NEELAGANGAWA v. NINGANA GOWDA — 1995 DIGILAW 452 (KAR)

H. N. TILHARI, J. ( 1 ) THESE two appeals i. e. second appeal No. 535 of 1985 which arises out of suit No. 67 of 1977 filed by the plaintiff-appellant and second appeal No. 12 of 1986 which arises out of suit No. 20 of 1977 (filed by defendant 1 relate to one and the same property in dispute namely house t. m. c. No. 1579 situate in village ron district, dharwad ). These two appeals involve common question of law and fact so these appeals are being disposed of by common judgment. ( 2 ) THESE two appeal No. R. s. a. No. 535 of 1985 and r. s. a. no. 12 of 1986 have been filed by the plaintiff-appellant in suit No. 67 of 1977 who is defendant in suit No. 20 of 1977 challenging the judgment and decree dated 4th of january, 1985 by Sri N. S. Sangolli, civil judge, gadag in civil appeal nos. 21 of 1980 and 22 of 1980 which the first appeals had been filed by the ningana gowda neelappa gowda karigoudar who has been the plaintiff in suit No. 20 of 1977 and defendant in suit No. 67 of 1977 whereby the learned lower appellate court allowed the two regular appeals and set aside the common judgment and decree dated 18-2-1980 delivered by the munsiff, ron decreeing the claim of the plaintiff-appellant in o. s. No. 67 of 1977 and dismissing the claim of the present respondent in his o. s. No. 20 of 1977. The lower appellate court thus after having set aside the judgment and decree of the trial court dated 18-2-1980 passed in O. S. No. 67 of 1977 and o. s. No. 20 of 1977, allowed the claim of the present defendant-respondent in suit No. 20 of 1977 and rejected and dismissed the claim of the present plaintiff-appellant in suit No. 67 of 1977. It may be mentioned that as per narration of the facts, the case of the plaintiff pleaded in suit No. 67 of 1977 was the defence case in suit No. 20 of 1977 while the case of the plaintiff in suit No. 20 of 1977 has been the defence case in r. s. No. 67 of 1977. It may be mentioned that as per narration of the facts, the case of the plaintiff pleaded in suit No. 67 of 1977 was the defence case in suit No. 20 of 1977 while the case of the plaintiff in suit No. 20 of 1977 has been the defence case in r. s. No. 67 of 1977. The present plaintiff-appellant neelagangawa filed suit No. 67 of 1977 for decree for declaration and for permanent injunction restraining the defendant in suit No. 67 of 1977 namely the present respondent who was plaintiff in suit No. 20 of 1977 from interfering with the possession of the present plaintiff-appellant over the property in suit. In suit No. 67 of 1977, the plaintiff claimed that the plaintiff-appellant had been the owner of the property in suit by virtue of the sale deed with respect to the said property having been executed in her favour by one susheelabai mugali for a sum of Rs. 2,000/ -. It is contended that by sale deed dated 23-11-1970 which is a registered document wherein she became the owner. The present plaintiff-appellant namely neelagangawa claims that she, on the basis of the above mentioned sale deed, has always been in possession and enjoyment of the suit property as owner thereof. Since the date of transaction dated 23-11-1970. It was further alleged by plaintiff-appellant that defendant who is her brother has been residing separately permanently at jigalur in ron taluk that he had no concern with the suit property. ( 3 ) IN the plaint of suit No. 67 of 1977, it has been asserted that on 4-11-1974 the plaintiff-appellant, for a sum of Rs. 2,000/- executed a nominal and hallow registered sale deed in favour of her mother mallawa but she i. e. plaintiff remained in actual possession of the suit property all along and the sale deed dated 4-11-1974 according to the plaintiff was executed for security for loans advanced by her mother and it was never intended to be acted upon by either herself or by her mother. The plaintiff further alleged that till 18-7-1976 the properties subject-matter in dispute always remained in the name of the plaintiff-appellant in town municipal records. Plaintiffs' further case has been that, as the sale deed dated 4-11-1974 was a nominal one, her mother mallawa did not get any ownership of the property and the deed was not acted upon. The plaintiff further alleged that till 18-7-1976 the properties subject-matter in dispute always remained in the name of the plaintiff-appellant in town municipal records. Plaintiffs' further case has been that, as the sale deed dated 4-11-1974 was a nominal one, her mother mallawa did not get any ownership of the property and the deed was not acted upon. The plaintiff further alleged that defendant after 17-8-1976 got a fraudulent gift deed dated 11-10-1976 executed in his favour in respect of suit property from the mother of the plaintiff as well as the defendant. The plaintiffs case has been that defendant never came in possession of the suit property on the basis of the gift deed. Plaintiff has further alleged that plaintiff had repaid the loan which had been advanced by her mother Smt. Mallawa during her lifetime. It has also been alleged in the plaint that defendant-respondent got name recorded in the municipal council records. Plaintiff alleges that defendant-respondent ninganagowda filed a suit for permanent injunction bearing No. O. s. No. 20 of 1977 and he obtained interim injunction Order when he was actually not in possession of the property against the plaintiff on the basis of that injunction. So the need for filing r. a. No. 67 of 1977 did arise and the plaintiff so filed for declaration that plaintiff-appellant is owner and that the suit sale deed dated 4-11-1974 executed by her in favour of her mother mallavva was sham and nominal transaction was not intended to be acted upon and plaintiff-appellant prayed as well for decree for permanent injunction. ( 4 ) IN the plaint, it was also averred that the gift deed dated11-10-1976 has been got made and executed by exercising fraud etc. , by defendant on Smt. Mallawa and the gift deed was not an intelligent ACT of mallawa. ( 5 ) THE defendant-respondent contested the suit and denied the claim of the plaintiff in suit No. 67 of 1977. It has been the case of the present defendant that the plaintiff of suit No. 67 of 1977 has not been owner in possession of the suit property. The defendant further alleged and claimed himself to be a owner in actual possession of the suit property on the basis of the gift deed alleged to have been executed in his favour by his mother Smt. Mallawa. The defendant further alleged and claimed himself to be a owner in actual possession of the suit property on the basis of the gift deed alleged to have been executed in his favour by his mother Smt. Mallawa. The defendant asserted that Smt. Mallawa acquired title to the suit property under the sale deed dated 4-11-1974 executed by the plaintiff after having received the due consideration from Smt. Mallawa and the transaction was entered into by a registered sale deed dated 4-11-1974 the defendant asserted that the sale was an out and out sale and was not a nominal or bogus as plaintiff had tried to assert. The defendant further asserted that mallawa after the registered sale deed dated 4-11-1974 was the actual owner in possession of the suit property as full owner and she was entitled to execute the gift deed dated 11-10-1976 in favour of defendant-respondent who was plaintiff in suit No. 20 of 1977. The defendant claimed to be in actual possession of the suit property as owner on the basis of the gift deed. He denied allegation that a fraud has been played etc. Defendant-respondent stated to have filed suit No. 20 of 1977 and alleged to have obtained temporary injunction Order, the defendant prayed for dismissal of the suit No. 67 of 1977. ( 6 ) AS mentioned earlier that defendants of suit No. 67 of 1977had filed suit No. 20 of 1977 for perpetual injunction. The suit was filed claiming title of the suit property on the basis of the registered gift deed dated 11-10-1976 alleged to have been executed in favour of the respondent by Smt. Mallawa. According to the present respondent i. e. plaintiff of o. s. No. 20 of 1977 Smt. Mallawa had become the owner of the suit property under registered sale deed dated 4-11-1974 and had obtained possession of the suit property and she gifted and delivered the possession of the suit property to the respondent namely plaintiff of suit No. 20 of 1977. The present respondent, during the pendency of the suit amended the plaint and alleged that the present appellant dispossessed the respondent from the suit property so he also sought decree for possession in addition to decree for permanent injunction. The present respondent, during the pendency of the suit amended the plaint and alleged that the present appellant dispossessed the respondent from the suit property so he also sought decree for possession in addition to decree for permanent injunction. Without repeating, it may be mentioned that the appellant who was plaintiff in suit No. 67 of 1977 filed written statement in suit No. 20 of 1977 as defendant and raised some pleas that had been raised in suit No. 67 of 1977 by her as the plaintiff and that as in both suits the parties were same, the properties in dispute was the same, both suits were tried jointly and common evidence was recorded. In both suits, by the common judgment delivered in two suits, the trial court decreed the suit of the present plaintiff-appellant namely suit No. 67 of 1977 and declared the plaintiff of o. s. No. 67 of 1977 to be the owner of the suit property. It also declared that the sale deed dated 4-11-1974 which was executed by the plaintiff neelgangavva of o. s. No. 67 of 1977 in favour of her mother mallawa was a sham and nominal transaction not to be acted upon. It also held that the sale deed, as such, dated 4-11-1974 did not pass on any title to the mother and as such the gift deed executed by mallavva in favour of ninganagouda was illegal document and void and not operative, and that the present defendant-respondent was liable to be restrained by prohibitory injunction Order from causing obstruction to the peaceful possession and enjoyment of the suit property by her sister i. e. present plaintiff-appellant. The trial court on account of the above findings dismissed the suit of the present defendant-respondent namely o. s. No. 20 of 1977 and held that plaintiff of that suit No. 20 of 1977 i. e. the present defendant-respondent was not the owner in possession of the property in dispute as the gift deed did not communicate or pass on any title to the present defendant-respondent i. e. plaintiff of suit No. 20 of 1977 and that suit No. 67 of 1977 was decreed. ( 7 ) HAVING felt aggrieved from the judgment and decree of the trial court, the defendant-respondent who was plaintiff in o. s. No. 20 of 1977 as well, filed two regular civil appeal nos. 21 and 22 of 1980. ( 7 ) HAVING felt aggrieved from the judgment and decree of the trial court, the defendant-respondent who was plaintiff in o. s. No. 20 of 1977 as well, filed two regular civil appeal nos. 21 and 22 of 1980. The lower appellate court after having heard the counsel for the parties by its judgment and decree dated 4-1-1985 allowed both the appeals filed by the present respondent namely ninganagouda and set aside the common judgment and decree passed in both the suit nos. 67 of 1977 and 20 of 1977, and thus the lower appellate court dismissed the present plaintiffs suit No. 67 of 1977 and decreed the defendant-respondent's suit No. 20 of 1977 for injunction and possession. The lower appellate court held that the present plaintiff-appellant failed to establish that the sale deed executed by the plaintiff-appellant in favour of her mother mallawa dated 4-11-1974 was a nominal or benami transaction and that she had also failed to prove that it was executed as the security for the loan alleged to have been advanced. The lower appellate court further held that the defendants evidence/plea in suit No. 67 of 1977 i. e, of the plaintiff of suit No. 20 of 1977 was reliable and that it has been conclusively been proved that ex. P-6 the registered sale deed dated 4-11-1974 was an out and out sale and it cannot be held to be a bogus or nominal or void transaction. It also held that it cannot be taken to be security for any loan and by this document, the title passed on to Smt. Mallawa and Smt. Mallawa it has been proved was the owner in possession of the suit property. The appellate court further held that the evidence produced by the defendant, which is more consistent and reliable and acceptable, proves that Smt. Mallawa became the owner of the property in dispute on the basis of the registered sale deed dated 4-11-1974 and further held that Smt. Mallawa did execute the gift deed in favour of defendant-appellant with full consciousness. The due execution of the gift deed dated 11-10-1976 has also been established. The appellate court further held that the defendant i. e. the present respondent namely the plaintiff in suit No. 20 of 1977 has established to be in possession of the suit property and the owner on the basis of the gift deed. The due execution of the gift deed dated 11-10-1976 has also been established. The appellate court further held that the defendant i. e. the present respondent namely the plaintiff in suit No. 20 of 1977 has established to be in possession of the suit property and the owner on the basis of the gift deed. With these findings, the lower appellate court allowed the two appeals filed by the present defendant-respondent. The lower appellate court issued direction to the defendant in suit No. 20 of 1977 permanently restraining him from interfering with the peaceful possession and enjoyment of the property by the plaintiff in o. s. No. 20 of 1977 and defendant of o. s. No. 67 of 1977. ( 8 ) FEELING aggrieved from the judgment and decree of the lower appellate court the plaintiff namely Smt. Neelagangawa in suit No. 67 of 1977 and the defendant in suit no, 20 of 1977 has filed the two present appeals. I have heard Smt. Asha, holding brief for Sri I. G. Gacchinamath, learned counsel for the appellant and ms. K. Manjula, holding brief for Sri A. S. Menasinakai, learned counsel for the respondent. ( 9 ) ON behalf of the appellant, it has been contended that the lower appellate court has erred in law in setting aside the trial court's decree and in holding that the respondent in the present appeal has acquired title to the property in dispute by virtue of gift deed dated 11-10-1976 executed by Smt. Mallavva in favour of the respondent. The learned counsel submitted before me that apart from the fact that the gift deed has been vitiated by fraud and other things, and even if otherwise for a moment the gift deed was inoperative, ineffective and void and thereunder no title did pass on to the respondent as Smt. Mallawa did not get any title to the suit property by virtue of the sale deed dated 4-11-1974 vide ex. P-6 on record. Learned counsel for the appellant submitted that, sale deed was never intended to be acted upon as has been held by the trial court and that the lower appellate court while passing the Order allowing the appeal and accepting the pleas of the respondent acted without any specific rhyme and reason has illegally reversed the finding of the trial court. Learned counsel for the appellant submitted that, sale deed was never intended to be acted upon as has been held by the trial court and that the lower appellate court while passing the Order allowing the appeal and accepting the pleas of the respondent acted without any specific rhyme and reason has illegally reversed the finding of the trial court. Smt. Asha, learned counsel for the appellant further submitted that really the sale deed was sham document and it was not intended to be acted upon. At the most, the said sale deed was a security for the loan advanced and there was agreement to reconvey the property whereunder the respondent had to reconvey the property to the present appellant. Smt. Asha further submitted that when the trial court had recorded the finding after due consideration of the material on record and the evidence on record lead by the present appellant and relied on the same, there was no justification for the lower appellate court to have upset the finding recorded by the trial court and she submitted that it is one of the principles of law that the finding of the trial court should not be interfered with on mere appreciation of the evidence. Smt. Asha in support of her contention relied on a decision rendered by the Hon'ble Supreme Court in the case of Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh and others. She also made reference to the decision of the Hon'ble Supreme Court in the case of Uttar Pradesh Co-Operative Federation Limited v. Sunder Bros. , Delhi. The learned counsel for the appellant further submitted that in view of the proviso to sections 91 and 92 of evidence ACT oral evidence was admissible and could be considered to determine the question whether there was any agreement to sale that was intended by the parties. She made reference to the decision of the Hon'ble Supreme Court in the case of Smt. Gangabai v. Smt. Chhabubai. ( 10 ) THE contentions made on behalf of the appellant have been hotly contested by ms. Manjula, brief holder for the respondent's counsel. The learned counsel for the respondent submitted that this case has been concluded on a pure and simple finding that and it does not call for any interference. ( 10 ) THE contentions made on behalf of the appellant have been hotly contested by ms. Manjula, brief holder for the respondent's counsel. The learned counsel for the respondent submitted that this case has been concluded on a pure and simple finding that and it does not call for any interference. She submitted that it is open to the appellate court to record any different finding from the trial court on appreciation of evidence. How the evidence should be appreciated is a matter that relates to the scope of the appreciation of the evidence and it is within the jurisdiction of the courts of fact to consider the evidence and to record the findings, and if lower appellate court records a finding reversing the trial court's finding it cannot be said that it is a jurisdictional error or legal error. Ms. Manjula further submitted that the transaction dated 4-11-1974 per se is out and out sale and it does not contain any such thing as agreement to sale contained therein. Ms. Manjula further submitted, once this registered sale deed has been executed the nature of the document has only to be considered from the contents of the document and expressions used therein, namely terms of the document have to be considered to determine its nature and no external evidence is admissible to vary the terms thereof. She further submitted that if the case of the appellant would have been that the deed of transaction of sale dated 4-11-1974 is not the document intended to be executed and the nature of the document agreed and intended to be executed was different from the present one and so invalid or void and such a issue is pressed then other external evidence might have been relevant. But here the plaintiff is no doubt stated in the plaint and in evidence that the plaintiff executed the sale deed so there is no question of fraud being played in respect of nature of the document with open eyes and understanding. She submitted fairly there is no question of fraud being played. Ms. Manjula submitted that in the circumstances of case the effect of the deed is to be looked in the light of the context of the deed and law applicable. She submitted that the sale deed was executed and registered with full knowledge and understanding that the sale deed was being executed. Ms. Manjula submitted that in the circumstances of case the effect of the deed is to be looked in the light of the context of the deed and law applicable. She submitted that the sale deed was executed and registered with full knowledge and understanding that the sale deed was being executed. The sale deed immediately after the registration became operative to convey the title from transferor to transferee and that Smt. Mallavva became the owner of the property when once she so became owner of the property in dispute, she was fully competent to execute the deed of gift in favour of the defendant-respondent. She further submitted that once this fact was found established as above Smt. Mallawa became the owner of said property under registered sale deed dated 4-11-1974, Smt. Mallawa as such was entitled to execute the gift deed dated 11-10-1976 in favour of the present respondents to pass on title to the respondent so the lower appellate court rightly granted the decree as claimed in suit No. 20 of 1977 and present plaintiff-appellant did not have any title to the suit property on the date of the suit, the court below has rightly set aside the trial court's decree and allowed the present respondent's both the appeals. It has been submitted by the respondent that the appeal is as such concluded on pure and simple finding of the appellate court. ( 11 ) I have applied my mind to the respective contentions of the learned counsels for the parties and to the record of the case. The learned counsel for the appellant has been very kindful enough to translate some important document (sale deed) which is in kannada into english so as to enable me to understand the contents of the deed. Before I proceed to deal with other arguments, I find it proper to deal with the last argument of the counsel for the appellant first. ( 12 ) AS regards the jurisdiction of the first appellate court,section 96 of c. p. c, read with Section 107 clearly indicates that the appellate court has got same powers and is required to perform same duties as may be or as have been conferred and imposed on the court of original jurisdiction with respect to the suits instituted therein. It has also got power subject to limitation prescribed under the various orders of the code to determine the case finally, to remand a case for trial afresh, to frame issues and refer them for trial as well as to take additional evidence or to require the such evidence to be taken. Section 96 of the Code of Civil Procedure is also very clear. A comparative reading of Section 96 and sub-section (4) of Section 96 per se will reveal distinction with respect to the jurisdiction of the first appellate court in matters of appeals i. e. first appeals from decrees passed on the original side by the civil court and the appeals that lie under sub-section (4) of Section 96 from the decree in suit cognizable by the small causes court when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees or is less. In the case of latter i. e. appeals from suits of the nature cognizable by small causes court when the amount or value of the suit does not exceed rupees three thousand, appeals lies on the only question of law and not of fact it means that, in the first appeals under Section 96 (4), the appellate court is not entitled to reverse a finding of fact recorded by the trial court on mere appreciation of the evidence or on the basis of question of reliability or unreliability of evidence, nor can it reverse the finding simply on the question of the quantum of satisfactory evidence. The scope of Section 96 (4) is almost akin to the jurisdiction of this court under Section 100, C. P. C. and the second appeals lie on the question of law. But in cases covered by Section 96 (1), there is no such rider and read with Section 107 and sub-section (2), the jurisdiction of the first appellate court in the matters of first appeal is almost same and similar as that of the original court and it can re-appreciate the evidence and record its finding even after reversing the trial courts finding. The case of sarju pershad, supra, only indicates a Rule of practice as observed by the Hon'ble Supreme Court in paragraph 6 of the judgment relied by the learned counsel for the appellant. The case of sarju pershad, supra, only indicates a Rule of practice as observed by the Hon'ble Supreme Court in paragraph 6 of the judgment relied by the learned counsel for the appellant. In the case namely of sarju pershad, their lordships have observed "that question for their consideration was one of a fact, the decision of which depends upon the appreciation of oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage that the trial court had in having the witnesses before him and of observing the manner in which they deposed in the court. It certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse the finding of the fact arrived at by the trial judge. The Rule is and it is nothing more than a Rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial judge's notice or there is sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial judge on a question of fact. A perusal of the above observations of their lordships of the Hon'ble Supreme Court clearly reveal that, the appellate court in the matter of appeal under Section 96 is fully competent to reverse the finding of the trial court on the basis of its appreciation of the evidence and the Rule as a matter of fact is that the first appellate court has full jurisdiction to re-appreciate the evidence or reverse the trial court's findings. The question of appreciation and misappreciation of evidence is always the question of fact and it does not come under the realm of substantial question of law under Section 100. ( 13 ) OTHER case relied upon by the learned counsel for the appellant namely the case of uttar pradesh co-operative federation ltd. , supra, is not the case on the point and is not a case to be applicable as their lordships have held that the trial court has been vested with certain discretionary powers. ( 13 ) OTHER case relied upon by the learned counsel for the appellant namely the case of uttar pradesh co-operative federation ltd. , supra, is not the case on the point and is not a case to be applicable as their lordships have held that the trial court has been vested with certain discretionary powers. Then, unless it appears that the trial court in exercising the discretionary powers has acted unreasonably or capriciously or has ignored relevant facts, it would not be open to the appellate court to interfere with the trial court's exercise of discretion particularly when the discretion has been exercised and appear to be exercised judiciously. The present case is not a case of exercise of discretionary power. ( 14 ) THAT as regards the second submission of the learned counsel for the appellant that the external evidence could be looked into to determine the point whether the deed to be intended to be acted upon. In my opinion, when the deed of transfer has been executed and it is admitted by the party itself, that, as in the present case by the appellant, that the appellant had executed the sale deed in question on 4-11-1974 and it is not the case of the appellant that really the document intended to be and agreed to be executed was some other document than the document in question and where it is not the case that any fraud was played by vendee or vendor in getting the sale deed executed on 4-11-1974 there is no question of any oral evidence being permitted to be considered to vary the terms of the deed which has been recorded in writing. The question of intendment etc. , in such a case is immaterial. What is relevant is the nature of the document and what is its effect, it has to be examined on the basis of the terms and conditions of the document and the law applicable. When I so observe I find support from the decision of their lordships of the Hon'ble Supreme Court. The Hon'ble Supreme Court has been pleased to lay down in the case of Chunchun Jha v. Ebadat Ah and another and in paragraph 6, their lordships have observed as under:" (6) the first is that the intention of the parties is the determining factor: see 'balkishen Das v. Legge. The Hon'ble Supreme Court has been pleased to lay down in the case of Chunchun Jha v. Ebadat Ah and another and in paragraph 6, their lordships have observed as under:" (6) the first is that the intention of the parties is the determining factor: see 'balkishen Das v. Legge. But there is nothing special about that in this class of cases and here, as in every other case, where a document has to be construed, the intention must be gathered, in the first place, from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended". ( 15 ) IN the case of Smt. Gangabai, supra, relied by the learned counsel for the appellant their lordships of the Supreme Court in their clear terms laid down, it is clear to us that bar imposed under sub-section (1) of Section 92 applies only when a party seeks to rely upon the document embodying the terms of transaction. In that event, law declares that the nature and intent of transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document, for the purpose of contradicting or modifying its terms. Their lordships have distinguished the cases where parties agree to terms of the transaction from the case where a party itself alleges that the transaction recorded under the document was never intended to be acted upon at all between the parties and document is a sham. Such a question arises when the party asserts that there was a different transaction altogether that was agreed and intended by the parties and what is recorded was not intended to be of any consequence whatsoever. In the present case, plaintiff asserts that plaintiff executed the sale deed in favour of Smt. Mallavva. It is not the plaintiffs case that some other document was intended to be executed, plaintiff no doubt stated that the document was sham one. In the present case, plaintiff asserts that plaintiff executed the sale deed in favour of Smt. Mallavva. It is not the plaintiffs case that some other document was intended to be executed, plaintiff no doubt stated that the document was sham one. The court, in suit No. 67 of 1977 after consideration of the evidence has allowed. So after the terms being agreed to by the both parties on the question of involvement and issues, the court has recorded the finding. The trial court recorded the finding in favour of the appellant but the lower appellate court considered the evidence of the parties and the lower appellate court recorded a finding that evidence lead by the present plaintiff in suit No. 67 of 1977 i. e. defendant in suit No. 20 of 1977 was unreliable and recorded reasons for it. It held that the evidence lead by the defendant and defendant's witnesses was reliable. It took note of the material contradictions and the like with its existence in the evidence lead by the plaintiff i. e. the present appellant. As will appear from the perusal of the observations made in paragraphs 13 to 18 of the lower appellate court's Order and on consideration of this evidence, the lower appellate court held that the plaintiff of suit No. 67 of 1977 (i. e. defendant of suit No. 20 of 1977) failed to establish her case that the deed as per ex. P-6 was a sham document or benami one or and that the plaintiff-appellant further failed to prove that it was never intended to be acted upon. The document was a sham document or it was intended to be acted upon is pure finding of fact. It was open to the appellate court to reverse the trial court's finding and record a fresh finding according to its appreciation of the evidence. When the lower appellate court has held that the sale deed executed by the plaintiff was not a sham document it was a document which was executed in accordance with the requirement of law then, the deed in that case is held to be effective from the date of its execution as soon as it was registered. The deed, as soon it was registered became operative and effective to convey title and the title passed on to the vendor namely smt. Mallawa who in turn executed the gift deed. The deed, as soon it was registered became operative and effective to convey title and the title passed on to the vendor namely smt. Mallawa who in turn executed the gift deed. No error of law of substantial nature in the findings of the lower appellate court has been pointed out or shown. Once I find that the sale deed as per ex. P-6, dated 4-11-1974 was executed and when I find on perusal of the deed which has been placed before me and translated by the learned counsel for the appellant does not contain any such term which may indicate that a deed relied was not a sale deed but a mortgage deed or a document with an agreement to reconvey. The terms per se show that transaction under deed dated 4-11-1974 was an out and out sale and there is no agreement recorded thereunder from which it can be said that parties had agreed for reconveyance of the property by Smt. Mallawa to the plaintiff after repayment of money. In my opinion, the document in question dated 4-11-1974 ex. P-6 per se appears nothing but out and out sale as already held by the lower appellate court. When I find that the document is out and out sale and having observed that the same is not a sham document as has been held by the lower appellate court, the natural and legal consequences of the deed has been with respect to the property in suit that title to property passed on from the vendor-appellant to the mother of the present appellant, Smt. Mallawa. Smt. Mallawa having became the owner of the property, she was fully competent to transfer the same by gift or sale or the like. No fraud or coercion has been established in this case on Smt. Mallawa by the present respondent namely the defendant in suit No. 67 of 1977 or say plaintiff in suit No. 20 of 1977. ( 16 ) THAT being the position, under the registered gift deed dated 11-10-1976 beyond doubt, the right, title and interest did pass on to the defendant-respondent. ( 16 ) THAT being the position, under the registered gift deed dated 11-10-1976 beyond doubt, the right, title and interest did pass on to the defendant-respondent. The lower appellate court vide paragraph 26 of the judgment has held that evidence of the plaintiff i. e, lead on behalf of the present plaintiff (appellant) on suit No. 67 of 1977 on question of possession on the date of the suit to be unreliable and held that defendant's evidence and case appears to be reliable. It found that the defendant of o. s. No. 67 of 1977 i. e. plaintiff of suit No. 20 of 1977 was in possession of the suit property as owner on the basis of the gift deed dated 11-10-1974 and allowed the appeal and granted injunction. The lower appellate court decreed the suit of the respondent namely plaintiff of suit No. 20 of 1977 and directed the present appellant, who was defendant in suit no, 20 of 1977 not to interfere with the present respondent's possession and enjoyment of the suit property. The findings on the question of fact are no doubt binding on this court in second appeal. ( 17 ) IN view of the findings recorded by the lower appellate court and the own case of the respondent to the effect that subsequent to the filing of the suit by plaintiff in o. s. No. 20 of 1977 the plaintiff of suit No. 20 of 1977 had been dispossessed. It is clarified that by the decree passed in the suit the court below has decreed the suit for reliefs claimed in the suit and it has to be taken as such, as such suit No. 20 of 1977 has been decreed for the relief claimed in the plaint for the decree for injunction and possession and it was clarified that defendant in suit no, 20 of 1977 and plaintiff in suit No. 67 of 1977 have also been restrained from interfering with the possession of the present respondent and the decree of the lower appellate court has to be read like that. ( 18 ) SUBJECT to these observations, the second appeals filed by the plaintiff in suit No. 67 of 1977 and defendant in suit No. 20 of 1977 are hereby dismissed. ( 18 ) SUBJECT to these observations, the second appeals filed by the plaintiff in suit No. 67 of 1977 and defendant in suit No. 20 of 1977 are hereby dismissed. The operative portion of the Order of the lower appellate court shall be read as "the suit No. 20 of 1977 is decreed for the reliefs claimed in the plaint as amended namely decree for possession and injunction", rest of the parts thereof shall remain intact as it is. Thus, both the second appeals are finally disposed of as dismissed subject to the above. In both the appeals, costs are made easy. Let a copy of this Order be placed in the record of r. s. a. No. 12 of 1986. --- *** --- .