JUDGMENT

1. The appellant, who is the legal representative of the plaintiff in O.S.No.551/2000, and the appellant in R.A.No.152/2008 is before this Court seeking for the following reliefs:

WHEREFORE, it is respectfully prayed that the Hon'ble court may kindly be pleased to pass the Judgment and decree against the respondents:

1) To set aside the Judgment and decree in R.A.No.152/2008 on the file of the 1st Addl. Senior Civil Judge and A.C.J,M., Tumkur, dated: 12.12.2014;

2) To set aside the Judgment and decree in O.S.No.551/2000 on the file of the III Addl. Civil Judge (Junior Division) and J.M.F.C., Tumkur, dated 17.09.2007;

3) To allow the appeal with costs, and such other reliefs as the Hon'ble Court may deem fit to grant under these circumstances of the case, in the interest of Justice and equity.

2. The father of the appellant had filed a suit in O.S.No.551/2000 seeking for the following reliefs:

a) To declare the title and possession of the suit schedule property directing the defendant to hand over the same in favour of the plaintiff.

b) For holding the sale - deed dated 20.01.1971 in the nature of mortgage (Krya Bhogya) as null and void.

c) To award costs and such other reliefs in this suit in favour of plaintiff.

3. The contention of the plaintiff was that though their family members had executed a sale deed in favour of defendant No.1 dated 20.01.1971, it was not in fact a sale deed, but it was a mortgage. The plaintiff claim to have redeemed the mortgage in terms of Ex.P5 and that the possession had been handed over to their family. The plaintiff was not allowed into the property by defendant No.2, his brother and in that background the aforesaid reliefs are sought for.

4. Defendant No.2 entered appearance and filed a written statement and contending that the family members, had executed a sale deed on 20.01.1971, pursuant to which defendant No.1 became an absolute owner in possession of the suit schedule property. Defendant No.2 had entered into an agreement of sale with defendant No.1 dated 06.07.1989 as per Ex.D1 and in pursuance of the said document, he was put in possession of the property and as such it is contended that the plaintiff cannot claim ownership of the property nor can the plaintiff dispossess defendant No.2, who is in possession of the property.

5. Defendant No.1 though served chose to remain ex-parte and the suit proceeded for trial and Judgment. The Trial Court dismissed the suit by holding that there is no document of title in favour of the plaintiff and as such once declaration of title could not be granted, the question of possession being handed over to the plaintiff, could not be granted.

6. The plaintiff took up the said judgment on appeal in R.A.No.152/2008 which came to be dismissed on 12.12.2014 by the I Additional Senior Civil Judge and ACJM., Tumkur, again the said Court, came to a conclusion that the sale deed having been admitted to have been executed on 20.01.1971 in favour of the 1st defendant, who was the owner of the property. The plaintiff himself having admitted that possession is not with the plaintiff, but with defendant No.2 without there being any document of title in favour of the plaintiff and or the family, the question of the plaintiff being declared to be the owner of the property would not arise. In this regard, the evidence which had been led by the plaintiff had also been re-appreciated by the First Appellate Court. The concurrent dismissal by the Trial Court and First Appellate Court is what is under challenge before this Court.

7. The above appeal had been admitted on 06.06.2024 for deciding the following question of law.

" Whether the subsequent conduct of the parties could be taken into consideration to determine the nature of the transaction which had been entered into earlier by way of a registered document".

8. Sri.T.Govindaraja, learned counsel appearing for the appellants would submit that the sale deed dated 20.01.1971 is in the nature of mortgage, is not a sale, as s