( 1. ) THIS appeal has been preferred by the defendant, who have lost in both the Courts. This Court vide order dated 31-7-1996 while admitting the appeal had formulated the following substantial question of law :-

"1. Whether the first Appellate Court was justified in granting a decree for whole of the property when the trial Court has granted a decree for 1/3rd and the plaintiff did not file any cross-objection against rejection of their claim? 2. Whether on the facts and in the circumstances of the case the appellants are entitled to maintain the possession of the property under the provisions of section 53-A of the Transfer of Property Act?"

( 2. ) FACTS giving rise to filing of the appeal briefly stated are that the plaintiffs filed a suit for confirmation of possession and in the alternative, seeking a decree for possession on the ground that one Prahlad was the owner of the land admeasuring 64.25 acres. On death of Prahlad, the suit lands devolved on his three sons namely Yashwant Rao, Madhav Rao and Sudarshan Rao. Yashwant Rao and Madhav Rao relinquished their share in the suit lands in favour of Sudarshan Rao i.e. father of the plaintiffs. Sudarshan Rao died in the year 1962. After his death, the suit lands devolved on the plaintiffs. However, during the minority of the plaintiffs, defendants got their names mutated in the revenue records. The defendants on the basis of an agreement dated 7-7-1961 allegedly executed by late Sudarshan Rao, disclosed themselves to be the owner of the suit lands and tried to take forcible possession of the suit lands in the year 1968. It was averred in the plaint that late Sudarshan Rao had neither entered into an agreement for sale with the defendants nor had placed them in possession. If such an agreement is in existence, the same is forged. It was further pointed out that the market value of the land was Rs1 Lac whereas, the sale consideration in the agreement is shown as Rs.13,000/- only. The defendants filed the written statement in which inter alia it was pointed out that Sudarshan Rao i.e. plaintiffs' father had one-third share in the suit lands. It was denied that Yashwant and Madhav Rao had relinquished their share in the suit property. It was further pleaded that Sudarshan Rao had entered into an agreement dated 7-7-1961 with the defendants for a consideration of Rs.13,000/- and had received the entire sale consideration. However, on account of his death in the year 1962, the sale deed could not be executed. It was also pleaded that defendants are in possession of the suit lands on the basis of the agreement which has been executed in their favour by late Sudarshan Rao.

( 3. ) THE trial Court initially, vide judgment and decree dated 25-11-1975 decreed the suit filed by the plaintiff and directed the defendants to handover the joint possession of 1/3rd share in the suit lands. In an appeal preferred by the defendants, the matter was remanded. The trial Court thereafter vide judgment and decree dated 28-3-1990 inter alia held that plaintiff is the sole owner of the suit lands. It was further held that defendants have not been able to prove that plaintiffs' father had entered into an agreement for sale dated 7-7-1961 and handed over the possession of suit lands to the defendants. Accordingly, it was held that plaintiff is entitled to possession of the suit lands. Being aggrieved by the aforesaid decree, the defendants preferred an appeal. The lower Appellate Court vide judgment and decree dated23-3-1996 on the basis of Ex.D/7, D/8 and D/9 held that plaintiff's father namely Sudarshan Rao had entered into an agreement for sale with the defendants. It was further held that Sudarshan Rao died in the year 1962 leaving behind his son namely the plaintiff and four daughters, therefore, the plaintiff is not the sole owner of the suit lands. It was further held that plaintiff is entitled to obtain possession of the suit lands.

( 4. ) LEARNED counsel for the appellants submitted th