Sulaiman, Ag. C.J.
1. This is a defendant's appeal arising out of a suit for possession of certain occupancy holdings and mesne profits. The plaintiffs claimed to have inherited this property as the collaterals of Mt. Zainab, the deceased wife of the contesting defendant Muhammad Zafaryab Khan. The defence was that the property was in the possession of the defendant in his own right and' that he had been in adverse possession of it as against his own wife. There was a further plea that the defendant being a lambardar and a cosharer in the village, and the suit having been brought more than six months after the death of Mt. Zainab, was barred 'under Section 79, Agra Tenancy Act. The claim was decreed, against the defendant The defendant preferred an appeal and the plaintiffs filed certain cross-objections after the time allowed by law.
2. A preliminary objection is taken on behalf of the respondents that the appeal has abated. What happened was that during the pendency of the appeal Muhammad Zafaryab Khan died, and an application was made on behalf of his second wife, Mt Zubeda Begam, alleging that she was the only heir of the deceased defendant. Notice was issued to the plaintiffs-respondents, but they did not appear. An order was passed ex parte bringing Mt. Zubeda Begam on the record as the legal representative of Muhammad Zafaryab' Khan. Subsequently the respondents applied to this Court for a declaration that the appeal had abated on the ground that some of the heirs of Muhammad Zafaryab Khan had not been brought on the record in time. This application was referred to a Bench of two Judges who held that the ex-parte order could not be re-opened and that Mt. Zubeda Begam must be treated as the legal representative of the deceased. As the property in dispute in this case consisted mainly of occupancy holdings it might have been thought that under Section 22, Agra Tenancy Act, the widow was the only heir to this property. However, the order of the Bench holding that the matter cannot be re-opened is now final.
3. We might also point out that under Section 2, Civil P.C. 'legal representative' does not necessarily mean all the heirs under the personal law, but means some person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased. Order 22, Rule 5 requires that when the question of the claimant being the legal representative of a deceased party arises the Court shall determine that question. The provisions in Rules 3 and 4 show that after the Court has determined that a particular person is the legal representative, it shall proceed with the suit. It is, therefore, quite obvious that for the purposes of this appeal it must be taken that Mt. Zubeda Begam is the legal representative of the deceased appellant, and, therefore, it is not now open to the respondents to urge that the appeal has abated, because some other heirs have been left out.
4. In our opinion the plea that the claim was barred by Section 79, Agra Tenancy Act, is not tenable. That section only applies 'when a tenant has been 'ejected' other-wise than in accordance with the provisions of this Act. In the present case it is an admitted fact that the possession of the defendant over the one-third share has continued all along and that the plaintiffs were never in actual possession of this share and.cannot accordingly be said to have been dispossessed or ejected. Section 79, Agra Tenancy Act, therefore, has no application, and the claim is not barred by the provisions of that section.
5. In the Court below the position taken up by the defendant was that there was some sort of compromise or settlement of a family dispute under which he was allowed this one-third share. Only oral evidence was produced in support of this, and the Court below which heard that evidence has not believed it. In our opinion it is highly improbable that any such compromise could have been arrived at. According to the defendant, Muhammad Zafaryab Khan, this compromise took place some time towards the end of 1921, long after the death of Mt. Zainab. There was litigation between the parties which was hotly contested, and it was not till November 1922 that this case was decided. It is inconceivable that the parties had compromised the dispute privately while they were going on fighting in a Court of law. We, therefore, see no good ground for taking a different view on this question of fact from that taken by the learned Subordinate Judge.
6. The plea of adverse possession can also be disposed of easily. It is admitted that the husband and wife were living together amicably and that there was never any hostility or ill-feeling between them. It is, therefore, difficult to believe that the possession of the defendant was adverse against his own wife who was living under his own protection. As a matter of fact, the defendant stated that he had himself placed some of his property in the name of his wife, and it is, therefore, strange that he should assert adverse possession against her. It might also be pointed out that in the former litigation the Court actually held that Muhammad Zafaryab Khan, the husband of Mt. Zainab, had possession over the holdings then in dispute simply as an agent of Mt. Zainab. That finding was based on the deposition of Muhammad Zafaryab Khan himself. It, therefore, seems to us that the plea of adverse possession is futile and must be rejected. The result, therefore, is that the appeal must be dismissed with costs.
7. As regards the cross-objections, they were filed beyond time and the respondents are not entitled to press them without explaining the delay.
8. As a matter of fact, however we find that these cross-objections were based entirely on a misapprehension. The learned Subordinate Judge has held in favour of the plaintiffs that they are entitled to mesne profits, and in the operative portion of the order which he passed he has given them a decree for recovery of future mesna profits till the date of possession. Under Section 2(12) mesne profits are defined as profits which are actually received or might with ordinary diligence have been received, together with interest on such profits. Thus the decree for future mesne profits includes interest on such profits.
9. We accordingly dismiss both the appeal and the cross-objections with costs.