( 1. ) CHALLENGE in this Second Appeal is to the Judgment and decree dated 31.08.2006 passed in Appeal Suit No.117 of 2006 by the First Additional Sub Court, Tirunelveli, wherein the Judgment and decree dated 28.10.2005 passed in Original Suit No.540 of 2004 by the Second Additional District Munsif Court, Tirunelveli are reversed.

( 2. ) THE first respondent herein as plaintiff has instituted Original Suit No.540 of 2004 on the file of the trial Court praying to declare that the plaintiff is having right of pre-emption in respect of suit property and for directing the defendants to execute a sale deed in favour of the plaintiff after receipt of Rs.45,000/- and also for directing them to hand over vacant possession of the suit property to the plaintiff, wherein the present appellant and the second respondent have been shown as defendants.

The nubble of the averments made in the plaint are that the suit property and its adjacent property are originally belonged to two brothers namely C.M.Ramadoss and Lakshmana Doss. The plaintiff is the son of C.M.Ramadoss. In the year 1982 a partition has taken place in between the plaintiff, his brother and the son of Lakshmana Doss viz., Sundara Ganesan. In the said partition, the suit property has been allotted to the said Sundara Ganesan. The northern portion has been allotted to the share of the plaintiff. On 18.07.1983 an agreement has come into existence between the plaintiff and the said Sundara Ganesan, whereby it is agreed to alienate the suit property in favour of the plaintiff. The said Sundara Ganesan has executed a usufructuary mortgage in favour of the wife of the plaintiff viz. Lakshmi Ammal in respect of the suit property. By virtue of the same, the wife of the plaintiff has been put in possession and enjoyment of the suit property. The said Sundara Ganesan has become a psychiatric patient and in fact he has led a wavered life. The first defendant and her husband have very well known about the condition of the said Sundara Ganesan and they fraudulently obtained a sale deed dated 23.05.1984 in respect of the suit property in the name of the first defendant. The first defendant has instituted Original Suit No.153 of 1986 on the file of the Principal Sub Court, Tirunelveli so as to redeem usufructuary mortgage. In Original Suit No.153 of 1986, an ex parte decree has been passed and subsequently the same has been set aside and ultimately a decree has been passed and the same has been put into execution in E.P.No.309 of 1996. By virtue of the same, possession of the wife of the plaintiff is being disturbed. The first defendant has got delivery of the suit property on 25.03.1998. Since the plaintiff is having right of pre-emption over the suit property, the present suit has been instituted for the reliefs sought for in the plaint.

( 3. ) IN the written statement filed on the side of the first defendant it is averred that the present suit is not legally maintainable and the same is also barred. It is false to say that the suit property and its adjoining property are nothing but a single unit. It is also equally false to say that there is an agreement between the plaintiff and Sundara Ganesan with regard to suit property and thereby the said Sundara Ganesan has agreed to sell the same in favour of the plaintiff. It is also false to contend that the said Sundara Ganesan has led a wavered life. Since the plaintiff is the husband of usufructuary mortgagee, he cannot claim any right over the suit property. The vendor of the first defendant has executed a usufructuary mortgage deed for a sum of Rs.10,000/- in favour of the wife of the plaintiff on 18.07.1983. The first defendant has been directed to settle the same. The period of redemption expires on 17.07.1986. Under the said circumstances, the first defendant has not been able to discharge the amount mentioned in usufructuary mortgage deed. The suit property is in possession and enjoyment of a tenant. The first defendant has insti