(Appeal filed against the Judgment and Decree of the Subordinate Judge, in A.S.No.8/1982 dated 30.07.1983 filed against the Judgment and Decree of the Principal District Munsif, Srivilliputhur, in O.S.No.526/1980 dated 23.12.1981.)

Plaintiff in O.S.No.526/1980 - the third Defendant in O.S.No.53/1983, is the Appellant. Earlier, by the Judgment dated 24.12.1977, both the second appeals were allowed holding that the Plaintiff is entitled to redeem the Othi and recover possession. As against the said Judgment, the unsuccessful first Defendant has preferred appeal before the Supreme Court in C.A.Nos.4440 and 4441 of 1999. Observing that the High Court has assumed jurisdiction under Section 100 CPC without framing a substantial question of law, the Supreme Court has set aside the Judgment of the High Court and remitted back the matter to the High Court for fresh disposal, in accordance with law. Accordingly, both the second appeals are before this Court for fresh consideration.

2.For convenience, the parties are referred to their original rank in O.S.No.526/1980. In O.S.No.526/2000, the Suit Property originally belonged to one Sadagopachariar. He Othied the Suit Property in favour of one Thangamani Ammal, wife of the first Defendant Arumugam Pulavar, on 22.02.1958, for Rs.300/-. Thangamani Ammal died, leaving first Defendant and second Defendant – her husband and son as her Legal Representatives. The Mortgagor Sadagopachariar died leaving the third Defendant as his only heir. Fourth Defendant is the son of third Defendant.

3.In O.S.No.526/1980, case of the Plaintiff is that he purchased the Suit Property from Defendants 3 and 4 on 31.08.1979. As per the recitals of the Sale Deed, the Plaintiff was directed to discharge Othi dated 22.02.1958 in favour of Thangamani Ammal. Further case of the Plaintiff is that after his purchase, he sent notice (Ex.A-3) to Thangamani Ammal and to the Defendants 1 and 2 demanding possession of the Suit Property, claiming benefit under Act 40/1979. D-1 has issued a Reply Notice stating that there is a Sale Agreement dated 02.12.1974. The Plaintiff has no knowledge of the Agreement of Sale and that he is a bonafide purchaser for value without notice of the Sale Agreement. Hence the Plaintiff has filed O.P.No.3/1980 for redemption and thereafter, the said Petition was dismissed as not pressed, since the Plaintiff, as purchaser of the equity of Redemption, is not entitled to the benefits under the said Act. Inspite of lawyer's notice, Defendants 1 and 2 had failed to deliver possession of the Suit Property after receiving the Othi amount. Hence the Plaintiff has filed the suit for redemption and for future mesne profits.

4.First Defendant has filed the Written Statement contending as:-

Thiruvengadachariar – D-3, S/o Sadagopachariar has executed an Agreement of Sale in writing on 02.12.1974 with the consent of his father. In the recitals of the Sale Agreement, it was agreed that D-1 should discharge the Othi dated 22.02.1958 and the amount payable towards the Mortgage Deed dated 24.07.1963 was also to be adjusted. The third Defendant and his father should execute the registered Sale Deed on or before 05.02.1975. In furtherance of the Sale Agreement, D-1 gave up his claim under the Mortgage Deed (Ex.B-2). D-1 has been in possession of the Suit Property pursuant to the Agreement of Sale. Thereafter, he has spent amount in reclaiming the Suit Property. His acts of possession are only in furtherance of the Agreement of Sale. D-1 was always ready and willing to perform his part of the contract. Inspite of his readiness, D-3 had failed to execute the Sale Deed as per the Agreement and his whereabouts were actually not known to D-1. Since D-1 is already in possession of the Suit Property, the Plaintiff is not entitled for redemption of the mortgage and for future mesne profits.

5.D-1 has filed the additional Written Statement contending that he is entitled to defend his possession under Section 53 of the Tr