( 1 ) THIS appeal is by the appellant, who was 1st defendant in o. S. No. 20/1986 on the file of the Court of Civil Judge at Dharwad, challenging the judgment and decree passed therein by which the said suit brought by the 1st respondent, who was plaintiff therein, has been decreed in part holding her as owner of land in Block no. 111/1 measuring 4 acres 9 guntas of Haletegur Village and entitled to its possession, though dismissed the suit for other reliefs claimed and also for land in Block No. 111/2 covered by sale deed dated 24. 4. 1972, and also against the judgment and decree passed in R. A. No. 20/1990 on the file of the Court of II Addl. District Judge at Dharwad, since the judgment and decree passed by the Trial court came to be affirmed by the said Ist Appellate Court.

( 2 ) FOR the sake of convenience, the parties are referred hereafter as shown in the impugned judgment and decree of the trial Court, i. e, plaintiff and defendants.

( 3 ) THE brief facts, which gave rise to the present appeal, are: the plaintiff, who is the wife of 2nd defendant, claiming as the owner and possessor of the two suit lands on the basis of inheritance through her mother, brought suit for various reliefs with injunction, including the relief of declaration of ownership over suit lands and also with regard to two sale deeds executed by defendants No. 2 to 4 in favour of 1st defendant and, alternatively claimed possession of suit lands from 1st defendant with mesne profits, if found by Court not in possession of lands. The 1st defendant contested the said suit denying the entire case of plaintiff since, according to him, the plaintiff has no right or title to the suit lands, and her alleged inheritance is not correct and he is a bonafide purchaser for value without notice of plaintiffs right over the suit lands though, according to him, defendants No. 2 to 4 having right in the suit lands executed sale deeds for valid consideration and consequently, requested to dismiss the suit of plaintiff. It was his further case that from the date of sale, he is in possession and enjoyment of the suit lands and not plaintiff and consequently, the plaintiff is not entitled to the relief of injunction also. The defendants no. 3 and 4 adopted the written statements of 1st defendant. However, 2nd defendant has supported the case of plaintiff. The trial Court, on consideration of the evidence adduced by the parties and hearing argument, partly decreed the suit of the plaintiff with regard to land in Block No. 111/1 and ordered for possession of that land to the plaintiff from 1st defendant, but dismissed the suit in respect of other suit land in Block No. 111/2. The 1st defendant challenged the said judgment and decree by filing R. A. No. 20/1990 before the 1st Appellate Court, but he was unsuccessful before that Court. Hence, he is before this Court now.

( 4 ) AT the stage of admission, on 10. 10. 2001, this Court has framed the following substantial question of law in the present matter. Whether the plaintiff who herself has got mutation made in respect of the suit properties and stood as a mute witness when defendants 2 to 4 effected the two sale deeds in favour of the appellant/defendant No. 1 could seek declaration and avoid the sale deeds executed in favour of the appellant by other defendants with the consent of the plaintiff as provided under Section 41 of the T. P. Act.

( 5 ) HEARD the learned Counsel appearing for the parties and perused the records.

( 6 ) AT the outset, it may be noted that the plaintiff, who succeeded in part in her suit with regard to suit land block No. 111/1 only and failed to get any relief with regard to other suit land block No 111/2, has not challenged that part of the judgment and decree by which she was refused relief with regard to block No. 111/2 and as such, it is not necessary for this Court to go into that part of the evidence relating to said land block No. 111/2. #

( 7 ) IT is the case of 1st defendant t