Point of Law: It is clear that in order to contend that transaction was a mortgage and not out and out sale, it requires compliance with provisions of law set forth hereinabove and in absence of same, such contention cannot be countenanced.

JUDGMENT :

Present Regular Second Appeal is filed by the appellant/plaintiff against the Judgment and Decree dated 18.04.2007 passed by the Principal District Judge, Bijapur (hereinafter referred to as 'the First Appellate Court') in R.A.No.57/2005, by which the First Appellate Court while dismissing the appeal confirmed the Judgment and Decree dated 10.02.2005 passed by the Civil Judge, Senior Division at Muddebihal (hereinafter referred to as 'the Trial Court') by which suit of the appellant/plaintiff in O.S.No.219/2001 (old No.186/1996) for relief of declaration of title and injunction was dismissed.

2. Parties are referred to by their original rank before the Trial Court.

3. The suit properties are the immovable properties bearing :

(i) Survey No.133/1 measuring 2 acres 32 guntas;

(ii) Survey No.133/2 measuring 4 acres;

(iii) Survey No.134 measuring 6 acres 33 guntas;

all situated in Hullur village, Muddebihal taluk.

4. Brief facts of the case of the plaintiff are that; defendant is the uncle of the plaintiff, as the mother of the plaintiff is elder sister of the wife of defendant. That the suit properties originally belonged to the defendant. That the plaintiff purchased Item No.1 and 3 of the suit properties for a valuable consideration of Rs.38,000/-under a registered deed of sale dated 24.10.1988. That Item No.2 of the suit properties had been earlier sold by the defendant to one Veerasangayya Kuchbal, S/o. Mahadevaiah Kuchbal of Hullur village and that the plaintiff purchased the same from the said Veerasangayya Kuchbal under a registered deed of sale dated 25.10.1988 for a sale consideration of Rs.15,500/-. That the plaintiff had entrusted the suit properties to the defendant to look after and cultivate the same as the plaintiff was residing in Domnal village. That in the year 1994, defendant in collusion with the revenue officials got his name entered in the revenue records in respect of the suit properties vide Diary No.3723 and denied his title. Being aggrieved by the same, plaintiff filed the suit seeking declaration of his ownership and for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the plaintiff over the suit properties and also for possession, if the court finds him not to be in possession of the suit properties.

5. Defendant in his written statement admitted that the suit properties earlier belonged to him but denied that the ownership and possession of the plaintiff over the same. It is specifically contended by the defendant that he had borrowed an amount of Rs.40,000/-from Veerasangayya Kuchbal of Hullur village by executing a deed of sale in respect of Item No.2 of the suit properties as a security against the said loan. That the plaintiff and his father had represented that they would repay the loan of the defendant on his behalf to Veerasangayya in lieu of he executing a nominal deed of sale in respect of suit properties in their favour with an assurance of reconveying the same on he repaying their dues. Accordingly, the defendant executed deed of sale dated 24.10.1988 in favour of plaintiff in respect of item Nos.1 and 2 of suit properties and the plaintiff paid Rs.40,000/-to Veerasangayya Kuchbal on behalf of the defendant and got the Item No.2 of the suit schedule property conveyed in his name from Veerasangayya Kuchbal under deed of sale dated 25.10.1988. That the possession of suit properties was not delivered and plaintiff has never been in possession of the suit properties. That in the year 1993 the defendant had repaid the loan amount to the plaintiff. Since reconveyance of the property would involve huge expenses, in order to save the same the plaintiff released the suit properties in favour of the defendant on the basis of a Wardi to the Village Accountant, Hullur and pursuant to which, Diary No.3723 was effected in the name of the defendant in respect of the suit properties. That all these transactions were made in good faith and in c