JUDGMENT N. C. Sil, J.: This appeal has been directed against the judgement and decree dated 11.6.1991 and 30.7.1991 passed by Sri. P. L. Dutta, learned Assistant District Judge, First Court, Alipore in connection with Title Suit No. 72 of 1984 and the judgement and decree dated 22.7.1992 and 28.7.1992 passed by Sri. S. K. Bhattacharya, learned Additional District Judge, Tenth Court, Alipore in connection with Title Appeal No. 342 of 1991. 2. The suit was for eviction of unauthorised occupant and also for mesne profit. The trial court was pleased to decree the suit. The learned Additional District Judge allowed the appeal and set aside the judgement and decree passed by the trial court. 3. On perusal of the materials on record the following substantial questions of law have been formulated for consideration of the present appeal: “1. Whether it is a case of tenancy or licensee. 2. Whether the defendant was the co-tenant of the original landlord.” 4. Mr. Ashoke Banerjee, appearing for the appellant/plaintiff argues before me that initially Jaybir Para Tea Company (hereinafter referred to as “Tea Company” for convenience.) was the tenant of the suit premises. It is also argued by him that the defendant and the Directors of the plaintiff Company were the Directors of the said Tea Company. It is also pointed out by him that all the Directors of the said Tea Company shifted their residence to the suit premises. Subsequently, Mr. Banerjee has pointed out, the defendant sold his entire share in the said Tea Company to his other two brothers who were the Directors of the said tea Company. Those two brothers are Anand Kumar Himatsingka and Bharat Kumar Himatsingka. Incidentally, it may be stated that it appears from paragraph 4 of the plaint that the defendant was a Director and later became the Managing Director of the said Tea Company and Anand Kumar Himatsingka, Bharat Kumar Himatsingka and Gajanand were the other Directors of the said Tea Company. Gajanand is the father of the defendant Rajendra Kumar. It is also the plaint case that Anand Kumar & Bharat Kumar thereafter allowed Rajendra Kumar, the defendant to stay in the suit premises as a licensee. Gajanand is the father of the defendant Rajendra Kumar. It is also the plaint case that Anand Kumar & Bharat Kumar thereafter allowed Rajendra Kumar, the defendant to stay in the suit premises as a licensee. The said Tea Company thereafter surrendered their tenancy to the landlady and the Tea Company was sold to a third party, the present plaintiff company and the third party carried on business from a different place. Subsequently, Anand Kumar and Bharat Kumar formed a new Company which is the plaintiff in the instant case and both the brothers became the Directors of the said Company and the plaintiff Company was inducted by the landlady as tenant in respect of the entire premises. Mr. Banerjee, thus, argues before me that the moment the present plaintiff Company was inducted in the entire suit premises as tenant, the defendant became a licensee and when the defendant, despite the request of the Directors of the plaintiff Company did not vacate the suit premises, became trespasser. 5. Mr. Bidyut Kumar Banerjee, appearing on behalf of the respondent/defendant argues before me that the parties are the brothers to each other and they have been residing in the suit premises since 1976. It is also pointed out by him that the said Tea Company had four Directors (as we have stated from, what is mentioned in paragraph 4 of the plaint). It is also pointed out by him that the defendant was in occupation of the second floor. It is pointed out by Mr. Banerjee appearing on behalf of the respondent that the case of the appellant was that the said Tea Company surrendered its tenancy on 31.8.1981, but the first appellate court found that schedule 'A' was not surrendered and that the defendant was a licensee. Mr. Banerjee in his usual frankness admitted that on 2.11.1981 the new tenancy including the property described in schedule 'A' was created in favour of the appellant Company. He has pointed out to the observation of the first appellate court that despite the creation of the new tenancy the possession of the respondent/defendant was not affected. It is further argued by him that the said Tea Company continued till August, 1981. It is pointed out by Mr. Banerjee that no notice to quit was served upon the respondent/defendant by the appellant/plaintiff. It is also pointed out by Mr. It is further argued by him that the said Tea Company continued till August, 1981. It is pointed out by Mr. Banerjee that no notice to quit was served upon the respondent/defendant by the appellant/plaintiff. It is also pointed out by Mr. Banerjee that the arbitrator, the D. W. 3 was never cross-examined and the arrangement made by him was described as “family arrangement”. It is further argued that such family arrangement cannot be disturbed and the same cannot be equated with licence. Mr. Banerjee has referred to the ratio decided in the case of Krishna Kumar Khemka vs. Grindlays Bank P. L. C., AIR 1991 SC 899 , in which it was held as below: "Where a lease was created in respect of four flats with certain Bank but subsequently, the bank surrendered a portion of the tenancy namely two flats, the surrender of part of tenancy did not amount to implied surrender of entire tenancy and it could not be said that in respect of the remaining two flats a new tenancy was created in contravention of an injunction order passed by the Court restraining transfer of the tenanted premises. A surrender of a part does not amount to implied surrender of the entire tenancy and the rest of the tenancy remains untouched. Likewise the mere increase or reduction of rent also will not necessarily import a surrender of an existing lease and the creation of a new tenancy. Also, merely because there is a change in a tenancy namely that it has become a monthly tenancy, it does not amount to a new tenancy." 6. Mr. Banerjee has also referred to the ratio decided in the case of Tarabai Jivanlal Parekh vs. Lala Padamchand, AIR 1950 Bombay 89, in which the following decision was made:- "Surrender consists in the yielding up of the term by tenant to landlord. There must be delivery of possession by the tenant to the landlord and the acceptance of possession by the landlord. It is a mutual act between the landlord and the tenant. Where the Government takes possession of the property under a requisition order under section 75 (a) of Defence of India Rules, 1939, there is no mutuality in it because they take possession both from the landlord and from the tenant. It cannot therefore operate as surrender so as to terminate the tenancy." 7. Mr. Where the Government takes possession of the property under a requisition order under section 75 (a) of Defence of India Rules, 1939, there is no mutuality in it because they take possession both from the landlord and from the tenant. It cannot therefore operate as surrender so as to terminate the tenancy." 7. Mr. Banerjee appearing for the respondent/defendant has also argued before me that although no cross appeal has been filed by the respondent against the observation of the first appellate court to the effect that the defendant was a licensee the respondent is entitled to go against that decision in the second appeal and in this connection Mr. Banerjee has referred to the ratio decided in the case of Ravinder Kumar Sharma vs. State of Assam & Ors., AIR 1999 SC 3571 , in which it was, inter alia, held that the respondent-defendant in an appeal can, without filing cross-objection attack an adverse finding upon which a decree in part has been passed against the respondent, for the purpose of sustaining the decree to the extent the lower court had dismissed the suit against the defendant/respondent. It was also held in that case that the filing of cross-objection after 1976 Amendment is purely optional and not mandatory. 8. In reply Mr. Asoke Banerjee, appearing for the appellant/plaintiff argues before me that the ratio decided in the case of Tarabai (supra) has got no application in the instant case as tenancy is governed by contract. 9. There are some striking features of the case which are as follows: 1. The Tea Company and not the Directors were the tenant under the landlady. 2. The defendant was one of the Directors of the said Tea Company along with his other brothers. 3. The defendant sold out his entire share in the Tea Company to his other brothers who were also the Directors of that Tea Company. 4. The said Tea Company was sold to a third party. 5. The tenancy of that Tea Company was surrendered to the landlady. 6. The other brothers floated the present plaintiff Company and it was inducted as tenant by the landlady in respect of the entire premises including the suit property under the occupation of the defendant. 10. All the above facts are admitted by both the parties. 5. The tenancy of that Tea Company was surrendered to the landlady. 6. The other brothers floated the present plaintiff Company and it was inducted as tenant by the landlady in respect of the entire premises including the suit property under the occupation of the defendant. 10. All the above facts are admitted by both the parties. Now, it is the case of the plaintiff Company that since the defendants and the Directors of the plaintiff Company are all siblings, the Directors of the plaintiff Company permitted the defendant to occupy the suit premises as a licensee on condition to vacate the same on demand. Such demand was placed verbally to the defendant to vacate the suit premises but to no good and hence the suit was filed. The defence case on the other hand is that the defendant is not the licensee but a co-tenant in respect of the suit premises and he had paid the proportionate 1/3rd share of the rent. 11. Here in the instant case the situation in some intervening periods deserves due consideration. Thus, even after the selling of his entire share in the Tea Company to his other brothers, the defendant was in possession of the suit premises and during the interregnum period between the surrender of tenancy by the Tea Company and the induction of the plaintiff Company as tenant in respect of the entire suit premises the defendant is in possession of the suit property. In fact, he is still in possession of the suit property. There is also a story of arbitration and of family settlement which was of course not relied upon by both the courts below. 12. In the background of all above let it be visualised what was the position of the defendant when he had sold out his entire share to his other brothers. Admittedly, none of the Directors was individually the tenant under the landlady but the Tea Company, of which the brothers including the defendant were the Directors, was the tenant and as such when the defendant was not having any share in the Tea Company his possession in the suit property cannot be anything more than a licensee unless it is proved that he had paid any rent and the same was accepted. Similar is the situation during the intervening period of surrender of tenancy by the said Tea Company and the induction of the plaintiff Company into the entire suit premises including that of the defendant, as tenant. 13. The claim of the defendant that he was a co-tenant and he had paid proportionate rents was not accepted by either of the courts below. No proof so worthy had been produced by the defendant before the courts below to substantiate his claim that he had paid any rents for the purpose of his occupation. This has ineluctably led me to come to the conclusion that the defendant cannot be a co-tenant in respect of the suit premises by any sense and he was a licensee simpliciter. That being the position the moment the plaintiff Company asked to the defendant to vacate the suit premises, the defendant became the trespasser in respect of the suit premises. 14. In the case of Krishna Kumar Khemka (supra) only two out of four flats were surrendered and thus the Hon'ble Apex Court held that the surrender of a part of the tenancy does not amount to implied surrender of the entire tenancy. That is not the position in the instant case. In the instant case the defendant had sold out his entire share in the Tea Company to his other brothers and thereafter the said Tea Company being the tenant had surrendered the entire premises including the one under the possession of the defendant. Accordingly, the ratio decided in the case of Krishna Kumar Khemka (supra) does not appear to have any application in the instant case. In the case of Tarabai (supra) the Bombay High Court observed that the surrender of tenancy is a mutual act between the landlord and the tenant and having applied that principle the learned Judge did not find any such mutuality in that case inasmuch as the Government did not merely serve the order of requisition on the tenant, but served an order of requisition on the landlord, so that they took possession of the premises both from the tenant and from the landlord. Even applying that decision in the instant case we find no role for the defendant to play in the instant case in the matter of surrender of tenancy by the Tea Company to the landlady, for, neither the defendant nor his two other brothers was/were ever the tenant but the Tea Company itself. From that point of view the ratio decided in the case of Tarabai does not also come to any help for the defendant/respondent. 15. Now, in terms of the provisions of Order 41 Rule 22 of the Code of Civil Procedure and having relied upon the ratio decided in the case of Ravinder Kumar Sharma (supra) as referred to by the learned Advocate for the respondent. I am inclined to hold that it is absolutely optional for the respondent to challenge any adverse finding without filing any cross-objection. The first appellate court appears to have misdirected itself to observe that the plaintiff Company did not get possession of the flat in occupation of the defendant when the plaintiff Company was inducted as tenant in respect of the entire suit premises and as such the plaintiff Company cannot grant any licence and consequently cannot revoke such licence also. It is also the observation of the first appellate court that it was the landlady only who can revoke the licence granted to the defendant. The first appellate court does not appear to have taken the entire campus of the case into consideration and he appears to have totally ignored the fact that the landlady has not come forward to claim that the defendant was a licensee under her. Moreover, it is also not the case of the defendant himself that he was a licensee under the landlady and as such the first appellate court appears to make out a third case in this regard which is not at all permissible. It may be pointed out here that although the first appellate court accepted the decision of the trial court that the defendant was a licensee but it eschewed it self to affirm the judgment of the trial court under the wrong impression that the defendant was the licensee under the landlady and so the plaintiff Company cannot revoke such licence of the defendant. 16. In view of what has been discussed in the foregoing lines the present appeal is liable to be allowed. 16. In view of what has been discussed in the foregoing lines the present appeal is liable to be allowed. Accordingly, the appeal is allowed on contest. The judgement and decree passed by the first appellate court is hereby set aside. The judgement and decree passed by the trial court is hereby affirmed. 17. The parties are directed to bear their respective costs. 18. A copy of the judgement along with the L.C.R. be sent down to the courts below. Appeal allowed.