Judgment :- These two appeals are by the same two persons Ponnusamy and Rasu who defendants in O.S.No.1014 of 1978, on the file of Sub-Judge, Tiruchirapalli (against A.S.No.588 of 1981 arises) and plaintiffs in O.S.No.662 of 1980 on the file of Sub Tiruchirapalli (against which A.S.No.445 of 1983 arises). The sole plain-tiff in O.S.No. of 1978 namely, Sachidananda Pillai is the sole respondent in A.S.No.588 of 1981 and 4th respondent in the other appeal A.S.No.446 of 1983. He died pending the appeals and L.Rs. have been brought on record. The suit O.S.No. 1014 of 1978 if for specific performance of Ex.A-7, the deed of surrender of tenancy-right, executed by the first defendant Ponnusamy on. 23.9.1978, whereby the said Ponnusamy after receiving a consideration Rs.10,000 surrenders his right of tenancy over the suit land in favour of the plaintiff Sachidananda Pillai, who subsequently becomes the owner of the suit property under deeds Ex.A-1, dated 9.4.1979, Ex.A-2, dated 9.4.1979 and Ex.A-3, dated 30.1.1980 the respective previous owners of the suit property who are defendants 1 to 3 in the No.662 of 1980 and respondents 1 to 3 in A.S.No.446 of 1983. Though the abovesaid deeds Exs. A-1 to A-3 came into being, a little later, after Ex.A-7, Ex.A-7 itself recites that the plaintiff, even on the date of Ex.A-7, had agreed to purchase property from the abovesaid owners. 2. The other suit O.S.No.662 of 1980 is filed by the appellants about 2 years former suit O.S.No.1014 of 1978, and prays for an injunction against the said former of the suit property and the abovesaid Sachidanandam Pillai, the subsequent purchaser. defence plea in O.S.No.1014 of 1978, is that the said Ex.A-7 was not executed voluntarily and there was no free consent in execution of the same. The other defence is that defendant Rasu alone is the cultivating tenant of the said land and not the first defendant, contended by the plaintiff Sachidanandam Pillai. The further defence is that the execution Ex.A-7 is opposed to public policy and hence also Ex.A-7 is not valid. The same also raised as the plaint allegations in O.S.No.662 of 1980. In this suit, the defendants 3, the erstwhile owners of the suit property, remained ex parte and the pleas of defendant-Sachi-danandam Pillai are almost the same as the plaint allegations O.S.No.1014 of 1978. The same also raised as the plaint allegations in O.S.No.662 of 1980. In this suit, the defendants 3, the erstwhile owners of the suit property, remained ex parte and the pleas of defendant-Sachi-danandam Pillai are almost the same as the plaint allegations O.S.No.1014 of 1978. In the above circumstances, both the suits were taken up together the court below and a common judgment dated 26.8.1980 has been passed. The below has found that the said Ponnusamy alone was the cultivating tenant of the and not Rasu. It is also found that Ex.A-7 was executed voluntarily by the said Ponnusamy. Further the court below has also found that the execution of Ex.A-7 is not opposed policy. So holding, the court below has granted the decree for specific performance separate possession, against the defendants with costs. But it has negatived the mesne profits made in O.S.No.1014 of 1978. Thus O.S.No.1014 of 1978 has been Consequently O.S.No.662 of 1980 was dismissed with costs. Hence the present appeals the said Ponnusamy and Rasu. 3. Before me also the learned counsel for the appellants, Ponnusamy and Rasu, argued the same lines as it was done in the court below. However he could not very much argue two of the above said points namely that Rasu alone was the cultivating tenant that Ex.A-7 was not entered into voluntarily by Ponnusamy. The findings of the court regarding these two points can be in no way said to be erroneous. The learned counsel the appellants then proceeds to argue that Ex.A-7 is opposed to public policy, in Tamil Nadu Cultivating Tenants Protection Act, which gives protection against eviction cultivating tenants. The contention is that Ponnusamy cannot contract out of statute learned counsel points out that the preamble to the said Act says that the Act protection from eviction of cultivating tenants.” He also drew my attention to Sec.3(1) Act which runs as follows: “Subject to the next succeeding sub-sections, no cultivating tenant shall be evicted holding or any part thereof, by or at the instance of his landlord, whether in execution decree or order of a court or otherwise.” So, according to him, contrary to the abovesaid enactment, if the tenant executed the very execution itself is opposed to public policy. He also drew my attention decisions namely, Subbiah Gounder v. Rami Gounder, (1957)1 M.L.J. 18,MurlidharAgarwal v. State of U.P.,A.I.R. 1974 S.C. 1924: (1974)2 S.C.C. 472 , and Chandra v. VI Additional District Sessions Judge, Meerut, A.I.R. 1983 All. 116. decisions did not arise under Tamil Nadu Cultivating Tenants Protection Act. But they under the relevant Rent Control Acts. In these decisions, it was no doubt held eviction could be ordered from the relevant buildings in question merely on the ground the tenant therein had agreed to surrender his rights of tenancy therein. 4. But, this argument of the learned counsel for the appellants cannot be accepted. the abovesaid provisions of the Tamil Nadu Cultivating Tenants Protection Act abovesaid decisions would apply to the present case. These decisions arose out of filed for eviction of the tenants of respective buildings. The relevant enactments specifically say that eviction could be granted under the said respective enactments the grounds specified therein and the rent controller or the other relevant authority above said Rent Control Acts, must satisfy himself before granting eviction that any the grounds specified therein exists. So eviction cannot be granted merely because has agreed to vacate or surrender his tenancy rights. Those decisions cannot be applied the present case which does not arise on a petition for eviction under Tamil Nadu Cultivating Tenants Protection Act. The present O.S.No.1014 of 1978 is a suit for specific performance of Ex.A-7 and so those decisions cannot be applied present case. The term used in the above said preamble to the Tamil Nadu Cultivating Tenants Protection Act or Sec.3(1) therein, is “eviction” , but what is sought for in the case is not “eviction” . The present O.S.No.1014 of 1978 is a suit for specific performance of Ex.A-7 and so those decisions cannot be applied present case. The term used in the above said preamble to the Tamil Nadu Cultivating Tenants Protection Act or Sec.3(1) therein, is “eviction” , but what is sought for in the case is not “eviction” . This term “ eviction” has been also interpreted by a Division this Court in the decision reported in Kuppammal v. Vellingiri, 70 L. W. 11, wherein context of an application, under’ Sec.4 of the above said Act, for restoration of possession, sought for by the cultivating tenant against the landlord, their Lordships have observed follows: “ We consider that ” eviction “ as used in Sec.3(1) and Sec.4(2) is an eviction of this character and that in cases where the tenant surrenders possession voluntarily without compelled to do so by any act or conduct on the part of the landlord, there eviction.....It is sufficient for our purpose to say that there would be no eviction when tenant voluntarily and willingly surrenders possession of the land to the landlord. So the present case is concerned, the admitted facts and the finding of the Revenue Divisional Officer are that the surrender was for consideration and was a result of a bargain freely voluntarily entered into between parties. In the circumstances there was no eviction 1st respondent from the holding which he formerly held. In view of our construction of (1), that it contemplates restoration to possession only of cultivating tenants who were possession of their holdings on 1st December, 1953, but who ceased to be in possession the date of the commencement of the Act by reasons of an eviction as specified in several provisions, which we have already pointed out, it follows that the 1st respondent not entitled to an order for restoration to possession under the provisions of Sec.4. Applying the same meaning to the above word “eviction” I also find that no “eviction such has been sought for in O.S.No.1014 of 1978. 5. Further, there is also a direct decision applicable to the facts of the present case. Applying the same meaning to the above word “eviction” I also find that no “eviction such has been sought for in O.S.No.1014 of 1978. 5. Further, there is also a direct decision applicable to the facts of the present case. In Thangamani and another v. Natesan others,- (1990)2 M.L.J. 32 , Bellie, J., has held as follows: “True the defendants (appellants were cultivating tenants but it cannot be said that it open to them to surrender possession to the plaintiffs-landlords even if they (defendants) wanted to do so considering the benefits they would get by that. Contracting out or waiving the statutory rights......It is clear that the defen- dants are in possession under agreement and they are not in possession as cultivating tenants. For surrender of possession physical delivery is not always necessary, it can be by implication also. ” So in the present case also after executing Ex.A-7, Ponnusamy, the first defendant O.S.No.1014 of 1978 is no longer a cultivating tenant. So also the execution of Ex.A cannot be said to be against public policy. 6. But, the learned counsel for the appellants rightly contends that there cannot be specific performance against the second defendant Rasu since he did not execute Ex.A- court below has granted decree for specific performance even against the said Rasu. That not correct. The learned counsel for the appellants further argues that even possession decree cannot be given against Rasu. But, this contention is not correct because the below has held that only the first defendant Ponnusamy was the cultivating tenant and the said Rasu. That means, the latter has no right to remain in possession of the property and so possession decree could be given against Rasu the second defendant. 7. Then the learned counsel for the respondents in A.S.No.588 of 1981 argues that the below erred in having held that the plaintiff in O.S.No.1014 of 1978 is not entitled to profits. The court below has simply observed in para 25 of its judgment that the plaintiff not entitled to the mesne profits which is not contemplated under Ex.A-7. No further has been given for negativing mesne profits. Ex.A-7 cannot be expected to provide mesne profits, since, if possession is given pursuant to Ex.A-7 immediately thereafter, question of mesne profits would not arise at all. No further has been given for negativing mesne profits. Ex.A-7 cannot be expected to provide mesne profits, since, if possession is given pursuant to Ex.A-7 immediately thereafter, question of mesne profits would not arise at all. Certainly if the appellants have not possession pursuant to Ex.A-7, their possession after executing Ex.A-7 will be unlawful so the court below should have held that the plaintiff in O.S.No.1014 of 1978 is entitled future mesne profits i.e., from the date of the suit. But, the learned counsel for appellants argues that this relief cannot be given in this appeal A.S.No.588 of 1981 there is no cross objection by the respondents. In this Appeal No.588 of 1981, the learned counsel for the respondents submits that the respondents filed cross objection in 1982 itself, but, actually, no such cross objection is placed before me. The counsel for the appellant also submits that he has not received notice of such cross objection. However, the learned counsel for the respondents relying on O.41, Rule 33, C.P.C., that even without cross objection, the relief regarding mesne profits can be given in favour of the respondents in this Appeal No.588 of 1981, Rule 33 runs as follows: “The appellate court shall have power to pass any decree and make any order which ought have been passed or made and to pass or make such further or other decree or order case may require, and this power may be exercised by the Court notwithstanding that appeal is as to part only of the decree and may be exercised in favour of all or any respondents or parties, although such respondents or parties may not have filed any or objection (and may, where there have been decrees in cross-suits or where two or decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. Provided that the Appellate Court shall not make any order under Sec.35-A, in pursuance any objection on which the court from whose decree the appeal is preferred has omitted refused to make such order. “The learned counsel for the respondents brought to my notice Hashmatrai v. Tarachand, A.I.R. 1979 Bom.95,Ramasami Nadar v. Pathummal, (1990)2 L. W. 263, Koksingh v. Bai, A.I.R. 1976 S.C. 1634, in support of his contention. All these decisions indeed support his contentions. “The learned counsel for the respondents brought to my notice Hashmatrai v. Tarachand, A.I.R. 1979 Bom.95,Ramasami Nadar v. Pathummal, (1990)2 L. W. 263, Koksingh v. Bai, A.I.R. 1976 S.C. 1634, in support of his contention. All these decisions indeed support his contentions. To illustrate, in Ramasami Nadar v. Pathummal, (1990)2 L.W. 263 , plaintiff claimed a decree with reference to 65 cents. But, the trial court gave a decree with reference to 48 cents. The defendants preferred an appeal but, the appellate dismissed the appeal. However it gave a decree to the plaintiff, on the basis of O.41, 33, C.P.C., for the balance of 17 cents also even though no cross objection was filed plaintiff. 8. Therefore, I hold that the plaintiff is entitled to mesne profits. No doubt, the quantum the same has to be ascertained by separate enquiry in the trial Court. As and when the quantum is ascertained necessary adjustments should be made for the amounts paid by the defendants to the plaintiff while the appeal was pending. 9. Accordingly the judgment and decree of the court below in O.S.No.1014 of 1978 modified as follows: Decree for specific performance is granted only against the defendant Ponnusamy. However decree of possession is against both the defendants Ponnusamy and Rasu. It is also held that the first defendant Ponnusamy is liable mesne profits to the plaintiff from the date of the suit upto the date of delivery of possession. The plaintiff will also be entitled to costs against both the defendants. The appeal A.S.No.588 of 1981 is therefore dismissed with costs. Consequently A.S.No.446 of 1983 is also dismissed with costs. Appeals dismissed.