Judgment : 1. This appeal is by the unsuccessful plaintiff, whose suit, O.S.No.1540 of 1996 for declaration and possession was dismissed by the trial Court under judgment and decree dated 17.02.2004. 2. Mr. V. Venkataramana, learned senior counsel for the appellant, has pointed out that the impugned judgment of the trial Court has proceeded to dismiss the suit merely on the plea of the respondents/defendants that they are in adverse possession, though there is no issue framed nor the defendants have established any ingredients of adverse possession. 3. Per contra, Mr. J. Kanakaiah, learned counsel for the respondents/defendants, submits that the plea of adverse possession is only an alternate plea and even ignoring the finding of the trial Court on that aspect, the suit was rightly dismissed on the ground that the plaintiff had failed to adduce any documentary evidence in support of her claim for title. 4. The aforesaid rival contentions, therefore, need to be considered and resolved. PLEADINGS: 5. The plaint allegations proceed to state that the suit schedule house originally belonged to the Andhra Pradesh Housing Board and it was allotted to one Arifa Begum. She is stated to have entered into an agreement of sale with one Mehrunnisa Begum on 18.01.1961 and the said purchaser came into possession of the property since then. Later, there were disputes between Arifa Begum and Mehrunnisa Begum, which resulted in civil suits, being O.S.Nos.269 and 280 of 1968 and further appeal, being A.S.No.86 of 1974 before the Chief Judge, City Civil Court, Hyderabad. In the said civil proceedings, the purchaser, Mehrunnisa Begum succeeded and the vendor, Arifa Begum, executed a registered sale deed in favour of Mehrunnisa Begum dated 22.02.1980, marked as Ex.A5 and accompanied by plan, Ex.A6. It is alleged that Mehrunnisa Begum gifted the property to her son, defendant No.1, under oral gift deed dated 20.12.1980 and later executed a memorandum recording the said gift on 27.01.1983. It is stated that the first defendant, thereafter, executed a registered sale deed dated 09.10.1996, Ex.A3, in favour of plaintiff. It is stated that though the sale deed recites delivery of possession to the plaintiff, the first defendant, in fact, stated, at the time of registration of sale deed, that his maternal uncle and his family are residing in the said house and that they would vacate the said house in two or three days of registration. It is stated that though the sale deed recites delivery of possession to the plaintiff, the first defendant, in fact, stated, at the time of registration of sale deed, that his maternal uncle and his family are residing in the said house and that they would vacate the said house in two or three days of registration. The plaintiff, allegedly, believed the said version and accepted the execution and registration of sale deed but her subsequent efforts to get possession failed, ultimately, leading to filing of the present suit, which was filed on 15.11.1996. 6. The first defendant, vendor of the plaintiff, remained ex parte. Defendants 2 to 6, 8 and 9, who are occupiers, filed a common written statement denying the plaint allegations. Defendants, however, did not contravert the ownership of Arifa Begum but disputed that there was any agreement with Mehrunnisa Begum or that there was any sale deed in her favour. They also denied the gift, allegedly, executed by Mehrunnisa Begum in favour of the first defendant, vendor of the plaintiff and also denied the title of the plaintiff. The sheet anchor of their case was that neither Mehrunnisa Begum nor the first defendant was ever in possession of the suit house and that the defendants continued to remain in possession of the suit house since 1977 and as such, they claimed that the said possession is open, uninterrupted and thereby, the defendants claimed title by adverse possession. 7. On the basis of the aforesaid pleadings, the trial Court framed the following issues for consideration: 1. Whether the plaintiff is entitled for the declaration, as asked for? 2. Whether the plaintiff is entitled for the past mesne profits of Rs.2000/- 3. Whether the defendants are liable to be evicted from the suit schedule property? 4. Whether the plaintiff is entitled to the future mesne profits @ Rs.2000/- from the date of suit till the delivery of possession? 5. Whether there is no cause of action for the plaintiff to file the suit? 6. Whether the suit is barred by limitation? 7. To what relief? 8. Oral and documentary evidence was led by both sides. Plaintiff examined her husband, also her GPA, as P.W.1 and an attestor of Ex.A3 sale deed, as P.W.2. 5. Whether there is no cause of action for the plaintiff to file the suit? 6. Whether the suit is barred by limitation? 7. To what relief? 8. Oral and documentary evidence was led by both sides. Plaintiff examined her husband, also her GPA, as P.W.1 and an attestor of Ex.A3 sale deed, as P.W.2. Plaintiff filed GPA in favour of P.W.1, as Ex.A1; judgment in the suit between Arifa Begum and Mehrunnisa Begum was marked as Ex.A2 followed by Exs.A5 and A6 sale deed and the plan in favour of Mehrunnisa Begum; Ex.A3 is the original sale deed accompanied by Ex.A4 plan executed by the first defendant in favour of the plaintiff; Ex.A7 is the tax receipt dated 09.06.1997 showing that the plaintiff paid the tax for the suit house and Ex.A8 is the certified copy of the municipal tax assessment receipt for the year 1980 to show that the house property originally standing in the name of the APHB was transferred to Arifa Begum and then to Mehrunnisa Begum and then to the first defendant and the plaintiff. The second defendant examined himself as D.W.1 and his cousin brother was examined as D.W.2. The defendants marked Exs.B1 to B66, which are all documents, such as passport, bank passbook, electricity board passbook, letters, electoral card, electricity bills, money order acknowledgement etc. to establish that the address of the defendants is shown as that of the suit house where they are residing. 9. The trial Court, on consideration of the oral and documentary evidence and while considering the issues 1, 3 and 6 together, dismissed the suit on the ground that the defendants are shown to be in possession for more than 12 years prior to filing of the suit and hence, held that the defendants acquired title by adverse possession. The trial Court found on other issues that the first defendant has remained ex parte and the plaintiff failed to prove that his vendor or his mother were ever in possession of the property. Consequently, the suit was held to be beyond the period of limitation and dismissed the suit. 10. Mr. Vedula Venkataramana, learned senior counsel for the appellant/plaintiff, contended that the trial Court has completely gone wrong in not appreciating that the defendants have not set up any title themselves nor they have shown by their pleadings as to how they came into possession. 10. Mr. Vedula Venkataramana, learned senior counsel for the appellant/plaintiff, contended that the trial Court has completely gone wrong in not appreciating that the defendants have not set up any title themselves nor they have shown by their pleadings as to how they came into possession. Learned senior counsel submits that the plaintiff having established title, in the absence of rival title established by the defendants, their plea of adverse possession could not have been upheld by the trial Court. Learned senior counsel also points out that the defendants did not dispute the title of Arifa Begum in the written statement and subsequent flow of title to Mehrunnisa Begum is evidenced by the judgment and decree of the civil Court marked as Ex.A2 and the registered sale deed, Ex.A5. Further flow of title of the first defendant in favour of the plaintiff under Ex.A3 and plan, Ex.A4, clearly establish that the plaintiff is the title holder and as such, there was no ground to deny the relief of declaration of title and possession, as the defendants never pleaded adverse possession in terms of requirement of law. Learned senior counsel placed reliance upon various decisions of the Supreme Court to which reference will be made at appropriate place. 11. Mr. J. Kanakaiah, learned counsel for the respondents, on the other hand, submits that the first defendant was not examined nor the alleged gift deed executed by Mehrunnisa Begum in his favour was produced. Learned counsel also points out that the original sale deed of Mehrunnisa Begum was also not produced and as such, the link in the flow of title is clearly absent so far as plaintiff is concerned. Learned counsel points out that though the first defendant is the son of Mehrunnisa Begum, the transfer of title of Mehrunnisa Begum through the first defendant to the plaintiff cannot be accepted as other sons and daughters of Mehrunnisa Begum are not joined in the said transfer. Learned counsel submits that the plea of adverse possession is an alternate plea and that the defendants had proved by ample evidence that they are in possession since 1977 continuously and openly. 12. On consideration of the rival pleadings and contentions, the following points arise for consideration. 1. Whether the plaintiff has successfully established her title to the property especially keeping in view the pleadings of the defendants? 2. 12. On consideration of the rival pleadings and contentions, the following points arise for consideration. 1. Whether the plaintiff has successfully established her title to the property especially keeping in view the pleadings of the defendants? 2. Whether the findings of the trial Court upholding the plea of adverse possession raised by the defendants are justified? POINT No.1: 13. It has to be noticed that the present suit is one for possession based on title. Hence, Article 65 of the Limitation Act applies and the pleadings of the parties have to be appreciated from the point of view of requirement of the said article. Article 65 of the Limitation Act is as follows: Description of suits Period of Limitation Time from which period begins to run 65. For possession of immovable property based or any interest therein based on title. Twelve years When the possession of the defendant becomes adverse to the plaintiff It would be noticed from the above that such suit for possession based on title can be resisted by the defendants by pleading that they are in possession adverse to the claim of the plaintiff for over a statutory period of 12 years. 14. The written statement of the respondents/defendants is, primarily, based on the plea of adverse possession from 1977 and the defendants have conspicuously neither claimed any title nor have they stated as to how they came into possession of the property. 15. With this background if we examine the pleadings of the defendants, on record, it would be evident that the plaintiff’s claim for title is in the following manner, which can also be described as the flow of title, as claimed by the plaintiff. The house property originally belongs to APHB, which allotted the same to Arifa Begum. The said Arifa Begum entered into an agreement of sale with Mehrunnisa Begum, which resulted into a dispute and resolved by judgment and decree, Ex.A2 and thereafter, executed sale deed, Ex.A5 dated 22.02.1980 in favour of Mehrunnisa Begum. Later, Mehrunnisa Begum executed oral gift in favour of her son dated 20.12.1980 and thereafter, executed a memorandum confirming the same dated 27.01.1983 in favour of her son/first defendant. The first defendant executed, Ex.A3, sale deed accompanied by plan, Ex.A4 dated 09.10.1996 in favour of the plaintiff. 16. Later, Mehrunnisa Begum executed oral gift in favour of her son dated 20.12.1980 and thereafter, executed a memorandum confirming the same dated 27.01.1983 in favour of her son/first defendant. The first defendant executed, Ex.A3, sale deed accompanied by plan, Ex.A4 dated 09.10.1996 in favour of the plaintiff. 16. As mentioned above, in para 4 of the written statement the defendants state that “… With regard to para 3 of the plaint which relates to ownership of Arifa Begum these defendants have nothing to say …”. Evidently, therefore, the title of Arifa Begum is not in dispute. Subsequent title which flowed to Mehrunnisa Begum also cannot be disputed as it is evidenced by a decree of a competent civil Court, as referred to above. It is true that the subsequent memorandum of gift by Mehrunnisa Begum in favour of the first defendant is not produced as it is said to have been lost by the plaintiff. The sale deed, Ex.A3 and plan, Ex.A4, conveyed all right, title and interest of the first defendant in favour of the plaintiff. Even assuming, therefore, that the gift in favour of the first defendant from Mehrunnisa Begum was not established, the first defendant, admittedly, is the only son of Mehrunnisa Begum. The said part is evident from the following statement of witnesses. 17. In the cross-examination of P.W.1, it is stated that “… Mehrunnisa Begum had only one son by name Aziz (D.1). It is incorrect to say that Mehrunnisa Begum had four sons apart from D.1 …”. D.W.1 states in cross-examination dated 12.03.2003 that “… It is true that Mehrunnisa Begum is the mother of D1 … “. The defendants have not produced any evidence to show that Mehrunnisa Begum had other children also apart from the first defendant and as such, from the evidence on record, it has to be held that the first defendant was the only son of Mehrunnisa Begum. Thus, irrespective of whether the gift in his favour is established or not, the first defendant takes the property of Mehrunnisa Begum, as the only son and successor in the absence of any other claim or evidence of any other claim on record. Moreover, the first defendant does not dispute the title claimed by the plaintiff and remained ex parte and did not contest the suit. Moreover, the first defendant does not dispute the title claimed by the plaintiff and remained ex parte and did not contest the suit. The sale deed, Ex.A3, executed by the first defendant in favour of the plaintiff conveys right, title and interest of Mehrunnisa Begum, which devolves on the first defendant, to the plaintiff. In the absence of any plea of title set up by the defendants, the title of the plaintiff has to be held to have been established. The trial Court has, obviously, failed to notice all these aspects and had not discussed or bestowed its attention to the crucial documents and pleadings, as referred to above. I, therefore, hold that Point No.1 deserves to be answered and is answered in favour of the appellant/plaintiff. POINT No.2: 18. So far as plea of adverse possession raised by the defendants is concerned, the following legal position is required to be kept in mind for appreciation of the said plea. 19. The decision of the Supreme Court in NEDUNURI KAMESWARAMMA v. SAMPATI SUBBA RAO ( AIR 1963 SC 884 )is relied upon by the learned senior counsel for the appellant to substantiate that when the parties went to trial fully knowing their rival case and led evidence, absence of an issue cannot be said to be fatal. Based on the said proposition even if there is no issue as regards adverse possession, it cannot be said that the judgment of the trial Court is vitiated only on that ground. Similarly, the Supreme Court in SAROOP SINGH v. BANTO (2005) 8 SCC 330 ) points out the distinction between Articles 142 and 144 of the schedule appended to the Limitation Act, 1903 and the corresponding Articles 64 and 65 under the Limitation Act, 1963. Paras 28 to 31 of the said decision, which are extracted below, clearly spell out the principle: “28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant-Appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred. 29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date defendant's possession becomes adverse. [See Vasantiben Prahladji Nayak and Others vs. Somnath Muljibhai Nayak and Others (2004) 3 SCC 376 ] 30. ‘'Animus possidendi'’ is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the Appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. [See Md. Mohammad Ali (Dead) By LRs. Vs. Jagdish Kalita and Others, (2004) 1 SCC 271, para 21] 31. Yet again in Karnataka Board of Wakf vs. Government of India and Others [ (2004) 10 SCC 779 ], it was observed: "Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession." In HEMAJI WAGHAJI JAT v. BHIJHABHAI KHENGARBHAI HARIJAN (2009) 16 SCC 517 ) a classic requirement of plea and proof of adverse possession was noticed by the Supreme Court. Para 23 is relevant, which is extracted hereunder: “23. This court had an occasion to examine the concept of adverse possession in T. Anjanappa v. Somalingappa [ (2006) 7 SCC 570 ]. The court observed that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. The court further observed that: “20. … The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.” 20. The pleadings and evidence on the part of the defendants though proceeds to claim that they are in possession of the house property since 1977, no where they have stated as to how they came into possession. As noticed from the legal position, extracted above, a party setting up an adverse possession must establish that it is claiming open, hostile possession against the person known to be interested in the property i.e. real owner. The party setting up adverse possession must establish its animus to possess, obviously, to the true owner. In the absence of animus and showing that it is claimed against the real owner, the possession for any length of time cannot fructify into adverse possession. The evidence of the defendants, in the present case, is inconsistent inasmuch as though their written statement is silent, in the evidence, D.W.1 has tried to project as if the house property stands in the name of one Asifa Begum, who is stated to be D.W.1’s real grand mother. The evidence of the defendants, in the present case, is inconsistent inasmuch as though their written statement is silent, in the evidence, D.W.1 has tried to project as if the house property stands in the name of one Asifa Begum, who is stated to be D.W.1’s real grand mother. Similarly, the water connection is stated to stand in the name of Syed Ibrahim, who is stated to be his paternal uncle. Thus, during the evidence, the plea of setting up title in Asifa Begum and Syed Ibrahim is tried to be projected contrary to the written statement accepting the title of Arifa Begum. Various documents filed and accepted by the defendants though show that the defendants are residing in the suit house but that by itself is not sufficient to establish the plea of adverse possession. The said Asifa Begum or Syed Ibrahim, were not allottees from APHB, as the title of APHB stood transferred to Arifa Begum, which was admitted by the defendants in their written statement. The said plea of the defendants by setting up title in Asifa Begum, therefore, is totally without any foundation and basis, apart from the fact that their written statement is silent on that aspect. 21. Further, cross-examination of P.W.1 by the defendants does not even give any suggestion as to adverse possession to her and the cross-examination proceeds to claim title through Asifa Begum. In the cross-examination of D.W.1, he admits that though he claimed that Asifa Begum is her grand mother, he does not know the name of her husband and he does not have any record nor any document showing when Asifa Begum died nor he has any document to show allotment in her favour from APHB. He also accepts that he has never stated in the written statement about the possession of Asifa Begum over the suit property. He also accepts that he does not know as to in whose name the mutation of the house stands in the municipal record. While D.W.1 also accepts knowledge of all transactions between Arifa Begum and Mehrunnisa Begum and thereafter, Mehrunnisa Begum to the first defendant and from the first defendant to the plaintiff, he, however, states that he is not a party to the said documents. The evidence, on record, therefore, does not satisfy the requirement of establishing adverse possession. 22. Mr. While D.W.1 also accepts knowledge of all transactions between Arifa Begum and Mehrunnisa Begum and thereafter, Mehrunnisa Begum to the first defendant and from the first defendant to the plaintiff, he, however, states that he is not a party to the said documents. The evidence, on record, therefore, does not satisfy the requirement of establishing adverse possession. 22. Mr. J. Kanakaiah, learned counsel for the respondents, placed reliance upon the judgment of this Court in EO, SRI BRAMARAMBA MALLIKARJUNA SWAMY TEMPLE v. SAI KRUPA HOMES ( 2010 (6) ALD 207 ) for the proposition that in a suit for declaration of title the onus is entirely on the plaintiff and the plaintiff must establish not only his title but the title of his vendor also. Learned counsel also relied upon a decision of the Supreme Court in RANGAMMAL v. KUPPUSWAMI (2011) 12 SCC 220 ) to claim that onus will shift to the opposite party only when plaintiff proves the validity and genuineness of the document relied upon. That decision, in my view, is not relevant. Learned counsel placed strong reliance upon a decision of the Supreme Court in M.M.B CATHOLICOS v. M.P. ATHANASIUS ( AIR 1954 SC 526 ) for the proposition that plaintiff in an ejectment suit must succeed on the strength of his own title and not on the weakness of the defendants. The above proposition is also unexceptionable. It is also well settled that any one of the co-owners can also seek ejectment. In fact, in EO, SRI BRAMARAMBA MALLIKARJUNA SWAMY TEMPLE’s case (4 supra) it is stated as under: “ADVERSE POSSESSION: - 37. This leaves the last main contention of the learned counsel for the plaintiffs that their title is established by adverse possession on the ground that their vendors were in possession of the suit lands for over 30 years. The legal position with regard to claiming adverse possession is well settled as per the decision of the Supreme Court in AMRENDRA PRATAP SINGH’s case (6 supra) and the relevant paras 22 and 23 are extracted hereunder: “What is adverse possession? 22. Every possession is not, in law, adverse possession. The legal position with regard to claiming adverse possession is well settled as per the decision of the Supreme Court in AMRENDRA PRATAP SINGH’s case (6 supra) and the relevant paras 22 and 23 are extracted hereunder: “What is adverse possession? 22. Every possession is not, in law, adverse possession. Under Article 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of 12 years calculated from the date when the possession of the defendant becomes adverse to the plaintiff. By virtue of Section 27 of the Limitation Act, at the determination of the period limited by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter's title. It is that extinguished title of the real owner which comes to vest in the wrongdoer. The law does not intend to confer any premium on the wrong doing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and re-enter into possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. Inaction for a period of 12 years is treated by the Doctrine of Adverse Possession as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession. 23. Inaction for a period of 12 years is treated by the Doctrine of Adverse Possession as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession. 23. The nature of the property, the nature of title vesting in the rightful owner, the kind of possession which the adverse possessor is exercising, are all relevant factors which enter into consideration for attracting applicability of the Doctrine of Adverse Possession. The right in the property ought to be one which is alienable and is capable of being acquired by the competitor. Adverse possession operates on an alienable right. The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognized by doctrine of adverse possession as having been alienated involuntarily, by default and inaction on the part of the rightful claimant, who knows actually or constructively of the wrongful acts of the competitor and yet sits idle. Such inaction or default in taking care of one's own rights over property is also capable of being called a manner of 'dealing' with one's property which results in extinguishing one's title in property and vesting the same in the wrong doer in possession of property and thus amounts to 'transfer of immovable property' in the wider sense assignable in the context of social welfare legislation enacted with the object of protecting a weaker section.” 38. Learned counsel for the appellants contended that the possession claimed by the respondents is not continuous and is sporadic. The hostile, open and continuous possession has to be established by the person claiming adverse possession. In the present case, even assuming that the plaintiffs or their predecessors were in possession, the plaintiffs have failed to establish that they had any animus to possess the land adversely. The adverse possession, in order to fructify into a title must also be against true owner.” 23. As discussed in the paragraphs above, adverse possession, as pleaded by the defendants is firstly neither against the true owner nor against the person having interest in the property. Further, as to how the said possession originated is also not stated nor the point of time when it became adverse is pleaded or proved. In the absence of these vital ingredients, therefore, it cannot be said that defendants have established adverse possession. Further, as to how the said possession originated is also not stated nor the point of time when it became adverse is pleaded or proved. In the absence of these vital ingredients, therefore, it cannot be said that defendants have established adverse possession. The finding of the trial Court upholding adverse possession pleaded by the defendants merely on the ground that the defendants were in possession since 1977 is clearly erroneous and unsustainable as mere possession for any length of time would not convert itself into adverse possession. Point No.2 is accordingly held against the defendants. 24. In the result, the appellant is entitled to declaration and possession. The suit deserves to be decreed as prayed for to the extent of relief of declaration and possession. To the extent of relief of mesne profits is concerned, no evidence is adduced by the plaintiff in support of her plea of mesne profits or its quantum. Hence, the plaintiff is relegated to the trial Court to make an application under Order XX Rule 12 of the Code of Civil Procedure, 1908 and seek determination of mesne profits. However, such determination shall be confined from the period of three years prior to the suit and thereafter. The appeal is accordingly allowed with costs throughout. As a sequel, the miscellaneous applications, if any, shall stand dismissed