1. This appeal under sec. 100 of the Code of Civil Procedure is at the instance of defendant No.3. This appellant who is described as defendant No.3 was not originally joined in the suit but came to be joined in the first appeal and joined by amendment in the suit pending the first appeal.

2. Respondent No.1-original plaintiff filed Regular Civil Suit No. 11 of 1994 for releasing the suit property from conditional sale and for redemption of the mortgage of the suit property.

3. Case of the plaintiff in his suit is to the effect that there was agreement executed between his father and defendant No.1 on 7.1.1994 in respect of the suit property where-under the suit property was given on conditional sale to defendant No.1 for Rs.14,999.00 and as per the terms and conditions of the said agreement, defendant No.1 was given limited rights for 20 years and on payment of the said amount, defendant no.1 was to re-deliver the suit property to the plaintiff. It is further averred that the plaintiff had gone to defendant No.1 for paying the said amount but defendant no.1 refused to take the said amount by stating that since period under the agreement was expiring on 7.1.1994, he was not accepting the amount before that date. It is further averred by the plaintiff that on 4.1.1994, the plaintiff and his relatives had gone to the house of defendant no.1 with Rs.14,999.00 and at that time, defendant No.1 had stated that the suit property was not in his possession but it was in possession of defendant no.2 named Ramabhai Somabhai and, therefore, since he was not in possession of the suit property, he was not required to do anything. It is further case of the plaintiff that since no transaction was entered with defendant no.2 by the father of the plaintiff and since the defendant No.1 was having restricted rights and was not entitled to pass possession to the defendant No.2, suit is required to be filed requiring the defendant No.1 to take possession from defendant No.2 and to give it to the plaintiff by accepting Rs.14,999.00 and for permanent injunction against the defendant No.2 not to enter upon the suit land.

4. Suit was resisted by defendant no.1 by filing written statement at Exh. 50 inter-alia stating that the suit of the plaintiff suffered by misjoinder and non-joinder of the parties, that the plaintiff was not authorized to file the suit as heir of deceased Naranbhai, that the say of the plaintiff that the suit property was handed over by father of the plaintiff to defendant no.1 under agreement dated 7.1.1994 for a period of 20 years by way of conditional sale by accepting Rs.14,999.00 is not correct, that the suit property was cultivated by father of defendant no.1 named Kasha Rabari as tenant even before 7.1.1974 and on his death, defendant no.1 .came to occupy the land as tenant. It is further stated by defendant no.1 that the suit property was sold to appellant (defendant No.3) on 30.3.91 in presence and with consent of plaintiff for Rs.25000.00 and since then the possession is also with the appellant (defendant No.3). It is lastly stated that the owner of the land was one Madhabhai Jethabhai and plaintiff or his father was never the owner or in possession of the suit land. The plaintiff is, thus, not entitled to file the suit.

5. Defendant No.2 did not contest the suit. His right to file the written statement was closed.

6. On the basis of the pleadings of the parties, the learned trial Judge framed issues at Exh. 42 in vernacular which when translated into English read as under:

(1) Whether the plaintiff proves that the suit land was given by the deceased father of the plaintiff to defendant No.1 by conditional sale for 20 years for Rs.14,999/-?

(2) Whether the plaintiff proves that the possession of the suit field was handed over by defendant No.1 to defendant No.2?

(3) Whether the plaintiff proves that the defendants are not ready to release the property from mortgage inspite of paying the amount?

(4) Whether the plaintiff is