JUDGMENT
V.G. Sabhahit, J.
1. This appeal by the defendant is directed against the judgment and decree passed by the Court of Civil Judge (Sr. Dn.) & JMFC, Bhadravathi in RA. No. 15/2000 dated 22.8.2003 allowing the appeal and reversing the judgment and decree passed by the Court of I Addl. Civil Judge (Jr. Dn.) & JMFC, Bhadravathi, in O.S. No. 122/94 dated 15.12.99 and decreeing the suit of the plaintiff.
2. The essential facts of the case leading upto this appeal with reference to the rank of the parties before the Trial Court are as follows:
The plaintiff filed the suit for permanent injunction against the defendant averring that plaintiff is in peaceful possession and enjoyment of the suit schedule property-site measuring 20′ X 35′ in Sy. No. 222/2 and the same has been allotted to the plaintiff and plaintiff has constructed a house on this site for his residence. He has paid upset price of Rs,. 50/- and revenue records are in the name of the plaintiffs and defendants who have no right, title or interest are trying to interfere with the possession of the suit schedule property and wherefore the suit for bare injunction.
3. The suit was resisted by the defendant. The defendant admitted title of the plaintiff and further contended that the plaintiff has entered into an agreement of sale dated 14.12.1989 agreeing to sell the schedule property in favour of the defendant for a consideration of Rs. 16,000/- in favour of Smt. Yashodamma who is the mother of the defendant and has received Rs. 14,000/- as an earnest money and executed agreement of sale, balance amount was to be paid at the time of registration of the sale deed. Smt. Yashodamma the mother of the defendant was put in possession of the property. Smt. Yashodamma has leased portion of the property to one Jainabi. Smt. Yashodamma died on 31.10.1991. And now the defendant is in possession and enjoyment of the schedule property and defendant is in possession of the property in part performance of the contract under Section 53-A of the Transfer of Property Act and wherefore the suit for injunction is liable to be dismissed.
4. The Trial Court framed appropriate issues. On behalf of the plaintiff, plaintiff was examined as PW. 1 and he also examined PW.2 and got marked Exs. PI to P4. On behalf of the defendant, defendant was examined as DW. 1 and he also examined DWs. 2 to 4 got marked Exs. D1 to D4, The Trial Court after considering the contention of the parties and he material on record held that, though the plaintiff has proved title to the schedule property, the defendant has proved that the property was agreed to be sold to Smt. Yashodamma- the mother of the defendant as per the agreement of sale Exs.D3 and D4 and Smt. Yashodamma was put in possession of the property pursuant to the agreement dated 16.1.1990 and after her death the defendant has continued to be in possession of the property in part performance of the contract and wherefore the suit of the plaintiff is liable to be dismissed and accordingly, dismissed the suit by judgment dated 15.12.1999. Being aggrieved by the same, the plaintiff preferred RA.No. 15/2000 and the First Appellate Court by judgment dated 22.8.2003 held that Ex. D4 was required to be registered in view of the provisions of the Karnataka Stamp Act, 1957 and since the same has not been registered it is inadmissible in evidence and having regard to the contents of the photo-Ex. P3 and evidence of PWs-1 and 2 and other material on record the plaintiff has proved possession of the schedule property and accordingly reversed the judgment and decree passed by the Trial Court and decreed the suit for permanent injuction. Being aggrieved by the said judgment and decree, the defendant has preferred this appeal which was admitted on 8.7.2005 for consideration of the following substantial question of law:
Whether the finding of the First Appellate Court reversing the decree passed by the trial court and decreeing the suit of the plaintiff is contrary to law and material on record and for non-consideration of the reasons assigned by the Trial Court in dismissing the suit?
5. I have heard the learned Counsel appearing for the parties on the above said substantial question of law.
6. The Learned Counsel appearing for the appellant submitted that the finding of the First Appellate Court holding that Ex. D4 was required to be registered and since it is not registered it is not admissible in evidence is clearly perverse and arbitrary and the said document has teen wrongly excluded from evidence and other material on record did not prove that plaintiff was in possession of the schedule property and the First Appellate Court was not justified in holding that merely because the defendant is staying in another house he is not in possession of the schedule property as it is the case of the defendants that the property had been leased.
7. I have considered the contention of the counsel appearing for the parties with reference to the material on record and I answer the substantial question of law in the affirmative for the following:
REASONS.
8. It is clear from the perusal of the reasons assigned by the First Appellate Court by arriving at its finding that the First Appellate Court has held that Ex. D4 is not adimissible in evidence as under the said agreement possession is alleged to have been handed over and the same is not registered and in view of the provisions of Section 34 r/w. Article 5(e) it is not registered and wherefore not admissible in evidence and the First Appellate Court has proceeded on the basis of the photo-Ex. P3 and the evidence of PWs. 1 and 2 excluding the evidence Ex.D4 and has come to the conclusion that the defendant has failed to prove that he was put in possession of the property under the agreement of sale in part performance of the contract. The reasoning of the first appellate court that Ex. D4 was required to be registered and wherefore not admissible in evidence is clearly erroneous and arbitrary as it is clear from the provisions of Article 5(e) that the said Article has been introduced into schedule to the Act by Amendment Act 6 of 1999 which has come into effect from 1.4.1999. Admittedly Ex. D4 is dated 16.4.1990 and wherefore, question of registration of the said agreement of sale under Article 5(e) does not arise at all and the First Appellate Court was not at all justified in excluing the evidence as inadmissible in evidence. It is also clear from the perusal of the material on record that the reasoning of the First Appellate Court that since the plaintiff is found near schedule house as per photograph Ex.P3 is testimony that he is in possession of the property, his belief is also clearly erroneous. Further, mere fact that the defendant is residing at Gandinagar and not in the schedule property would also not itself prove possession of the plaintiff in respect of the schedule property as it is the case of the defendant that the schedule property has been leased and wherefore, it is clear that the first appellate court was not at all justified in excluding Ex.D4 as inadmissible in evidence. The first appellate court being the final court on the question of fact and law ought to have taken into consideration all the material on record including Ex. D4 which was admissible in evidence and has been erroneously held to be inadmissible and the contents of the said document Ex.D4 is also to be considered by the first appellate court to find out as to whether the defendant has proved that he was put in possession of the property pursuant to agreement of sale Ex.D4 as held by the Trial Court and wherefore, it is clear that the finding of the first appellate excluding admissible evidence and assigning reasons which are not sustainable in law is perverse and in view of the fact that first appellate court has not considered admissible evidence since it is a final Court on the question of fact and law it is but appropriate that the matter should be remitted to the First Appellate Court to consider and dispose of the appeal afresh after taking into consideration Ex.D4 also which is admissible in evidence and accordingly, I answer the substantial question of law in the affirmative and pass the following order:
The appeal is allowed. The judgment and decree passed by the First Appellate Court i.e. the Court of civil Judge (Sr.Dn.) and JMFC, Bhadravathi, in RA. No. 15/2000 dated 22.8.2003 is set aside and RA. 15/2000 is remitted to the Court of Civil Judge (Sr.Dn.) Bhadravathi, with a direction to dispose of the appeal afresh in the light of the observations made in the body of this judgment. However, there shall be no order as to costs in this appeal.