Meredith, J.This is an appeal under the Letters Patent by defendant 1 against a decision of Das J. The suit was for the ejectment of defendant 1, and other defendants who were his mortgagees, and for damages by way of mesne profits for four years. The plaintiff claimed that the. land which was comprised in plot No. 4124 of the Dhanbad Bazar, was his khas patit land and the defendants had trespassed thereon by erecting houses.

2. The appellants defence was that his father bad taken settlement of the land from the previous proprietor of the estate forty years previously, and that, alternatively, he had acquired. a good title by adverse possession for forty years. There was a further plea that the suit was bad for defect of parties.

3. The learned Munsif held that the suit land was not included in the kabuliyat under which the defendant claimed tikuri jamai right, and that right had, accordingly, not been established. Nor was there, in his opinion, any title by adverse possession since he found the appellant had been in possession only from 1932. Though, however, his decision upon the question of title was in favour of the plaintiff, he held that there could be no decree for ejectment because there was defect of parties, some of the mortgagees cot having been impleaded as defendants. He, therefore, gave the plaintiff merely a decree for RS. 100 as damages for use and occupation.

4. The plaintiff appealed; the defendants did not. But before the learned Subordinate Judge defendant 1 sought to re-open the question of title. The Subordinate Judge refused to enter into that because there had been no cross-appeal, and holding that the ground upon which the Munsif had refused a decree for ejectment was not sound, he allowed the appeal and decreed the suit in full.

5. Defendant 1 came up to this Court in second appeal, and contended that the Subordinate Judge was wrong in law in holding that he could not attack the finding regarding title without filing a cross-appeal. Das J. rejected this contention and dismissed the appeal.

6. In my opinion, Das J. was perfectly correct. Mr S.N. Bose for the appellant urges that there was no need for his client to appeal against the Munsifs decree because it was entirely in his favour. He had claimed to prescribe only for the limited interest of a tenant, and did not assert that he was not liable to pay rent. The rent which he would have to pay under the kabuliyat would be exactly the same as the amount of damages awarded. It was not, therefore, necessary for him to challenge the decree in so far as it awarded compensation because he was not interested to dispute it. He was really asking to support the decree upon a ground decided against him, as he was entitled to do under the provisions of Order 41, Rule 22, Civil P.C.

7. This argument is ingenious, but, in my opinion, it is not sound. It is a mere coincidence that the amount awarded as damages happened to be the same as, the rent would have been. But though the sum might be the same, the nature of the payment was entirely different, and, in my opinion, in seeking to challenge the decision as to title, the appellant was also in effect challenging the decree against him which was a decree for damages, based on an adjudication that he had no title and was a mere trespasser. He was highly interested in challenging the decree in so far as it did amount to an adjudication to that effect because it left it open to the plaintiff to bring a fresh suit for ejectment and negatived his claim that he had a permanent tenancy interest. The decree for damages was only consistent with an adjudication that the defendant was a trespasser. That this represents the true position is, I think, evident from the appellants grounds of appeal in this Court. As one of his grounds he took: "For that the plaintiff in any circumstances is not entitled to any compensation," and it is to be noticed that in his written statement also he had asserted that the claim for compensation was wholly unfounded. In my opinion, what was sought to be done was not to support the decree, but to challenge it in this regard, to avoid the decree for compensation a compensation, which the appellant sought to do without having preferred any appeal himself. Order 41, Rule 22 enables the respondent only to support the decree upon such grounds decided against him, not to challenge it.

8. As I have already stated it seems to me that the whole argument is based on a mere coincidence, and had the amount awarded as compensation come to more than the rent, as might well have been the case, Mr. Bose could not have put it forward with any force. I would dismiss this appeal with costs.

Agarwala C.J.

I agree.