got marked on the side of the 2nd defendant, besides marking Exs.X1 to X7 through witnesses.

7. Upon considering the evidence, both oral and documentary, available on record and upon hearing both parties the Court below dismissed the suit OS No. 135 of 1970 with costs in favour of defendants 1, 2, 4 and 5. Similarly, he dismissed the other suit also with costs to defendants 2 and 3. While dismissing both the suits the Court below held that the plaintiffs 1 and 2 to be the owners of the suit schedule property. Similarly, the Court below held that the plaintiff in the other suit to the extent of 25 sq., yards of site as the owner. However, on the issue of adverse possession believing the version of the 2nd defendant both the suits have ultimately been dismissed as aforesaid.

8. Aggrieved by the said judgment and decree, as aforesaid, both the appeals came to be filed.

9. The learned Counsel for the appellants has contended that there is sufficient evidence on record to show that the defendants 1 and 2 arc the lessees over the suit properly. It is his further contention that the 2nd defendant having taken the plea of adverse possession failed to discharge the burden in establishing the possession for over a period of twelve years preceding the date of the filing of the suit,and therefore, the trial Court ought to have decreed the suit in favour of the plaintiffs. The learned Counsel has further contended that it is not open to the defendants in the appeal to question the title of the appellants in view of the findings of the trial Court on the relevant issues.

10. The learned Counsel appearing for the contesting respondents has contended (1) that the appellants have no title and it is open to the respondent while supporting the decree to canvass against the findings which have gone against him. (2) That the third defendant in the suit who has been impleaded as respondent herein has not been served with any notice in the appeal and in the eye of law therefore there has been no appeal against her and the decree having become final in favour of the third defendant, the appeal should be dismissed in limine on that point, (3) that after the death of the respondent No.2 the legal representatives have not been brought on record and therefore the appeal as against the second respondent having become abated, the whole appeal has to be treated as having been abated, (4) that the findings in regard to the plea of adverse possession taken by the defendants having been based upon sound reasons cannot be interfered with.

11. In view of the respective contentions, the points that arise for my determination in these appeals are:

(i) Whether the appellants have established the title to the suit property?

(ii) Whether the first respondent late Ranga Rao had been in possession of the suit property from the year 1947 onwards and prescribed title thereto?

(iii) Whether it is not necessary for respondents to file cross-objections and what is the effect of the failure on the part of the respondents in not filing so?

(iv) Whether the appeal is abated as pleaded by the respondents for not bringing the legal representatives on record of the deceased second respondent?

12. It is better to refer the parties as they were originally arrayed in the suit to avoid any confusion.

13. While it is the claim of the plaintiffs that they are the owners of the suit property having got a part of it under partition pursuant to the decree passed by the Court in Original Suit No.37 of 1940 and having purchased the remaining part under a registered sale deed from one of the Mokasadars and they let out the suit property to the defendants 1 and 2 in the suit under a lease deed dated 1-6-1955 and thus the defendants are their lessees; it is the plea of the 2nd defendant who is the contesting defendant that he was in occupation of the suit property from the year 1947 onwards independently and therefore he perfected me title over the suit property by means of adverse possession. In view of the competing claims which are diametrically opposite to one another, the two contentious issues that arise for consideration are in regard to title over the property as pleaded by the plaintiffs and the title over the suit property by prescription as pleaded by the 2nd defendant while denying the factum of lease. In view of that part of decree passed by the trial Court upholding the title of the plaintiffs, in ordinary course there is nothing for this Court to adjudicate the same, but in view of the contentions raised by the learned Counsel for the respondents inviting the attention of the Court to Rule 22 of Order41 of the Code of Civil Procedure, it is expedient to advert to the same with reference to the documentary evidence, and therefore, there is nothing much for this Court to delve upon the oral evidence adduced on the point. The crucial documents being relied upon in regard thereto are Exs.A1 to A4. Exs.A 1 to A3 arethe certified copies of the compromise petition in Original Suit No.37 of 1940, decree in the said suit and the plan annexed thereto. Ex.A4 is the registration extract of the sale deed under which the second plaintiff said to have purchased a part of the suit property from one of the Mokasadars. Exs.A1 to A3 being the certified copies of compromise petition, decree and the plan are being the public documents their admissibility is beyond question. The defendant in his statement while traversing all material averments made in the plaint also in a general way pleaded that these documents do not pertain to the suit property. When PW1 deposed on oath while introducing these documents there has been no cross-examination worth the name on these documents. Apart from failure of the defendant in attacking these documents at the relevant time when they have been sought to be introduced, DW1 pleaded ignorance in the cross-examination about the partition suit and the decree passed therein pursuant to the compromise between the parties and purchase of the property by the second defendant under a registered sale deed. From a perusal of the oral evidence on record and is that PW1 and DW1 there is little doubt about the proof of these documents and their relevance to the suit property. Apart from these four documents, the plaintiffs have also relied upon Exs.B1 and A42. Ex.B1 is the sale deed in favour of the plaintiffs in the other suit in respect of a part of suit property in Plot No.13 as can be seen from Ex.A3 plan. There has been no dispute regarding the sale transaction under Ex.BI. Admittedly, the plaintiff in the other suit who purchased property under Ex.B1, which is towards western side of the suit property, has been in possession of the same. The only dispute is in regard to a bit of site admeasuring 25 square yards, which according to the plaintiff in that suit had fallen short of. It is an indicia therefore that the plaintiffs have been exercising their right over the property covered by Exs.A1 to A3by selling a part of it conferring valid title to their vendee which is not in dispute. Similarly, under Ex.A42 sale deed the property, which is towards the southern side of the suit property, was said to have been disposed of by the plaintiffs. Ex.A42 sale deed again is not in dispute. Equally it is not in dispute that the plaintiffs could convey a valid title under the said document. In view of Exs.Al to A4 the title to the suit property can clearly be seen and in view of Ex.B1 and A42 the same has been further fortified. There has been no serious dispute on the side of the defendants in regard to the claim of title over the suit property by the plaintiffs. Even according to his own plea DW1 came into possession of the suit property not knowing who was the real owner thereof, and has not set up any title independently over the suit property in himself except pleading that he has been in possession of the suit property from 1947 onwards to the knowledge of everybody including the plaintiffs and thereby prescribing the title over the suit property by means of adverse possession. The main plea of the defendants therefore is ihe prescription of title over the suit property by means of adverse possession. Plea of adverse possession undoubtedly presupposes a title over the property in another person other than the person who is setting up the plea. This further fortifies the contention of the plaintiffs that they have clear title over the suit property. The finding of the trial Court in regard to the title over the suit property in favour of the plaintiffs is well founded and there are no compelling reasons for this Court to interfere with.

14. The learned Counsel for Ihe respondents sought to contend before me that even according to the case of the plaintiffs that they sold 240 sq., yards of site under Ex.Bl and another site under Ex.A42 the aggregate of which conies nearly to the total extent of the suit property and therefore it is strange for the plaintiffs !ocontend that they are the owners of the suit property. What has been sold under Exs.A42 according to the learned Counsel for the appellants is not part of the suit property. It is a property, which is towards the southern side of the suit property. Indeed the Court below has also adverted to the same in its judgment and has rightly repelled the contention raised in regard thereto by the defendants. In regard to the property covered by Ex.Bl sale deed it is no doubt true that it is part of Plot No.13 as shown in Ex.A3 plan. Confusion seems to have arisen on account of the plea taken by the plaintiffs in the plaint in regard to the total extent of the site they got. As can be seen from the averments made in the plaint 240 sq., yards, of site has been obtained by them by means of the compromise decree in OS No.37 of 1940 and the second plaintiff having purchased 360 sq., yards of site from one of the Mokasadar the aggregate comes to 600 sq., yards, of site. The plaint schedule shows that the disputed property is in an extent of 660 sq., yards. The confusion sought to be removed by the evidence of PW1 who categorically deposed that after deducting the site covered by Ex.Bl sale deed there remained an extent of 660 sq., yards. According to the witness what the plaintiffs got under the compromise decree in OS No.37 of 1940 about 600 sq., yards covered by Plot No.13 and what they got under the original of Ex.A4 sale deed pertaining to Plot No.14 is 360 sq., yards. Now after deducting 240 square yards covered by Ex.Bl sale deed the total comes to 660 sq., yards which represents the suit property as given in the schedule. In view of this clear evidence of PW1, which remained uncontraverted and as the defendants have not seriously disputed the same the contention of the learned Counsel for the respondents cannot be countenanced. The properties covered by Ex.A42 and Ex.B1 therefore in my view are not parts and parcels of the suit property and they are distinct and separate.

15. Coming to the most contentious issue of adverse possession, while it is the case of the plaintiffs that the defendants 1 and 2 were the lessees having been inducted into possession under a written tease deed dated 1-6-1955 and continued to be in possession having taken the remaining part of the suit land after the expiry of the initial term of lease of three years, the second defendant flatly denied the same and claimed that he had come to be in possession of the suit property independently as long back as in the year 1947 itself. The plaintiffs title under the documents Exs.A1 to A4 has been upheld by the trial Court and also by this Court in view of the above discussion. In the partition suit filed by one of the Mokasadars against the others a receiver was appointed by the Court to take possession of the properly covered by that suit and eventually the receiver was said to have taken possession of the said property. In proof thereof, the plaintiffs are relying upon Exs.A8 and A9. In CMP No.8689 of 1947 the High Court of Madras appointed a receiver to take possession of the property covered by the schedule appended to the partition suit in OS No.37 of 1940. Ex.AS is the CC thereof. Ex.A9 is the certified copy of the interim report filed by the receiver. The said report was filed into the Court mention inter alia that the receiver took possession of the property on 19-10-1950. A perusal of this report leaves no doubt that none was in possession of the suit property at the relevant time. Ex.A9 is beyond controversy and in fact has not been assailed even by the defendant. Had it been a case where the second defendant as claimed by him was in possession by then, a mention would have definitely been made by the receiver about the possession of the second defendant. The conspicious absence of the relevant recital in regard thereto would definitely exclude the tall claim of the second defendant that he came to be in possession of the suit property by 1947 itself independently. It isnot a case where in view of the competing claims, the plaintiff's claim that the defendants 1 and 2 have been inducted into possession as tenants in the year 1955 and the defendants claim that they came to be in possession independently of the suit property by 1947 itself, since the claim of the defendants that they came to be in possession of the suit property by 1947 cannot been countenanced, it can automatically prove the other claim of the plaintiffs. Notwithstanding that the claim of the second defendant that he came to be in possession of the suit property by 1947 cannot be believed, it is for the plaintiffs to independently establish their plea that they have inducted the defendants as their lessees into the suit property. The only document upon which reliance has been placed very much by the plaintiffs is Ex.B1. Ex.B1 is an unregistered lease said to have been executed by the 1 st defendant in favour of the plaintiffs and said to have been attested by the second defendant. Second defendant is not obviously a party thereto. Now it is the plea of the plaintiffs further that after the expiry of the term of lease under Ex.B1, the defendants have taken the other bit of the suit properly promising to enhance the rent and thereby both the defendants continued to be in possession of whole of the suit property as lessees. To prove the plea against the second defendant Ex.B1 will not help. In view of the fact that Ex.B1 is an unregistered lease deed it is not admissible according to Section 49 of the Registration Act. No doubt, in the explanation appended thereto a document, which per se is not admissible, for want of registration can be considered by the Court for collateral purpose. The factum of lease being the contentious issue I do not think Ex.Bl can be pressed into service to prove the possession of the defendants otherwise independent of the document. I see every force in the contention of the learned Counsel for the respondents in this regardthat Ex.B1 is not available to the plaintiffs even for collateral purpose to prove the possession of the defendants. The possession of the defendants over the suit properly is an undisputed fact. The dispute only being in what capacity. Unless the plaintiffs are able to show that the defendants are lessees their plea cannot be accepted that the defendants are in permissive possession. Both sides have relied upon certain Tax receipts, demand notices said to have been issued by the Vijayawada Municipality. In their anxiety, lot of documents have been dumped in by both the parties without taking further care to connect those document to the suit property. Any way assuming for a moment that those documents pertain to the suit property they prove payment of tax over the property. It may be in the capacity of the owner or in the capacity of the possessor thereof. Ultimately the evidentiary value of the tax receipts is to prove the possession. Now, the possession being an undisputed fact these documents carry the Court nowhere. They cannot prove the status of the parties as lessees. A lot of oral evidence has been adduced on the side of the defendants by examining as many as nine witnesses as DWs.2 to 10. The defendants further sought to adduce two account books said to have been maintained by the second defendant contending that Khatas have been opened by the customers who used to visit the Coffee hotel being run by the second defendant over the suit property. A perusal of the evidence of the DW1 clearly establishes that these documents Ex.B52 and B58 came to be filed after DW1 was cross-examined in part. A suggestion had been put to this witness in the cross-examination that he was endeavouring to create evidence in regard thereto. After that suggestion both these documents Exs.B52 and B58 have been introduced into evidence. That itself takes away the efficacy of these two documents. Nothing can be culled out from these two documents to show that DWs.2 to 10used to visit the hotel and necessary entries about the amounts they owed to the second defendant came to be incorporated therein. Far from establishing the claim of these witnesses DWs.2 to 10, the way in which the documents Exs.B52 and B58 have been introduced into evidence excites suspicion and takes away the sanctity of these documents. Therefore, Exs.B52 and B58 shall have to be eschewed from consideration. Even otherwise in view of the clear documentary evidence of Exs.A8 and A9 as discussed by me supra, the very existence of the Coffee hotel by 1950 when the receiver took possession of the suit properly is excluded, Exs.B52 and B5S becomes very much doubtful. In any view of the matter they cannot substantiate the contentions of the defendants.

16. This then takes us to other question as to when the defendants have come to be in possession of the suit property. The evidence on record will not help adjudicating this issue effectively by a clear finding that on a particular date the defendants have come to be in possession of the suit property.

17. The possession of the second defendant over the suit property is an admitted fact. The plaintiffs claim that D1 and D2 have been inducted into possession. It may be mentioned here that D1 remained ex parte. The Legal representatives of Dl, who died pendenti lite, who have been added as Defendants 4 and 5 too remained ex parte. Obviously therefore, there has been no denial of the case of the plaintiffs on the part of the first defendant. But the second ^defendant independently claims to have been in possession of the properly unconnected with the first defendant. In the absence of any such plea of the second defendant perhaps there would have been some force in the case of the plaintiffs that the defendants 1 and 2 have been inducted as tenants in the suit property. In view ofmy above discussion that Ex.B1 is not available to the plaintiffs, the plaintiffs have not been able to establish the possession of the 1st defendant as a lessee over the suit property. If Ex.Bl is available to the plaintiffs, the case of the 2nd defendant that he has come to be in possession of the suit property independently could not have been countenanced. The learned Counsel for the plaintiffs contended that defendants 1 and 2 having received the registered notices, got issued by the plaintiffs under Exs.A13 and AI6, did not chose to issue any replies thereto and therefore it amounts to an admission of the claim of the plaintiffs on their part. Merely because the defendants have not chosen to give reply it cannot be concluded automatically as an admission on their part. But what emanates from the above circumstance is the conduct of the parties which is material. But conduct of the panics by ilself is not sufficient to bring home the fact of lease. Jural relationship of landlord and tenant shall have to be established by independent evidence. At any rate, in view of the scanty evidence on the point, it cannot be said the plaintiffs have been able to establish the factum of tease of the suit property. Notwithstanding the same, the possession of the second defendant over the suit property is an admitted fact; in what capacity is the only question. Now, the plaintiffs having been considered to be the title holders of the suit property, in the absence of any proof to the effect that the second defendant is a lessee and as the possession of the second defendant has been admitted, the possession of the defendant can only be that of a trespasser and nothing more than that and nothing less than that. This can be clearly culled out from the evidence and from the admitted facts.

18. To establish the ptea of adverse possession, undoubtedly the burden is upon the second defendant He should show by cogent evidence that he has been in possession of the suit property for morethan the statutory period of 12 years. Possession per se is not sufficient to prescribe title by extinguishment of the title of the real owner. The classical requirement as laid down by the Apex Court in the case of Lakshmi Reddy v. Lakshmi Reddy, : [1957]1SCR195 , is nee vi nee clan and nec precario. The possession required must be adequate, in continuity, in publicity, and in extent to show that it is possession adverse to the competitor. There is no need for this Court to quote the relevant precedents on the point of the Apex Court and various Courts in the country as the position has been well established. The possession of defendant No.2 over the suit property is only that of a trespasser. Mere possession of even a trespasser will not constitute adverse possession unless accompanied by assertion of hostile title. The relevant article which governs the period of limitation and which is germane for consideration in this regard is Article 65 of the Limitation Act. Article 65 reads as follows:

Description of suitsPeriod of limitationTime from which period begins to run

65.For possession of immoveable property or any interest therein based on title.

Twelve yearsWhen the possession of the defendant becomes adverse to the plaintiff.

19. As can be seen from the third column of the schedule the starting point of limitation is obviously the point when the possession becomes adverse to the real owner. Now, in view of the established fact that the second defendant is in possession of the property and the possession of the second defendant is that of a tress passer and the real owners of the suit property are the plaintiffs, the crucial question that crops up for consideration at this juncture is as to when the possession of the second defendant became adverse to the plaintiff. If that could be established that becomes the starting point of limitation to reckon the period oflimitation preceding to the date of filing of the suit. The learned Counsel for the respondents relied upon a judgment of this Court reported in Pedda Maddileti v. Mandli Sanjeevu, 1964 (1) An.WR 330. Obviously, that was a case, which is prior to the advent of the new Limitation Act of 1963. The contention of the learned Counsel for the respondents that the plaintiffs cannot sleep over the matter and should approach the Court within a period of limitation cannot be countenanced in view of the change of position of law from the relevant Article under the old Limitation Act, 1908 to the relevant provision under the new Act of 1963. The learned Counsel for the appellants relied upon a judgment of the Apex Court in Indira v. Arumlugam, : AIR1999SC1549 , wherein the Apex Court held as follows:

'Once title is established on the basis of the relevant documents and other evidence, unless the defendant proves the adverse possession of the prescriptive period, plaintiff cannot be non-suited. It clearly casts the burden upon the defendants.'

20. In this case, the title of the plaintiffs has been upheld. It is for the 2nd defendant, therefore, to show that his possession has become adverse to the plaintiffs who are the real owners.

21. The learned Counsel for the appellants also relied upon a judgment of the Madras High Court in Bhagavathy Pillai v. Savarimuthu, AIR 1976 Mad. 124, it has been held by the Madras High Court that the period of limitation of 12 years commences when the possession of the defendants became adverse to the plaintiffs. The Court further held that in a suit falling under Article 65, the defendant who wants to defeat the rights of the plaintiff has to establish his adverse possession for a period of 12 years which has the effect of extinguishing the title of the owner byoperation of Section 27 of the Act and that the defendant fails to do so then the plaintiff cannot be non-suited merely because he was not able to prove possession within 12 years. It is not for the plaintiff to prove possession within 12 years, but it is for the defendant to prove possession which possession is adverse to the real owner for over a statutory period of 12 years. The position being clear under the new Limitation Act the judgment of this Court relied upon by the learned Counsel for the respondents has no application to the facts. The learned Counsel for die appellants also relied upon a judgment of the Calcutta High Court reported in Premendu Bhusan Mondal v. Sripati Ranjan Chakravarty, : AIR1976Cal55 . The Calcutta High Court held that the possession of the unauthorised person cannot be adverse to true owner, but should be deemed on his behalf. I have already discussed in my judgments (supra), that mere possession of trespasser will not constitute adverse to the real owner unless accompanied by assertion to hostile title. It is therefore, germane at this stage to consider as to what is the starting point in this case from which the period of 12 years shall have to be reckoned. It may be mentioned here that there has been no whisper in the entire evidence of DW1 and other witnesses that he asserted this element of hostility claiming independent title in him against the interest of the plaintiffs. It is apt here to consider the Exs.A13 and A16. Ex.A13 is the office copy of the notice got issued by the plaintiffs to the defendants 1 and 2 on 11-6-1965. The notice has been received by the 2nd defendant under Ex.A14 acknowledgment and the 1st defendant under Ex.A15 acknowledgment. Admittedly, no reply notice has been issued denying the averments made therein. Similarly, the defendants 2 and 3 under Exs.A17 and A18 acknowledgments received Ex. A16 notice dated 11-11-1968 got issued by the plaintiffs. There has been no reply from the defendants 1 and 2. D3 who is no otherthan the wife of the 2nd defendant, no doubt got reply notice issued, but she claimed no interest over the suit property categorically therein. When the plaintiffs claimed in the respective registered notices setting up the plea of lease and then adjustment of rents towards the money advanced by the 3rd defendant and her sister there has been no denial on the part of the defendants, on the other hand, the suils on the foot of promissory notes came to be filed against the plaintiffs by D3 and her sister. Although, the controversy centered round the liability to pay the amounts covered by the promissory notes in favour of D3 and her sister, that was the first occasion where the 2nd defendant could have denied the title of the plaintiffs mentioning inter alia in no uncertain terms that his possession over the suit property was independent of any lease and against the plaintiffs. It is, therefore, not only a case that the second defendant failed to deny the case of the plaintiffs by issuing a reply nay a case where the defendant has not asserted his adverse title against the real owners. This circumstance clearly shows that there has been no assertion of adverse title by the second defendant qua the plaintiffs in support of the suit property by then. On the other hand, a tacit admission on the part of the defendants qua the plaintiffs is discernible. I, therefore, see no other piece of evidence available on record to show validly, that on a particular date the defendants asserted the hostile element. The possession of the 2nd defendant over the suit property for any length of time cannot at all be considered as adverse to the plaintiffs till such time the defendant openly asserts the same against the plaintiffs. For the above reasons, the finding of the trial Court is unsustainable. It is a clear case where the 2nd defendant has failed to establish his plea of adverse possession by any cogent evidence.

22. For the foregoing reasons, that the title over the suit property has been clearlyestablished in favour of the plaintiffs. The plea of adverse possession putforth by the 2nd defendant has not been clearly established.

23. As regards the other contention that by virtue of Rule 22 of Order 41 of the Civil Procedure Code (for short 'the Code') it is open to the respondents even to question the title of the plaintiffs in this appeal, admittedly, no cross-objections have been filed by the respondents against that part of the decree passed by the Court in regard to the title over the suit property. No Court fee required to be paid under the provisions of Court Fees Act has been paid. It is apt here to consider the provisions of Order 41, Rule 22 of the Code before adverting to the question raised by the learned Counsel. Order 41, Rule 22 of the Code insofar as relevant reads as under:

22.(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree (but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection) to the decree which he could have taken by way of appeal, provided he has filed sued objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

Explanation :--A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree insofar as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree is, wholly or in part, in favour of that respondent.

Form of objection and provisions applicable thereto - (2) Such cross-objection shall be in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.

(3) .....

(4) .....

(5) .....

24. A perusal of the said provision leaves no room for any doubt. Sub-rule (1) of Rule 22 is in two parts. The first part enables any respondent to support the decree as well as to canvass the correctness of the finding against him in the Court below and to urge that issue ought to have been decided in his favour. The second part enables him to attack the decree even without filing any appeal against the decree by filing cross-objections to the decree within one month from the date of service of notice of hearing of the appeal. Thus, it is clear that the respondent has a right not only to support the decree on any ground whether decided in his favour or against him without filing any appeal or cross-objections to the decree assailed against, but also to challenge the decree by filing cross-objections against any finding or part of the decree. The respondent, therefore, cannot request the Court to reverse the finding given against him without filing any cross-objections. His entire endeavour is only to support the decree. I am reinforced my above view by the judgment of the Apex Court in Choudhary Sahu v. State of Bihar, : [1982]2SCR178 , the Apex Court held as follows:

'The first part of this rule authorises the respondent to support the decree not only on the grounds decided in his favour but also on any of the grounds decided against him in the Court below. The first part thus authorises the respondent only to support the decree. It does not authorisehim to challenge the decree. If he wants to challenge the decree, he has to take recourse to the second part, that is, he has to file a cross-objection if he has not already filed an appeal against the decree.'

25. Relying on the said judgment, our High Court in APSRTC v. Salvaraj Vijaya, : AIR1995AP319 , held at Page 267 as follows:

'that the first limb of the rule thus authorises the respondent only to support the decree and it does not authorise the respondent to challenge the decree. If it wants to challenge the decree, it has to come on record viz., it has to file a cross-objection, if it has not filed an appeal against the decree.'

26. Very recently the Apex Court in Superintending Engineer v. B. Subba Reddy, 1999 AIR SCW 1479, considered the nature and scope of the cross-objections to be filed under Order 41, Rule 22 of the Code and laid down certain principles thus:

'From the examination of these judgments and the provisions of Section 41 of the Act and Order 41, Rule 22 of the Code, in our view, following principles emerge:

(1) Appeal is a substantive right. It is creation of the statute. Right to appeal does not exist unless it is specifically conferred.

(2) Cross-objection is like an appeal. It has all the trappings of an appeal. It is filed in the form of memorandum and the provisions of Rule 1 of Order 41 of the Code, so far as these relate to the form and contents of the memorandum of appeal apply to cross-objection as well.

(3) Court fee is payable on cross-objection like that on the memorandum ofappeal. Provisions relating to appeals by indigent person also apply to cross-objection.

(4) Even where the appeal is withdrawn or is dismissed for default, cross-objection may nevertheless be heard and determined.

(5) Respondent even though he has not appealed may support the decree on any other ground but if wants to modify it, he has to file cross-objection to the decree which objections he could have taken earlier by filing an appeal. Time for filing objection, which is in the nature of appeal, is extended by one moth after service of notice on him of the day fixed for hearing the appeal. This time could also be extended by the Court like in appeal.

(6) Cross-objection is nothing but an appeal, a cross appeal at that. It may be that the respondent wanted to give quietus to whole litigation by his accepting the judgment and decree or order even if it was partly against his interest. When however, the other party challenged the same by filing an appeal statute gave the respondent a second chance to file an appeal by way of cross-objection if he still felt aggrieved by the judgment and decree or order.'

27. The learned Counsel for the respondent relied upon a judgment of the Apex Court rendered by a Constitution Bench in Vriddhachalam Pillai v. Chaldean Syrian Bank Ltd, : [1964]5SCR647 , at Page 1438 in Para 32 the Apex Court observed as follows:

'We do not see any substance in this objection, because the respondent is entitled to canvass the correctness of findings against it in order to support thedecree that has been passed against the appellant.'

28. There can be no quarrel with the proposition laid down by the Constitution Bench of the Apex Court. The course is available only ultimately to support the decree. Once the respondent wants the reversal of the finding, he has no option except to file the cross-objections. No finding given by the Court can be reversed at the instance of the respondent when he has not filed an appeal, nor preferred any cross-objections, merely because, under the first part of Rule 22 he is entitled to canvass against the finding in respect of any issue while supporting the decree that such finding ought to have been in his favour. The contention of the learned Counsel for the respondents that the appellants have no title, therefore, cannot be countenanced and the finding given by the Court below in regard to the title of the appellants cannot be reversed in this appeal at the instance of the respondents. The explanation appended underneath sub-rule elucidates the provision further and takes away the doubt if any. This explanation has been incorporated by means of an amendment to the Court under Act 104 of 1976. One should not be oblivious of the fact that the decree is in favour of the respondent.

29. The contention of the learnedCounsel for the defendants that the whole appeal is deemed to have been abated in view of the fact that the appeal as against defendant 3 is abated on account of the fact that the LRs. of defendant 3 have not been brought on record. The first contention of the learned Counsel that a notice should have been served upon defendant 3 and cannot be dispensed with despite the fact that she remained ex parte in the suit. I see every force in his contention in view of the specific provisions of Rule 14 of Order 41. But here is a case where on her own showing defendant 3 is stated to have no interest over the suit property. The suit is filed fordeclaration of title and for possession. The contesting defendants are the defendants 1 and 2. Defendant 3 being the wife of second defendant has been impleaded in the suit although she is not a necessary party, nor even a proper party. In view of the plea of the plaintiffs in regard to the adjustment of the rents proposed as defendant 3 filed a suit on the foot of promissory notes she might have been impleaded as a party thereto. Therefore, even if no notice has been taken in the appeal as against the third respondent who was defendant 3 in the suit is of title consequence. Now after the death of the second defendant Ranga Rao respondents 4 and 5 have been impleaded as his legal representatives being the son and daughter. It is nobody's case that other legal representatives, if any, are left out. Respondents 4 and 5 being the only legal representatives of the deceased second defendant will be the legal representatives of the third defendant even. Since they are already on record in whatever capacity though it has not been specifically recorded that they have been already on record it is of little consequence and the contention of the learned Counsel that the appeal as against respondent 3 is abated on that score cannot be countenanced. The law is settled that even if some of the legal representatives are impleaded, not all, if they can validly represent the estate of the deceased, that is sufficient enough and the lis cannot be deemed to have been abated on account of the fact that other legal representatives have not been impleaded. When that be the clear legal position, when respondents 4 and 5 have already been there on record, contention of the learned Counsel for the respondents merits no consideration.

30. In regard to 25 square yards of site for which the other suit has been filed, there has been clear admission on the part of the 1st defendant therein that he has no objection to set apart 25 square yards of site from out of the suit properly inOS No.135 of 1970. In view of that clear admission despite the fact that the legal representatives of the second plaintiff have filed the statements denying the claim of the plaintiffs there is no legal impediment or bar for the suit OS No. 119 of 1972 being decreed in favour of the plaintiffs.

31. In the result, both the appeals are allowed. Under the circumstances, there shall be no order as to costs.

Subject	Limitation;Tenancy
Court	Andhra Pradesh High Court
Decided On	Aug-31-1999
Case Number	A No. 1439 of 1980 and Tr. A. No. 2140 of 1983
Judge	T. Ch. Surya Rao, J.
Reported in	2000(2)ALD30; 2000(1)ALT568
Acts	Limitation Act, 1963 - Sections 27 - Schedule - Article 65; Code of Civil Procedure (CPC), 1908 - Order 41, Rules 1, 14 and 22; Registration Act, 1908 - Sections 49; Limitation (Amendment) Act, 1908
Appellant	HussaIn Begum and Others
Respondent	Madu Ranga Rao and Others
Appellant Advocate	Mr. E.S. Ramachandra Murthy and ;Mr. S. Ramakrishna Rao, Advs.
Respondent Advocate	Mr. N.V. Suryanarayana Murthy, Adv., for Mr. V.S.R. Anjaneyulu, Adv.

HussaIn Begum and Others Vs. Madu Ranga Rao and Others - Court Judgment