ORDER :

1. Leave granted.

2. The legal representatives of defendant in a suit for recovery of possession and damages have preferred this appeal against the judgment and order dated 08.03.2016, as passed by the High Court of Judicature at Bombay, Bench at Nagpur in Second Appeal No. 275 of 2001.

3. The predecessor of the present respondents filed the suit for possession and damages (CS No. 189 of 1995) in the Court of Civil Judge (Senior Division), Akola against the predecessor of the present appellants, essentially with the claim that he (the plaintiff) had purchased the suit property from the defendant under a registered sale deed dated 01.10.1992 for a consideration of Rs. 27,500/-and the defendant had put the plaintiff in possession of the suit property. The plaintiff asserted that later on, the defendant put his lock over the property and thereafter inducted tenants therein; whereupon he filed a police complaint and then filed the present suit on 03.08.1995, seeking recovery of possession as also damages.

4. The defendant, while resisting the claim so made by the plaintiff, contended that he had never sold the property to the plaintiff; rather he had taken a loan of Rs. 27,500/-for which, a nominal sale deed was executed. The defendant also submitted that he had repaid an amount of Rs. 19,750/- by way of cash and cheque to the plaintiff and had also given his refrigerator worth Rs. 7,500/-.

5. After taking evidence and examining the material placed on record, the Trial Court found that the plaintiff had failed to establish the factum of his having been put in possession and that the municipal taxes, electricity bills etc. were also paid by the defendant, leading to the inference that the sale deed was not an outright sale but was executed only as security. The Trial Court also observed that the property was encumbered against the loan taken by the defendant from a society and same could not have been sold before being released from such encumbrance.

6. The Trial Court also noticed that no payment of consideration was made at the time of registration of the sale deed and no other evidence was adduced by the plaintiff as to how did he make payment of the alleged sale consideration. Though the evidence in regard to the fact of defendant having repaid a sum of Rs. 20,000/- to the plaintiff through cheques was found to be unconvincing but, in view of other findings, the Trial Court proceeded to dismiss the suit.

7. The First Appellate Court, however, did not agree with the findings and conclusion of the Trial Court on the material issues involved in the matter. The First Appellate Court disbelieved the story of making repayment by the defendant by way of cheques, particularly after noticing that though the defendant stated that the cheques Exhibits 44 to 47 were returned by the plaintiff whenever the payment was made but, there was no such endorsement on the said cheques. The Appellate Court observed that the defendant probably applied a trick by embodying the name of the plaintiff on all those cheques. The First Appellate Court also referred to the fact that admittedly, the sale deed was executed and got registered before the Sub-Registrar and found that the defendant had failed to establish it to be a loan transaction. Accordingly, the First Appellate Court allowed the appeal and decreed the suit.

8. Being aggrieved by the decree so passed by the First Appellate Court, the defendant approached the High Court in second appeal. The second appeal so preferred by the defendant (substituted by his legal representatives) was admitted by the High Court on the following substantial questions of law : -

“(1) Is the judgment of appellate court erroneous being based on erroneous formulation of points for determination since the question relating to nature of transaction was not framed?

(2) Is the judgment of appellate court sustainable in the background that findings of fact as recorded by trial court are set aside without holding that those are