K.S.HEGDE, J.

(1) DEFENDANT No. 2 in the suit from which this appeal arises is the appellant before this court, The plaintiffs sued for the possession of the suit properties on "the basis of their title. Their case was that defendant No. 1 Dagaduba, who was the owner of the suit properties sold the same to the plaintiffs on 12/01/1952; but some of the defendants had trespassed on those properties and hence they were constrained to file the suit. The suit was filed on 14/02/1953.

(2) THE first defendant in his written statement pleaded that the suit properties originally belonged to his family; there was a division in the family between himself and his brother, the second defendant; in that division the suit properties fell to his share; thereafter he became the absolute owner of the same and he mortgaged the same to the plaintiffs. But later he changed that version and admitted that he sold the suit properties to the plaintiffs. The second defendant admitted that the suit properties originally belonged to his family. He also admitted that there was a partition in his family but his case was that as a result of that partition, the suit properties fell to his share and that he was in possession of the same. He denied that his brother had any right to alienate the suit properties or in fact he had alienated the same.

(3) THE two primary questions that arose for decision before the trial court were (1) whether in the partition in the family of defendants 1 and 2, the suit properties fell to the share of the first defendant or the second defendant and (2) whether the first defendant had sold the suit properties to the plaintiffs. The trial court decided both these questions in favour of the plaintiffs and decreed the plaintiffs suit. In appeal the learned District Judge held that the suit properties belonged to the joint family of defendants 1 and 2 and that it had never been partitioned. He further came to the conclusion that the sale put forward by the plaintiffs has not been established. The High court reversed the decree of the first appellate court and restored that of the trial court. Thereafter this appeal has been brought after obtaining special leave.

(4) AS seen earlier both the first defendant as well as the second defendant had pleaded that there was a partition in the family. Therefore the only question that fell for decision was whether the suit properties fell to the share of the first defendant or the second defendant. There was no basis in the pleadings for the finding of the learned District Judge that the suit properties were the joint family properties of the first and the second defendants. This was entirely anew case made out by the District Judge. The pleadings in the case did not permit the learned District Judge to come to such a conclusion. Hence in our opinion the High court was justified in reversing that finding of the first appellate court. An attempt was made before us to justify the finding of the first appellate court that the suit properties were joint family properties of defendants 1 and 2 by referring to the evidence in the case. We are not satisfied that there is any evidence to support that case. Further a case not pleaded cannot be made out by evidence.

(5) NOW coming to the question whether the suit properties fell to the share of the first defendant or the second defendant, it was pleaded in the plaint that the second defendant had specifically admitted in a document executed by him on 12/01/1952 that the suit properties were of the exclusive ownership of his brother and that he had no right on the same. In his written statement, the second defendant had pleaded that the deed in question is a forgery and that he had not executed it. The trial court came to the conclusion that the said deed was executed by the second defendant. The first appellate court also did not accept the contention of the second defendant that he did not execute that deed. On the othe