Judgment : Defendants in O.S.No.46 of 1994, on the file of the Senior Civil Judge, Tadepalligudem, are the appellants. The 1st respondent filed the suit, pleading that her husband, late Suryanarayana, purchased the suit schedule premises, through sale deed dated 15.3.1948, and thereafter, executed a settlement deed dated 19.8.1966, marked as Ex.A-1, creating life interest in her, and thereafter, in favour of her son, by name Gopalam, and the vested remainder, in favour of male children of said Gopalam. According to her, the premises were leased to the father of the appellants, by name Someswara Rao in the year 1963, and after execution of Ex.A-2, the tenancy stood attorned to her. Someswara Rao is said to have executed a lease deed for a period of 11 months, in favour of the 1st respondent, on 5.1.1968, marked as Ex.A-3. Reference was made to the fact that late Suryanarayana borrowed certain amounts from Someswara Rao and repaid the same. It was alleged that Someswara Rao failed to pay the rents from December 1977 onwards, and in spite of issuance of notice, marked as Ex.A-6, neither the premises were vacated, nor the rent was paid. She prayed for eviction of appellants and recovery of arrears of rents. On behalf of the appellants, a written statement was filed, disputing the contents of the plaint. It was pleaded that the 1st respondent had already filed RCC No.5 of 1990, before the Rent Controller, Tadepalligudem, and that the suit is not maintainable. It was alleged that only a vacant site was leased, and that the constructions were brought about, at a later point of time, by the appellants themselves. An oral sale of the suit schedule premises was also pleaded. In the alternative, it was alleged that the lease was for an indefinite period, and that they cannot be evicted. It was also alleged that notice, as required under Section 106 of the Transfer of Property Act, for short "the Act", did not precede the filing of the suit. They have also taken the plea that they have perfected the title by adverse possession. The trial court framed necessary issues, and decreed the suit, through judgment, dated 20.9.2000. Aggrieved thereby, the appellants filed A.S.No.160 of 2000, in the Court of I Additional District Judge, West Godavari at Eluru. They have also taken the plea that they have perfected the title by adverse possession. The trial court framed necessary issues, and decreed the suit, through judgment, dated 20.9.2000. Aggrieved thereby, the appellants filed A.S.No.160 of 2000, in the Court of I Additional District Judge, West Godavari at Eluru. During the pendency of the appeal, respondents 2 and 3 have purchased the suit schedule property from the 1st respondent. Hence, they were impleaded as parties to the appeal. The appeal was dismissed on 30.12.2005. Hence this Second Appeal. Learned counsel for the appellants, submits that the suit was filed by the 1st respondent, at a time, when RCC No.5 of 1990 was pending, and that it was not at all maintainable. He contends that no notice, under Section 106 of the Act, was issued and that the notice, which was marked as Ex.A-6, does not hold good, for the purpose of these proceedings. Learned counsel submits that the 1st respondent, who was the sole plaintiff before the trial court, was not examined as a witness, and thereby, the suit claim cannot be said to have been proved. He had placed reliance upon certain judgments, in support of his contentions. Learned counsel for the 1st respondent, and respondents 2 and 3 on the other hand, submits that though RCC No.5 of 1990 was filed, the appellants themselves took a plea that the RCC was not maintainable, on the ground that lease was in respect of a vacant site, and in that view of the matter, the suit was filed. They pleaded that once RCC No.5 of 1990 was dismissed, on the plea taken by the respondents, no objection, as to the maintainability of the suit can be raised. They further contend that Ex.A-6 was issued, requiring the appellants to vacate the premises, and that the same would hold good, for the purpose of this suit also. The non-examination of the 1st respondent is said to be, on account of her age and bad health. They further pleaded that no substantial question of law arises for consideration in the Second Appeal, and that the same deserves to be dismissed. The original ownership of the premises by the husband of the 1st respondent, or the relationship of lessor and lessee, between him and the father of the appellants, was not disputed. They further pleaded that no substantial question of law arises for consideration in the Second Appeal, and that the same deserves to be dismissed. The original ownership of the premises by the husband of the 1st respondent, or the relationship of lessor and lessee, between him and the father of the appellants, was not disputed. The 1st respondent based her claim upon a settlement deed, marked as Ex.A-1 and existence of tenancy in her favour under Ex.A-3. On the basis of the pleadings, the trial court framed the following issues: "1) Whether the plaintiff is entitled for vacant possession of the plaint schedule property? 2) Whether the father of the defendants perfected his title over the plaint schedule property by adverse possession? 3) Whether the plaintiff is entitled for past and future profits as prayed for?" Strictly speaking, the 2nd issue ought not to have been framed, once the respondents did not dispute that their induction into property was as lessees. In fact, in their reply to Ex.A-6, they admitted that not only late Someswara Rao was inducted as tenant by the husband of the 1st respondent, but also that they are the tenants of the 1st respondent. On behalf of the 1st respondent, her son was examined as PW.1. PW.2 is a doctor, who explained about the health condition of the 1st respondent. Exs.A-1 to A-10 were marked. On behalf of the appellants, Dws-1 to 4 were examined and Exs.B-1 to B-6 were marked. The suit was decreed. The lower appellate court proceeded to discuss the matter, with reference to the points framed by it, viz; "1) Whether the plaintiff is entitled to possession of the suit schedule property after vacating the defendants therefrom; 2) Whether the plaintiff is entitled to past and further mesne profits against the defendants;" and answered both of them in favour of the respondents herein. In this Second Appeal, the following questions arise for consideration, in view of contentions urged on behalf of the appellants, viz; a) Whether the suit, as framed by the 1st respondent, was maintainable; b) Whether the non-examination of the 1st respondent as a witness was fatal; and c) Whether there is valid quit notice, as contemplated under Section 106 of the Act. The first contention is urged on the ground that even by the time the suit was presented, RCC No.5 of 1990 was pending before the Rent Controller, Tadepalligudem and that the suit ought not to have been entertained. It is a matter of record that the 1st respondent filed RCC No.5 of 1990, stating that the suit premises, together with structure thereon, was leased to the father of the respondents and that there was a willful default in payment of rent. The appellants filed a counter affidavit stating that only a vacant land was leased, and thereby, the Rent Controller does not have jurisdiction to entertain the RCC. On her part, the 1st respondent took plea on its face value and filed the suit. In fact, RCC No.5 of 1990 was dismissed, by accepting the plea of the appellants. The appellants cannot be permitted to blow hot and cold, and deny all possible remedies to the 1st respondent. If the present contention is to be accepted, the 1st respondent is not entitled to file RCC, because the schedule property was only a vacant land, when it was leased, and the suit cannot be filed, because RCC was presented by the respondents. Such an approach cannot be countenanced in law. So far as the second contention is concerned, learned counsel is not able to place any statutory provision, or a precedent to the effect that a party to a suit must invariably depose as a witness. Howsoever desirable it may be, that a party to the suit must depose as a witness, law does not prohibit non-party witness to be examined on behalf of the parties. For instance, where a party to a suit is a minor, or is a Paradanasin lady, or incapacitated on the ground of health, or not available on account of residence at a far of place, any person, who is otherwise posted with the facts and authorized by the party, can depose as a witness. The ratio of the judgment in Vidhyadhar v. Mankikrao AIR 1999 SC 1441 , relied upon by the learned counsel for the appellants is that where a party does not depose as a witness, adverse inference is to be drawn. However, the said inference can be drawn, if only the witness was otherwise in a position to depose, but had failed to do so, wantonly. However, the said inference can be drawn, if only the witness was otherwise in a position to depose, but had failed to do so, wantonly. In such cases, it can be inferred that had the party deposed as a witness, he or she would not have been able to substantiate the contents of the plaint or written statement, as the case may be. In the instant case, the 1st respondent is fairly old. Her age is said to be 96 years now, and in the year 2000, when the trial of the suit started, she was 90 years old. (PW.1 was examined on 4.7.2000). Therefore, her son deposed as PW-1, on her behalf. PW.2, a medical practitioner was also examined. She stated that the 1st respondent is 90 years old and that she has no power of remembrance due to old age. She issued a certificate to this effect, which was marked as Ex.A-10. Nothing was elicited through PW.2 to discredit her version. Therefore, it cannot be said that non-examination of 1st respondent as a witness is, in any way, detrimental to her interest, or her claim in the suit. Coming to the last question, it is urged that the suit was filed in the year 1994, and it was not preceded by any notice under Section 106 of the Act. In fact, at various stages of the proceedings, the appellants disputed the very tenancy. The 1st respondent got issued a quit notice dated 25.1.1982, marked as Ex.A-6. The receipt of the same is not disputed. In fact, a detailed reply dated 1.2.1982 was issued to the same, and it is marked as Ex.A-8. The plea taken by the appellants, disputing the very existence of tenancy and claiming independent title in them, is demolished with the recitals in Ex.A-8. For example, the opening sentence in the 4th paragraph reads as under: "My client has been the tenant of the site covered by your notice schedule for over 30 years, carrying on his business by constructing sheds etc., in it with his own funds." So far as the tenancy in favour of the 1st respondent is concerned, Ex.A-2 reads as under: "From the date of the Registered settlement deed, my client has been paying the monthly rent of Rs.100/- regularly to your client. Your notice allegations that my client paid rent up to 30.11.1977 regularly and thereafter fell in arrears of rent and committed default and did not pay the same in spite of repeated disputes raised by your client and her son are absolutely false and concocted by your client in collusion and consent with her son. There is absolutely no default on the part of my client in paying rents to your client and there is no question of my client becoming liable for eviction from the schedule site." It is obviously for this reason that the lower appellate court did not feel the necessity to deal with the question of adverse possession. Learned counsel for the appellant strongly urges that Ex.A-6, cannot be treated as valid for a suit, which was filed about 12 years thereafter. He places reliance upon the judgment of the Madras High Court in KAZHUGUMALAI RAJA v. R.P.B.I.S.P.N. FUND AIR 2004 MADRAS 267. It is not in dispute that Ex.A-6 can be treated as a quit notice, under Section 106 of the Act. The said provision does not insist that the consequential suit must be filed within a particular time. In Kazhugumalai's case (2 supra), the Madras High Court dealt with a case, where in, the proceedings seeking eviction were initiated under Tamil Nadu Buildings (Lease and Rent Control) Act, for short "Tamil Nadu Act". On not being successful in the same, the owner of the property filed a suit. In that case, a notice, as contemplated under the Tamil Nadu Act, was issued before the proceedings were initiated under it. At no point of time, a notice under Section 106 of the Act was issued, before a suit for eviction of a tenant was filed. The Madras High Court held that the notice issued under the Tamil Nadu Act, cannot be treated as the one, under Section 106 of the Act, and thereby, the suit ought not to have been decreed. The facts in the instant case are totally different. A notice under Section 106 of the Act was issued and the filing of the suit, on the basis of the notice, was intervened by institution of RCC No.5 of 1990. No notice is required to be issued under the A.P. Buildings (Lease and Rent and Eviction) Control Act. The facts in the instant case are totally different. A notice under Section 106 of the Act was issued and the filing of the suit, on the basis of the notice, was intervened by institution of RCC No.5 of 1990. No notice is required to be issued under the A.P. Buildings (Lease and Rent and Eviction) Control Act. Ex.A-6 continued to retain its character, and filing of RCC No.5 of 1990 did not have any effect upon it. Therefore, it can safely be treated as a quit notice, for the purpose of O.S.No.46 of 1994 also. Hence, the contention advanced on behalf of the appellants cannot be accepted. The Second Appeal does not merit any consideration, and it is accordingly dismissed. Learned counsel for the appellants submits that his clients may be granted reasonable time for vacating the premises. Having regard to the fact that the tenancy was in existence, for the past several decades, and that the appellants need some breathing time, to secure alternative premises, they are granted time till 31.12.2006, subject to their payment of rent. The decree passed by the trial court and upheld by the lower appellate court shall stand affirmed in all respects, except that the eviction shall be deferred till 31.12.2006. There shall be no order as to costs.