JUDGMENT :

The plaintiffs are the appellants.

2. The plaintiffs filed O.S.No.280 of 1989 before the Additional District Munsif Court, Srivilliputhur for the relief of redemption of mortgage and for recovery of possession. The suit was decreed by the trial Court. The defendant filed A.S.No.50 of 1994 before the District Court, Srivilliputhur. The learned District Judge was pleased to allow the appeal and dismissed the suit. As against the same, the plaintiffs have filed the above second appeal.

3. The plaintiffs had contended that the suit property originally belonged to one Kuppusamy Naidu. The said Kuppusamy Naidu and his son Ramasamy Naidu have jointly mortgaged the suit schedule property under Exhibit A1 on 20.08.1958 in favour of one Nachiar Ammal and Govindasamy. On 11.09.1965, the mortgagees have made over the mortgage under Exhibit A2 in favour of one S.K.Ramasamy. The said S.K.Ramasamy has made mover the mortgage on 21.05.1975 under Exhibit A3 in favour of the defendant. On 21.05.1975 under Exhibit A4 a sub mortgage was created by the original owner namely Ramasamy Naidu and his minor son in favour of the defendant. On 15.02.1977, the original owner Ramasamy Naidu and his minor son have executed a registered sale deed under Exhibit A5 in favour of one Kamalammal. The legal heirs of the Kamalammal are the plaintiffs. Along with the plaint, the mortgage money of Rs.15,000/- was deposited and the plaintiffs prayed for redemption of mortgage and recovery of possession from the defendant.

4. The defendant filed a written statement admitting Exhibits A1 to A4 othi deeds and the sub mortgage. The defendant did not dispute Exhibit A5 sale in favour of the plaintiffs. The only contention of the defendant was that she had executed a registered lease deed on 12.12.1977 under Exhibit B1 in favour of one Ramasamy and he is in possession of the suit schedule property. According to the defendant, the suit is bad for non-joinder of the said lessee of the property.

5. The trial Court considered the sequences of documents from Exhibits A1 to A5 and arrived at a finding that the plaintiffs are the purchasers from the original mortgagor. Hence, they are entitled to redeem the suit schedule property from the mortgagee namely the defendant. At the time of arguments, the defendant raised a plea that the property mortgaged under Exhibit A1 is only having an extent of 52 ½ cents, but Exhibit A5 sale deed in favour of the plaintiffs is having an extent of 57 ½ cents which is shown as the suit schedule property. The trial Court rejected the said contention on the ground that no such defence with regard to the extent of land has been raised in the written statement. The trial Court proceeded to decree the suit as prayed for.

6. The First Appellate Court has considered the boundary recital in Exhibits A1 and A5 and also the extent of property covered under Exhibits A1 and A5 and arrived at a finding that the suit schedule property does not tally with the property mortgaged under Exhibit A1. On the said ground, the appeal was allowed and the suit was dismissed. As against the same, the present second appeal has been filed by the plaintiffs.

7. The second appeal has been admitted on the following substantial questions of law:

“1. Whether the first appellate Court was right in holding that the non-joinder of the lessee of Othidar (Mortgagee), in a suit for redemption and possession by the purchaser from the mortgagor with a right of redemption is fatal to the case?

2. Whether the first appellate Court was right in holding that the suit property is different from mortgage property especially when the said dispute was never raised by the defendant but on the other hand admitted throughout?”

8. The learned counsel for the appellants had contended that there is no discrepancy between Exhibit A1 mortgage deed and Exhibit A5 sale deed. He further contended that the defendant has not raised a plea in the written statement disputing the identity of the suit schedule p