Judgment 1. The plaintiff in O.S.No.634 of 1980 on the file of the District Munsif Court, Tindivanam, who had succeeded before the trial court and lost before the first appellate court in the appellant herein. 2. At the time of admission the following two substantial questions of law were framed by this Court: 1. Whether the appellant would be bound by the execution proceedings in S.C.No.176 of 1965, District Munsif Court, Tindivanam. 2. Whether the lower appellate court was right in its conclusion that the respondents had perfected title by adverse possession. 3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. For convenience, the parties to this appeal will be referred as arrayed before the trial court. 4. The plaintiff instituted the suit seeking for the relief of declaration of his title, for recovery of possession and for other consequential reliefs. The plaintiff though came forward with a specific case that the suit properties originally belonged to Annamalai who had usufructuarily mortgaged the property under Ex.A-2 dated 27.6.1962 to secure repayment of Rs.400 in favour of the first defendant, that the usufructuary mortgagee namely the first defendant was in possession and in enjoyment of the suit property as a mortgagee, that the plaintiff on 13.8.1964 under Ex.A-1 purchased the equity of redemption from the said Annamalai, that as the first defendant had been in possession for more than 10 years, the mortgage stands wiped out in terms of Tamil Nadu Act 40 of 1979, that the plaintiff demanded possession of the suit property which the first defendant had declined to hand over, that the first defendant also contended that he had purchased the equity of redemption in court auction sale under Ex.B-6, dated 5.9.1966, that the auction sale is not binding on the plaintiff, that the first defendant had sold the suit property to the second defendant on 16.8.1979 under Ex.B-19, that the sale by the first defendant in favour of second defendant is not binding and that the plaintiff is entitled to the relief of declaration and recovery of possession. 5. The second defendant had remained ex parte. 5. The second defendant had remained ex parte. The first defendant filed a written statement admitting that the suit property and other items were usufructuarily mortgaged to him by Annamalai on 27.6.1962, that apart from the amount advanced on the mortgage, the said Annamalai had borrowed amount under promissory note, that as the said Annamalai failed to repay the amount due under the promissory note the first defendant instituted a Small Causes Suit No.176 of 1965 on the file of the court, that the mortgaged properties were attached and equity of redemption was sold in court auction under Ex.B-6, dated 5.9.1966, that the first defendant being the successful auction purchaser was issued a sale certificate and under Ex.B-7, that he had taken delivery of the suit properties on 18.1.1967, that the first defendant had been remitting the kist under Exs.B-8 to B-17 commencing from the year 1971 onwards, that patta was also issued in favour of the first defendant as seen from Ex.B-18, that on 16.8.1979 the first defendant had conveyed the property to the second defendant under Ex.B-19, that the first defendant/mortgagee who had purchased the equity of redemption that become the absolute owner as there is a merger, that since then, the first defendant had been in possession as absolute owner, that the first defendant had prescribed title by adverse possession, that the sale deed in favour of the plaintiff is a sham and nominal transaction and it is not binding on the first defendant, that neither the original mortgagee nor the plaintiff is entitled to invoke the benefits of Tamil Nadu Act 40 of 1979 and that the plaintiff is not entitled to any relief. 6. The plaintiff marked Exs.A-1 to A-4 and examined himself as P.W.1 while the first defendant has marked Exs.B-1 to B-20 and examined one Palani Chettiar as D.W.1 and Ayyanar as D.W.2. 7. It is to be pointed out that the plaintiff had not filed any reply statement to the written statement filed by the first defendant. 6. The plaintiff marked Exs.A-1 to A-4 and examined himself as P.W.1 while the first defendant has marked Exs.B-1 to B-20 and examined one Palani Chettiar as D.W.1 and Ayyanar as D.W.2. 7. It is to be pointed out that the plaintiff had not filed any reply statement to the written statement filed by the first defendant. The trial court found that Ex.A-1 sale deed executed by Annamalai in favour of the plaintiff is true and valid, that the suit for declaration of title is maintainable, that the plaintiff is entitled for recovery of possession besides mesne profits, that the first defendant has no right to convey the suit property under Ex.B-19 to the second defendant and that the plaintiff is still the owner of the property. The auction sale in favour of the first defendant is not binding on Annamalai. In the light of the said findings, the trial court granted a decree as prayed for. 8. The second defendant preferred A.S.No.6 of 1983 on the file of the Subordinate Judge of Tindivanam. The first appellate court allowed the appeal, set aside the judgment and decree of the trial court and being aggrieved, the present second appeal has been preferred by the plaintiff. 9. According to the first appellate court, Ex.A-5 usufructuary mortgage is not in dispute. The plaintiff had established his purchase under Ex.A-1 on 13.8.1964 from Annamalai Kounder wherein the plaintiff had been directed to discharge the usufructuary mortgage. It is the claim of the plaintiff that the mortgage stands wiped out in terms of Act 40 of 1979. It is also found that the equity of redemption was sold in public auction pursuant to the decree obtained by the first defendant in the Small Causes Suit and Ex.B-7 sale certificate was issued in favour of the first defendant on 18.1.1967. The second defendant contended that as the equity of redemption has been brought to sale and was purchased by the first defendant, neither the plaintiff nor his vendor could assign the equity of redemption as the mortgage himself has acquired the equity of redemption in terms of the court auction sale. It is true that the plaintiff was not a party to Ex.A-6 or Ex.A-7. It is true that the plaintiff was not a party to Ex.A-6 or Ex.A-7. The plaintiff case being that Exs.B-6 and B-7 are not binding on him as the property had been sold behind his back without impleading him and therefore the auction sale and delivery proceedings are not binding on him. 10. It is to be pointed out that the Small Causes Suit filed by the first defendant against Annamalai Kounder is of the year 1965 and being a suit on promissory note, there was no necessity for the plaintiff in that said suit to implead the plaintiff herein who is the purchaser under Ex.A-1. It is also to be pointed out that the equity of redemption was attached nd it was brought for sale on 5.9.1966 under E.P.No.2004 of 1965 in S.C.No.176 of 1965. As seen from the sale certificate the public auction was conducted on 3.8.1966 and the sale was confirmed and the sale certificate was issued on 5.9.1966. As seen from Ex.B-7 in terms of the sale certificate possession was handed over on 18.1.1967 through court. It is being pointed out that the plaintiff had not filed a claim petition before the executing court based upon Ex.A-1. Under Ex.A-1 the plaintiff had purchased the equity of redemption. But the plaintiff had instituted the suit only during the year 1980 seeking for declaration of title and had not even asked for redemption of the mortgage. 11. It was the contention of the plaintiff that without notice to him the auction sale has been conducted and the first defendant had purchased the equity of redemption and therefore the said purchase is not binding on him. In this respect, the learned counsel for the plaintiff relied upon the decision of this Court reported in Ramaswamy Kounder and others v. Ramaswamy Kounder and others Ramaswamy Kounder and others v. Ramaswamy Kounder and others Ramaswamy Kounder and others v. Ramaswamy Kounder and others , 87 L.W. 454 and contended that failure to implead the subsequent purchaser of the equity of redemption will vitiate the auction proceedings and therefore the claim of the plaintiff that the purchase of equity of redemption by the first defendant is invalid and not binding on the plaintiff. The court below had chosen to distinguish the said pronouncement of this Court on the reasoning that the proceedings in the said case is for redemption as against the present proceedings, where in execution of a small causes decree the equity of redemption was sold in court auction and therefore according to the learned first appellate court the said decision has not application to the facts of the present case. The first appellate court had taken the view that the purchase of the equity of redemption by the mortgagee himself results in the merger and therefore the possession of the first defendant since 1968 onwards is adverse to the interest of the plaintiff as well as his vendor. 12. According to the learned Subordinate Judge, though the auction sale may be invalid and not binding on the plaintiff, the possession of the first defendant being adverse to the interest of the plaintiff as well as his vendor, the plaintiff had lost his title to the suit property by the first defendant acquiring title by adverse possession. In this respect reliance was placed on the decision of the Apex Court reported in Soni Lal Jeha v. Soni Gulab Chand , A.I.R. 1967 S.C. 978 In fact following the said pronouncement in Soni Lal Jeha deceased v. Soni Gulab Chand Soni Lal Jeha deceased v. Soni Gulab Chand Soni Lal Jeha deceased v. Soni Gulab Chand , A.I.R. 1967 S.C. 978 the first appellate court held that the first defendant had prescribed title to the suit property as his possession even under invalid purchase of equity of redemption is not binding on the plaintiff. On that basis, the first appellate court took the view that the plaintiff had lost his title and the plaintiff is not entitled to seek the relief of declaration. The first appellate court further held that the plaintiff had not sought for redemption of the usufructuary by mortgage in terms of O.34 of the Code of Civil Procedure and therefore the suit is also not maintainable. 13. The learned counsel for the respondents relied upon the decision of this Court reported in Sambandam v. Janakiammal , A.I.R. 1996 Mad. The first appellate court further held that the plaintiff had not sought for redemption of the usufructuary by mortgage in terms of O.34 of the Code of Civil Procedure and therefore the suit is also not maintainable. 13. The learned counsel for the respondents relied upon the decision of this Court reported in Sambandam v. Janakiammal , A.I.R. 1996 Mad. 339 and contended that the plaintiff who had claimed that he had his vendor are entitled to the benefits of Tamil Nadu Act 40 of 1979 have to prove the same and the burden is on the plaintiff to prove it. In the absence of any evidence to show that the plaintiff and his vendor are entitled to the benefits of the Act, the learned counsel for the respondents/ defendants contended, that the plaintiff cannot assume that he is entitled to the benefits of the Debt Relief Act and he cannot assume that the suit mortgage stands wiped out. In this respect the decision in Sambandam v. Janakiammal , A.I.R. 1996 Mad. 339 was pressed into service. There is no quarrel over the proposition that burden is prima facie on the debtor claims that a debt has been discharged or a mortgage has been wiped out under the provisions of the Tamil Nadu Act 40 of 1979. In the present case as rightly contended by the counsel for the plaintiff/appellant, the trial court had not rendered a finding that the plaintiff as well as his vendor are debtors and consequently, the mortgage stands wiped out in terms of Tamil Nadu Act 40 of 1979. Admittedly, no such finding has been given as obviously the plaintiffs assertion that the suit mortgage kept stands wiped out has not been controverted. It may be that for more than the stipulated period, and therefore, the plaintiff is entitled to the benefits of the Act and consequently the mortgage stands wiped out. 14. In law, as contended by the learned counsel for the defendants the possession of mortgagee becomes adverse when the mortgagee has purchased the equity of redemption in the court auction sale. It is true that the possession of the mortgagee at its inception was not adverse to that of the mortgagor. 14. In law, as contended by the learned counsel for the defendants the possession of mortgagee becomes adverse when the mortgagee has purchased the equity of redemption in the court auction sale. It is true that the possession of the mortgagee at its inception was not adverse to that of the mortgagor. But on the mortgagee purchasing in the equity of redemption in the court auction sale, either being void or voidable, the character of possession in the hands of the mortgagee changes and his possession in the light of his auction purchase of equity of redemption changes and it cannot be said that he continued to be in possession as a mortgagee despite his purchase of the equity of redemption even assuming that the said purchase is void or voidable. Therefore, it is contended that the possession of the first defendant since the date of his purchase of equity of redemption in the court auction sale and taking delivery is definitely adverse to that of the mortgagor. In this respect the decision of the Apex Court reported in Lalji Jetha v. Kalidas , A.I.R. 1967 S.C. 979 is being relied upon. The Apex Court held thus: “It is true that as mortgagees in possession Kanji and Lalji derived their title to possession through the mortgagors and by virtue of their rights under the said mortgage. They were entitled, therefore, to continue to be in possession under the said mortgage and so long as it subsisted. By merely asserting rights of ownership in the said shops they could not overt their possession as mortgagees and unilaterally alter their lawful possession as mortgagees into possession hostile to the mortgagors. But it is a well settled proposition that a mortgagor can sell the mortgaged property to his mortgagee and thus put the mortgagees estates to an end and thereafter all the right, title and interest in the property would vest in the mortgage. Such a sale would be valid and binding as between them and henceforth the character of possession as a mortgagee would be converted into possession as an absolute owner. Such a sale would be valid and binding as between them and henceforth the character of possession as a mortgagee would be converted into possession as an absolute owner. Even if such a sale is held to be voidable and not binding on a subsequent purchaser the character of possession based on assertion of absolute ownership by the mortgagee does not alter, and if that possession continues throughout the statutory period it ripens into a title to the property.” 15. In the present case, even accepting the contention of the plaintiff that the purchase of equity of redemption by the first defendant is invalid or is voidable, the character of possession of the suit property in the hands of the first defendant changes and he can very well putforward the plea of adverse possession as has been held by their Lordships of the Apex Court, The decision in Padma Vithoba v. Mohammed Multhani , A.I.R. 1963 S.C. 70 was also relied upon by the learned counsel for the defendants. In the present pronouncement the Apex Court has occasion to consider the nature of possession of mortgagee and if when his possession becomes adverse to that of mortgagor. The relevant passage reads thus: “It is not disputed that when a person gets into possession of properties as mortgagee, he cannot by any unilateral act or declaration of his prescribe for a title by adverse possession against the mortgagor, because in law his possession is that of the mortgagor. But what is contended is that if the mortgagor and mortgagee subsequently enter into a transaction under which the mortgagee is to held the properties thereafter not as a mortgagee but as owner that would be sufficient to start adverse possession against the mortgagor if the transaction is for any reason inoperative under the law. This contention in our opinion, is well founded. Though there was at one time a body of judicial opinion that when a person enters into possession as a mortgaged he cannot under any circumstances acquire a title by prescription against the owner, the law is now fairly well settled that he can do so where these is a change in the character of his possession under on agreement with the owner, vide: Karnam Kandasami v. Chinnabba Karnam Kandasami v. Chinnabba Karnam Kandasami v. Chinnabba , A.I.R. 1921 Mad. 82.” 16. 82.” 16. In the present case, the plaintiff had purchased the equity of redemption on 13.8.1964 and he had instituted the suit only in the year 1980, The first defendant usufructuary mortgagee had in execution of the money decree of a third party has purchased the equity of redemption as early as 5.9.1966 and had recorded delivery on 18.1.1967. Even if the character of possession of the first defendant changes on and from 18.1.1967, the present suit having been filed on 26th June, 1980, the plea of adverse possession cannot be sustained on the evidence let in by the defendant. It cannot be held on the available evidence the first defendant had prescribed title by adverse possession as the plaintiff had filed the present suit before the expiry of limitation period. Therefore, the possession of the first defendant or for that matter the subsequent purchase of the second defendant though adverse had not resulted in prescription of title by adverse possession. The contrary view of the first appellate court in this respect cannot be sustained. 17. It has been rightly contended that the auction sale of equity of redemption in favour of the first defendant mortgagee is invalid in that the plaintiff had not been impleaded as a party to the court auction sale and the proceedings went on behind his back without impleading the plaintiff who had purchased the equity of redemption even before institution of the small causes suit which was decreed. The small causes suit is of the year 1965, whereas the plaintiff has purchased the equity of redemption under Ex.A-1, dated 13.8.1964. While bringing the property to court auction even in respect of equity of redemption, the decree holder has to produce the encumbrance for a period of 13 years and the sale of equity of redemption definitely should find a place in the encumbrance. It is not as if Ex.A-1 is an unregistered document. The auction sale of the equity of redemption proceeded behind the back of the plaintiff who had purchased the equity of redemption even before the institution of the small causes suit. It is true that the plaintiff need not be impleaded as a party to the Small Causes suit, but for the sale of the equity of redemption the plaintiff who is the earlier purchaser of the equity of redemption under Ex.A-1 should have been necessarily impleaded as a party. It is true that the plaintiff need not be impleaded as a party to the Small Causes suit, but for the sale of the equity of redemption the plaintiff who is the earlier purchaser of the equity of redemption under Ex.A-1 should have been necessarily impleaded as a party. It makes no difference whether it is a proceedings under O.34, Civil Procedure Code of execution proceedings arising out of money decree. The existing encumbrance should have been indicated as the person who has a right to redeem could have been impleaded as a party to the execution. The execution sale of equity of redemption has proceeded on the assumption that the mortgagor is still owning the equity of redemption while in fact he ceased to hold the equity of redemption ex parte and this is not binding on the plaintiff who had purchased the equity of redemption much prior to the passing of a small causes decree. 18. The trial court had taken the view that the suit is maintainable as the mortgage stands wiped out statutorily in terms of Tamil Nadu Act 40 of 1979. It is being contended that no finding has been given as to whether the debtor in the present case in entitled to the benefits of Tamil Nadu Act 40 of 1979. The first appellate court had not gone into this aspect of the matter as to whether the plaintiff is entitled to the benefits of Tamil Nadu Act 40 of 1979 and as to whether the mortgage stands wiped out. Hence, the contention raised by the counsel for the defendants requires consideration. 19. Admittedly, the original mortgagor is an agriculturist and being usufructuary mortgage, the mortgage stands wiped out of redeemed in terms of Sec.9 of Act 40 of 1979 as the defendant/mortgagee had been in possession for more than 10 years. Being a statutory provision the mortgage gets redeemed and in law it is sufficient if a suit for recovery of possession is filed. This is a legal position as the statutory redemption takes place and in the circumstances the present suit for declaration of tile and recovery of possession is maintainable and it is not as if the suit is not maintainable. The conclusion of the first appellate court that the suit claim is barred cannot be sustained in law. This is a legal position as the statutory redemption takes place and in the circumstances the present suit for declaration of tile and recovery of possession is maintainable and it is not as if the suit is not maintainable. The conclusion of the first appellate court that the suit claim is barred cannot be sustained in law. The second defendant did not file a written statement and remained ex parte. The second defendant in other words did not resist the suit claim. It was the first defendant who alone had filed the written statement and resisted the suit claim. The second defendant who claim to be the interested person did not even prefer the first appeal but it is only the plaintiff and the first defendant who had preferred the first appeal. 20. Even according to the first defendant the suit property has been alienated in favour of the second defendant as seen from Ex.B-19, dated 16.8.1979 before the institution of the suit. The second defendant had not chosen to challenge the decree as the present owner. This is to be taken note of. The first defendant had no present interest on the date of the suit and ceased to have any interest after the sale in favour of second defendant. 21. In the circumstances, the judgment and decree of the first appellate court is liable to be set aside as the first appellate to court had applied the wrong provision of law and that of the trial court has to be restored. 22. The questions of law framed in this second appeal has to be answered against the respondents. As regards the first question of law this Court holds that the execution proceedings is not binding on the plaintiff in the suit. This Court has already found that the defendants have not prescribed title by address possession and the second question of law also has to be answered in favour of the appellant. 23. In the result, the second appeal is allowed, the judgment and decree of the first appellate court is set aside and that of the trial court is restored. No costs.