M.R. Shah, J. - (1.) Feeling aggrieved and dissatisfied with the impugned Judgment and Order passed by the High Court of Karnataka at Bengaluru dated 25.07.2007 passed in Regular Second Appeal No.1033 of 2001, by which, in exercise of powers under Section 100 of the CPC, the High Court has allowed the said appeal preferred by the respondent herein-original plaintiff and has quashed and set aside the Judgment and Decree passed by both the Courts below dismissing the suit, and consequently decreeing the suit, original defendants have preferred the present appeal.
(2.) The facts leading to the present appeal in nutshell are as under : That the respondent herein-original plaintiff (hereinafter referred to as the 'original plaintiff') instituted the suit in the Court of Munsiff and JMFC at Gubbi (learned Civil Judge, Junior Division, Gubbi) being Original Suit No.141 of 1984 praying for the Judgment and Decree in his favour to the effect that he be declared as the owner of the suit schedule property and also for permanent injunction restraining the appellants herein-original defendants (hereinafter referred to as the 'original defendants') from interfering with his peaceful possession and enjoyment of the suit schedule property. It was the case on behalf of the original plaintiff that he has become an owner of the suit property having purchased the same under a registered Sale Deed and therefore the defendants have no right whatsoever to interfere with his peaceful possession and enjoyment of the suit schedule property. The suit was resisted by the defendants by filing the written statement. It was the case on behalf of the defendants that husband of defendant no.1 and father of defendant nos. 2 and 3 i.e. A. N. Krishnappa (deceased), purchased the suit property on 12.12.1948 under a registered Sale Deed for a consideration of Rs.400/-. That the suit property was blended into the joint family properties by him. That thereafter the partition between the sons of deceased Nanjappa was recorded on 23.04.1971 and the suit property fell into the share of the deceased A. N. Krishnappa. It was also the case on behalf of the defendants that they are enjoying the possession of the suit property. It was also the case on behalf of the defendants that no Sale Deed has been executed by the defendants in favour of the plaintiff and the alleged Sale Deed is fabricated by the plaintiff. 2.1 That the learned Trial Court framed the following issues: "(i) Does the plaintiff prove his title to the suit schedule property? (ii) Whether the plaintiff proves his lawful possession of the suit schedule property on the date of suit? (iii) Does the plaintiff prove the interference by the defendants to his possession of the suit property?" 2.2 That both the parties led evidence, both, oral as well as documentary. That after considering the submissions made on behalf of the rival parties and on appreciation of evidence, learned Trial Court held that there was a partition between family on 23.4.1971 and for that the learned Trial Court observed and held that Exhibit D4(Partition Deed dated 23.04.1971) is admissible in evidence. The learned Trial Court also observed and held that the suit property was available at the time of partition. The learned Trial Court also observed and held that Exhibit P1 (the Sale Deed relied upon by the original plaintiff) was only a nominal Sale Deed and not an out and out sale deed since Exhibit P1 was executed as security for loan and never intended to sell the suit property. The learned Trial Court also observed and held that the suit property was purchased by late Krishnappa for a sum of Rs.400/- in 1948 and thereafter it is stated to have been sold at Rs.200/- after 16 years i.e. in 1964, which is highly improbable. The learned Trial Court also gave a specific finding that there was a concealment of material facts in the suit, which shows mala fide intention of the plaintiff. The learned Trial Court also held that plaintiff, in collusion with PW2, has got executed a sham document in his favour. By holding so and recording above findings, the learned Trial Court dismissed the suit. 2.3 The First Appellate Court dismissed the appeal preferred by the original plaintiff and confirmed the Judgment and Decree passed by the learned Trial Court dismissing the suit. While dismissing the appeal, the learned First Appellate Court observed that Exhibit D4 cannot be said to be a Partition Deed and can be said to be only a list of properties partitioned and does not create or extinguish any right in the immovable property and therefore not a compulsorily registrable document and therefore Exhibit D4 is admissible in evidence.
(3.) Feeling aggrieved and dissatisfied with the Judgment and Decree passed by the learned Trial Court confirmed by the First Appellate Court, the original plaintiff filed a Regular Second Appeal No.1033 of 2001 before the High Court. The High Court framed only one substantial question of law which reads as under : "Whether the appellant is the owner and in possession of the suit land as he purchased it in the year 1973, that is, subsequent to the date 23.4.1971 when Ex.D1 - Partition deed - Palupatti is alleged to have come into existence?" 3.1 That by the impugned Judgment and Order, the High Court has allowed the said appeal and has interfered with the findings of facts recorded by both the Courts below and consequently has decreed the suit by holding that Exhibit D4 required registration and therefore the same was inadmissible in evidence. The High Court further observed and held that both the Courts below are not justified in holding that document - Exhibit P1 was only a nominal sale deed and that the same was not acted upon. 3.2 Feeling aggrieved and dissatisfied with the impugned Judgment and Order passed by the High Court, original defendants have preferred the present appeal.;