Short Note : Facts, in brief, leading to the present appeal were that one Charan alias Chunnilal was admittedly an absolute occupancy tenant of khasra numbers 364, 522 and 242. On 3-5-1930, khasra No. 242 was mortgaged in favour of Gangaram, father of defendants 1 and 2, vide document (Ex.D-2) by the four sons of Charan, namely, Barelal, Balaprasad, Mithoolal and Babulal (plaintiff-minor). As the plaintiff was minor on the date of mortgage, the mortgage-deed was executed on his behalf by his elder brother Barelal. On 30-7-1940, all the three fields were auctioned in lieu of excise dues standing against Balaprasad, one of the sons of Charan, Sitaram (defendant No. 3) purchased all the three fields in the said auction sale which was confirmed on 30-9-1940 and the sale certificate (Ex.D-5) was issued on 21-4-1941 under the seal of the Sub-Divisional Officer, Narsimhapur. Thereafter, auction purchaser Sitaram transferred all the three khasra numbers in favour of mortgagee Gangaram vide sale-deed dated 15-12-1941 (Ex.D-1). Thereafter, Gangaram remained in possession of the lands and after his death his sons, namely, defendants 1 and 2 remained in possession. Since defendants 1 and 2 declined to redeem the mortgage, the plaintiff filed the present suit for redemption on the ground that the auction sale of the year 1940 was invalid for various reasons and that being so, the sale by the auction-purchaser Sitaram in favour of Gangaram did not confer any right or change the character of possession of Gangaram in relation to khasra No. 242, who still continues to possess the same as a mortgagee. It was also pleaded that the entire holding was not liable to attachment and sale for the dues of Balaprasad, who had only 1/4th interest in the same. He further pleaded that no notice as required by S. 127 of the C.P. Land Revenue Act, 1917 was given to Balaprasad or to the remaining three brothers and as such the auction-sale was void in the absence of the same. He further pleaded that the auction sale was Benami in the name of Sitaram (defendant) and, therefore, the mortgagee having himself purchased the equity of redemption without the permission of the Court, the auction sale would be invalid on that count. He further pleaded that the auction sale was Benami in the name of Sitaram (defendant) and, therefore, the mortgagee having himself purchased the equity of redemption without the permission of the Court, the auction sale would be invalid on that count. Lastly, he pleaded that after the Sub-Divisional Officer decided to auction the entire holding it was necessary to issue a fresh proclamation since the earlier proclamation related to the extent of the share of Balaprasad only and not of the remaining three brothers. Since no fresh proclamation was issued before putting all the three khasras to auction, the auction sale was void. 2. As regards the defendants were concerned, only defendants 1, 2 and 3 contested the suit. Out of the remaining defendants, only defendant No. 10 filed his written-statement supporting the case of the plaintiff. So far as defendants 1, 2 and 3 were concerned, they took common pleas in their respective written-statements. According to them, after the auction sale of the year 1940 whatever rights the plaintiffs, had they stood transferred to the auction purchaser, namely, Sitaram (defendant No.3) and after be having alienated the lands in favour of Gangaram, all the rights of the plaintiff in the holding, i.e., three khasras stood extinguished. The defendants thus pleaded for the dismissal of the suit. 3. The trial Court decreed the suit of the plaintiff and the appeal filed by defendants 1 and 2 only before the lower appellate Court having failed, they went up in the present second appeal. Held : Having heard learned counsel of the parties, I am of opinion that this appeal has no merit and it must be dismissed. The first contention of the learned counsel for the appellants was that assuming that the auction-sale was void, as held by the lower appellate Court, even then the possession of Gangaram ceased to be that of a mortgagee and after remaining in possession for more than 12 years he perfected his title and equity of right of redemption stood extinguished. In support of his contention he relied on a Full Bench decision of Kerala High Court in the case of K. Gopalan Thanthri v. Ittira Kelan and others, AIR 1970 Ker 305 . In support of his contention he relied on a Full Bench decision of Kerala High Court in the case of K. Gopalan Thanthri v. Ittira Kelan and others, AIR 1970 Ker 305 . On the other hand, learned counsel for the plaintiff-respondent submitted that possession of a mortgagee under a usufructory mortgage would always be permissive of the mortgagor and it could not be otherwise unless the mortgagor agrees to change the character of the possession. In this connection he relied on a decision of the Supreme Court in Padma Vithoba Chakkayya v. Mohd. Multani and another, AIR 1963 SC 70 . It is now well settled that person who enters into possession of a property in the capacity of a mortgagee, cannot by any unilateral act or declaration of his, without consent, prescribe for a title by adverse possession against the mortgagor. But it is equally true that if a mortgagor and the mortgagee subsequently enter into a transaction under which the mortgagee thereafter becomes the owner of the property, then the possession or the mortgagee in that situation would clearly become adverse to that of the mortgagor so as to sufficiently constitute starting point for adverse possession The legal position in this regard has been clearly stated in Padma Vithoba Chakkayya's case (supra). In the present case, I was not shown from the evidence on record that the plaintiff or his brothers had at any stage given a consent to the change of the character of Gangaram from mortgagee to the owner. To say in other words, I was not shown any agreement or otherwise to show that the mortgagor had agreed with the mortgagee for the change in the animus when alone the mortgagee's permissive possession would have turned into that of any owner. In this view of the matter, the plea of adverse possession deserves to be rejected. 4. As regards the second and third contentions that the usufructory mortgage dated 3-5-1930 (Ex.D-2) was void in view of the provision of section 6 of the C.P. Tenancy Act, 1920 and therefore no decree for redemption could be passed in the present case and that a mortgagee in possession becomes an ordinary tenant under section 166 of the M.P. Land Revenue Code, 1954. I am of opinion that they cannot be permitted to be raised at this stage in the absence of any pleadings to that effect. I am of opinion that they cannot be permitted to be raised at this stage in the absence of any pleadings to that effect. They are not pure questions of law which could be decided on the basis of the evidence on record. The decision on these points, as was not disputed before me, would certainly require leading of evidence by the parties and certain decision on facts. I, therefore, did not permit these questions to be raised at this late stage. The contentions are accordingly rejected. 5. The last contention was that the auction-sale of 1940 in favour of Sitaram was valid and, therefore, the subsequent sale by him in favour of Gangaram by sale-deed dated 15-12-1941 was also valid and in consequence the right to redeem the property that was there with the plaintiff stood extinguished. The lower appellate Court has held the auction-sale invalid for the reason that no demand notices were issued to or served upon the defaulter, Balaprased, and the co-sharers, one of which is the plaintiff. I could not be shown from the evidence on record that the said finding of facts is vitiated in any manner. It has, therefore, to be accepted that no demand notices were issued as required by section 127 of the C.P. Land Revenue Act, 1917. It was tried to be contended by the learned counsel for the appellants that a distinction has to be drawn for a notice under section 127 of the C.P. Land Revenue Act which relates to recovery of arrears of land revenue and the one which is issued for the recovery of a sum as arrears of land revenue. But this point is no more in controversy having been settled by a Division Bench decision of the Court in Premchand Ramchand v. Board of Revenue and others, 1964 RN 311 : 1964 JLJ 363 : 1964 MPLJ 337. In that case the matter related to recovery of Taccavi loan and as no notice was issued to the defaulter the sale was held to be a nullity. There, the provisions of sections 1-134 and 135 of the M.P. Land Revenue Code, 1954 were under consideration which are in pari materia with sections 127 and 128 of the C.P. Land Revenue Act, 1917. I, therefore, hold that the view taken by the lower appellate Court that the auction-sale stood vitiated for want of notice is correct. There, the provisions of sections 1-134 and 135 of the M.P. Land Revenue Code, 1954 were under consideration which are in pari materia with sections 127 and 128 of the C.P. Land Revenue Act, 1917. I, therefore, hold that the view taken by the lower appellate Court that the auction-sale stood vitiated for want of notice is correct. 6. Before parting with this appeal, I would like to mention here the contention of the learned counsel for the plaintiff that the lower appellate Court was not right in holing that the provisions of section 131 of the C.P. Land Revenue Act, 1917 are not mandatory and as such even if any irregularity was committed in holding the auction that would not vitiate the sale. In my opinion, the said view of the lower appellate Court is not correct. A perusal of section 131 makes it clear that the provisions of Order 21, rule 66 of the Code of Civil Procedure would govern the attachment and sale of property under that Act. It cannot, therefore, be doubted that the compliance of the provisions of Order 21, rule 66 of the Code is mandatory. A similar view was taken by this Court in Motilalsa v. Kundanlal and others, [Misc. (First) Appeal No. 15 of 1966, decided on 22-11-1966] with which I agree. That being so, in the present case as there was no compliance of the provisions of Order 21, rule 66(2) of the Code of Civil Procedure inasmuch as no sale proclamation was drawn after due notice to the decree-holder and the judgment-debtor (defaulter in the present case), the sale was also void on that count Appeal dismissed.