The present appeal by the defendants feeling

aggrieved by the judgment and decree dated 03.08.2011

in RA No.254/2010 on the file of District Judge, Adhoc and

Fast Track at Basavakalyan reversing the judgment and

decree dated 09.10.2006 in OS No.66/1997 on the file of

Civil Judge (Jr.Dn.) and JMFC at Basavakalyan.

2.

The following facts are not in dispute.

i)

The respondent – plaintiff filed suit for declaration

that the sale deed dated 26.07.1968 is null and

void and not binding on the plaintiff and for

possession of the suit house bearing No.16-161.

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ii)

That the father of the plaintiff was in need of

money in the year 1968 and had taken a loan of

Rs.1,600/- from defendant No.1 and a mortgage

agreement

dated

17.04.1968

was

executed

between

the

plaintiff,

his

father

and

the

defendant No.1.

iii) The possession of the property was to be re-

delivered to the plaintiff and his father as per the

mortgage agreement dated 17.04.1968, once the

father of the plaintiff repays the amount of

Rs.1,600/- to the defendant No.1.

iv) That the alleged sale deed dated 26.07.1968 is

said to have been executed by the plaintiff and

his father in favour of defendant No.1.

v)

O.S.No.200/1989 was filed by the defendant No.1

for specific performance of contract in respect of

an agreement of sale dated 31.05.1984 in

respect of the residential house with open space

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bearing Panchayat No.6-161 measuring East-

West 12 yards, North-South measuring 33 yards

and for declaration that the sale deed dated

05.05.1986 regarding some portion of open

space of the suit house measuring East-West 37

feet x 6 feet and North-South 28 feet x 8 feet is

null and void.

vi) That O.S.No.37/1997 filed by one Abdul Saleem,

the nephew of the defendant No.1 and in the said

suit it is stated for the first time that a registered

sale deed dated 26.07.1968 has been executed

by the plaintiff and his father in favour of

defendant No.1 and his elder brother by name

Pasha Miyan and in light of the partition between

the brothers, the portion of the property has

fallen to the share of Abdul Saleem.

vii) O.S.No.200/1989

sought

for

specific

performance of contract and declaration was

dismissed for default.

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viii) O.S.No.37/1997 also came to be dismissed for

default.

ix) Cause of action as mentioned in the plaint arose

when the defendants tried to take permission

from the village Panchayat for construction over

the suit property in the year 1997.

3.

Heard Sri Shivakumar Kalloor, learned counsel

for the appellants and Sri Sachin M. Mahajan, learned

counsel for the respondent on the substantial questions of

law framed by this court on 23.02.2012, which reads as

under:

"1. Whether

the

First

Appellate

court

was

justified in reversing the Judgment of the

Trial Court without considering Ex.P.1 and

relevant revenue records made pursuant

thereto?

2. Whether the First Appellate Court was justified

in entertaining the claim of plaintiff of

plaintiff in a time barred suit?

3. What order?"

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4.

Learned counsel for the appellants would urge

the following grounds:

i.

That the initial burden of proving that the

registered sale deed dated 26.07.1968 is a

forged document was on the plaintiff and the

plaintiff having not discharged the said burden,

the first appellate court was not justified in

holding that the burden is upon the defendants

to show that the plaintiff and his father had

executed a regular sale deed in favour of the

defendant No.1 and decreeing the suit of the

plaintiff for declaration and possession.

ii.

That granting of relief of possession in respect

of an un-registered mortgage agreement is

barred by time, since plaintiff has not bought

the suit within limitation as prescribed under

law.

iii.

In the absence of any evidence adduced by the

plaintiff to show the non-existence of the fact in

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relation to the forged document about execution

of the sale deed dated 26.07.1968, the first

appellate court was not justified in decreeing