H. N. TILHARI, J. ( 1 ) THIS civil revision petition under Section 115 of the code of civil procedure ('the code' for short) arises from the judgment and order dated 21-1-1995 passed by the additional civil judge, kolar (divakar rao, j.) In m. a. No. 97 of 1994 allowing the defendant's appeal and setting aside the judgment and order dated 19-11-1994 passed by the principal munsiff, kolar on la. I filed under order 39, rules 1 and 2 of the code in o. s. No. 371 of 1993. ( 2 ) THE facts of the case in brief are that the plaintiff i. e. , applicant (revisionist) and respondent 2 filed a suit for declaration of title and permanent injunction in respect of the suit schedule property with the allegations to the effect the suit property originally belonged to their father chennappa and after chennappa's death the plaintiff succeed to it as his heirs and entered into joint possession. They further alleged that defendant respondent 1 had no right, title or interest therein but defendant 1 has started illegally interfering with the plaintiff's possession and enjoyment of suit property. That along with the plaint of the suit, the plaintiff-applicant filed an application under order 39, rules 1 and 2 of the code for the grant of temporary injunction. The defendant put in appearance and he filed the objections. The trial court after hearing the parties, granted an order of temporary injunction in the following terms:"the i. a filed by the plaintiffs under order 39, rules 1 and 2 of the C. P. C. read with Section 151 of the C. P. C. is allowed. The defendant is hereby restrained by way of temporary injunction order from interfering in actual possession and enjoyment of the plaintiff's over the suit property till the disposal of the suit. There is no order as to costs". the trial court before granting the injunction order in the above terms considered the question of prima facie case and held that the plaintiffs had made out a prima facie case showing their possession on the date of the suit in respect of the suit properties to the trial court subjective satisfaction. There is no order as to costs". the trial court before granting the injunction order in the above terms considered the question of prima facie case and held that the plaintiffs had made out a prima facie case showing their possession on the date of the suit in respect of the suit properties to the trial court subjective satisfaction. It is further held that in case the defendant is allowed to interfere in possession of the plaintiffs a lot of inconvenience and injury would be caused to the plaintiffs and it would obstruct the regular cultivation from time to time. It also held that balance of convenience was in favour of the plaintiffs and the plaintiffs would suffer irreparable loss or injury in case the temporary injunction order was refused. ( 3 ) HAVING felt aggrieved from the judgment and order of the trial court dated 19-11-1994, the defendant opposite party preferred the above mentioned civil miscellaneous appeal No. 97 of 1994 under order 43, Rule 1 of the code read with Section 104 thereof. The lower appellate court allowed the appeal and set aside the order of temporary injunction after having taken a view that the plaintiffs had concealed the fact of simple mortgage of the property by plaintiff in favour of defendant and observed that the mortgage and the agreement of sale were made on the same day. The lower appellate court further observed that when these two documents were read together an irresistable inference had to be drawn that plaintiff had some dealings with defendant and that they were not fair before the court by concealing the same. The lower appellate court further observed and recorded the findings to the following effect. "no doubt in a simple mortgage the question of delivery of possession do not arise, but when agreement of sale is also there it goes to show that the possession of the plaintiff is doubtful. The theory that the owner is deemed to be in possession of the property is correct, but in the instant case the ownership is not disputed. After having made these observations, the lower appellate court held that the possession of the plaintiff was doubtful, and as such in such doubtful case the granting of injunction would create more problem and more hardship and difficulties and that the granting of injunction was not proper. After having made these observations, the lower appellate court held that the possession of the plaintiff was doubtful, and as such in such doubtful case the granting of injunction would create more problem and more hardship and difficulties and that the granting of injunction was not proper. It further observed if suppose the plaintiff is in possession the order of this court vacating the injunction will not come in the way of plaintiffs possession. If the defendant is in possession then also the order of vacating injunction will not come in the way of defendants possession. In this way the vacating the injunction order will cause irreparable loss and injury to the defendant. The court further held that after all this is an agricultural land, the loss could be valued and as such the granting of injunction is not correct. Having recorded these findings the lower appellate court set aside the injunction order granted by the trial court and allowed the defendant's appeal. ( 4 ) THAT having felt aggrieved from the order dated 21-1-1995, the plaintiff-applicant has come up in revision under Section 115 of the Code of Civil Procedure and has filed this petition on revision. ( 5 ) I have heard Sri k. Prabhakar, learned counsel for the revisionist-applicant and Sri g. a. srikante gowda, the learned counsel appearing for respondent 1 at length. ( 6 ) ON behalf of the revisionist-applicant it has been contended that the appellate court or the court in appeal is ordinarily not entitled to interfere with the order of the trial court unless and until the order is one exhibiting arbitrary, exercise of the discretion by the trial court and the findings recorded therein forming the basis of the order of the trial court are capricious, perverse or arbitrary. The order 39, Rule 1 confers discretionary jurisdiction and as such the lower appellate court should not have interfered with the exercise of discretionary power and with order impugned. It is contended before me by Sri k. Prabhakar, that the lower appellate court acted illegally and with material irregularity in interfering with the order of the trial court granting temporary injunction as it interfered with the findings of prima facie case of possession on the date of the suit which had been recorded by the trial court. It is contended before me by Sri k. Prabhakar, that the lower appellate court acted illegally and with material irregularity in interfering with the order of the trial court granting temporary injunction as it interfered with the findings of prima facie case of possession on the date of the suit which had been recorded by the trial court. Sri prabhakar, secondly submitted that it is a well settled principle of law that an agreement of sale unless it is admitted or is proved cannot be taken into consideration under law as a piece of evidence of the parties to the case. He submitted that in case the execution of agreement is admitted it may be open to the court to consider the assertions made in the deed and the contents thereof as proof of admission. But where the documents viz. , The agreement of sale is denied, as well as the execution is denied in that case, without proof of execution of agreement the document shall not be taken as piece of evidence admissible for the purpose of determining the question of possession and that being the position when the lower appellate court recorded the findings on the question of possession to the effect that possession had been delivered to the defendant the lower appellate court acted illegally in exercise of jurisdiction and the findings on possession recorded by it is vitiated by illegality in exercise of jurisdiction. Sri prabhakar further submitted that there was no concealment of fact. He submitted that the mortgage was not usufructuary mortgage in which the mortgagor delivered the possession or undertakes to deliver possession to the mortgagee. In the present case, it was a simple mortgage. That this court under Section 115 of the code has got power to reverse that finding as that has got the tendency of causing the substantial irreparable injury to the plaintiffs. It may result in multiplicity of proceedings. In support of his contention Sri prabhakar, made a reference to the decision of this court in Smt. Lalithakshi Annadanagouda v Sadashivappa Basappa Patil and another , as well as to the decision of this court in Gollappagouda and others v Linganna. ( 7 ) ON behalf of respondents Sri srikante gowda, submitted that the jurisdiction of this court is limited by the conditions prescribed under Section 115 and this court is not sitting in a court of appeal. ( 7 ) ON behalf of respondents Sri srikante gowda, submitted that the jurisdiction of this court is limited by the conditions prescribed under Section 115 and this court is not sitting in a court of appeal. He submitted that the appellate court has jurisdiction to consider the matter and if the finding appears to be erroneous or the like it can reverse the decision of the court and set aside the order of injunction. Sri srikante gowda, submitted that the appellate court has got the power to reverse the finding. He submitted that a perusal of Section 96 (1) and (4) as well as Section 104 read with order 43 reveals that so far as the first appeals are concerned, except in case covered by Section 96 (4) it is within the jurisdiction of the appellate court, in appeals either from decree or from Order, to arrive at conclusions on the basis of evidence. Sri srikante gowda, further submitted that in this case the lower appellate court upset the order particularly taking the view that the plaintiff-applicant has concealed his relationship with the defendant-respondent and has not disclosed about the two transactions viz. , The case of execution of mortgage and the agreement of sale. He submitted that the appellate court set aside the order of the trial court primarily on the ground of misrepresentation of concealment of fact. Sri srikante gowda was called upon to explain one circumstance whether it is correct that execution of agreement of sale was denied by the plaintiffs in the trial court at any stage particularly when this fact is mentioned in the judgment of the trial court and if not was that observations challenged at the time of first appeal in the grounds of appeal. He very fairly submitted that really the statement of fact had never been challenged in the lower appellate court which is contained in the judgment of the trial court that the plaintiffs had denied the execution of agreement of sale. The learned counsel further submitted that the plaintiff never denied in the trial court the execution of agreement of sale. He very fairly submitted that really the statement of fact had never been challenged in the lower appellate court which is contained in the judgment of the trial court that the plaintiffs had denied the execution of agreement of sale. The learned counsel further submitted that the plaintiff never denied in the trial court the execution of agreement of sale. But he admits that the statement of fact contained in the judgment of the trial court that the plaintiff denied the execution of agreement to sale was not contested or challenged at appellate stage in the memorandum of appeal nor at the stage of argument in the first appellate court as appears from the grounds of appeal and the contents of the appeal judgment. Sri srikante gowda, has repeatedly said that an execution of agreement was not denied by the plaintiff-applicant in the trial court but it was denied by the applicant in the appellate court. But he has not been able to show that it had not been so denied. Sri srikante gowda, submitted that really the lower appellate court has considered the evidence that is the affidavit and the documentary evidence consisting of the mortgage deed and the agreement to sale and the contents thereof and on the basis thereof it has arrived at as a finding of question of fact to the effect that the plaintiffs possession on the date of the suit was doubtful and it is a pure finding of fact and it need not be interfered with the revision under Section 115 of the code. Sri srikante gowda, in support of his contention tried to place reliance on the decision of this court in the case of R. Dilip Kumar v S. Ramu and another and made reference to the decision of the Bombay high court in the case of M/s. Seemax Construction Private Limited v State Bank of India and another , laying down the principle of law to the effect that the suppression of material fact by itself is a sufficient ground to decline the discretionary relief of injunction. Sri srikante gowda also made reference to the decision of the Supreme Court in Udai Chand v Shankar Lal and others , for the same proposition to the effect that the relief sought in the nature of grant of special leave or temporary injunction can be revoked if there is suppression of material facts. Sri srikante gowda also made reference to the decision of the Supreme Court in the Case of Sarju Pershad Ramdeo Sahu v Jwaleshwari Pratap Narain Singh and others , in the context of appellate court's power and Section 107 of the code, laying down the law to the effect that the finding of fact based on conflicting evidence can be reversed by the appellate court. Sri srikante gowda submitted that the single judge in the case of Smt. Lalitha's case, supra, is not binding precedent as the learned judge in this court has not considered the scope of Section 107 which applies in the matters of appeals whether appeals from decrees or orders and particularly it had not applied its mind to sub-section (2) of Section 107 of the C. P. C. and to the law laid down in sarju pershad's case, supra. In this context the learned counsel for the respondent made reference to the decision of the Supreme Court in A. R. Antulay v R. S. Nayak and another. The learned counsel further submitted in case revision is allowed and injunction is granted necessary conditions and terms may be imposed. I have applied my mind to the contentions of the learned counsels for the parties. Before i proceed, i must observe that jurisdiction of this court is limited in its extent under Section 115 to the jurisdictional error as indicated by clauses (a) (b) and (c) of sub-section (1) of Section 115 as well as by other conditions mentioned in Section 115. As regards the first contention of the learned counsel for the applicant that the jurisdiction of the appellate court in appeal from injunction order is limited and i find no substance in this contention. The decision which had been relied upon by the learned counsel for the applicant-revisionist namely in the case of Smt. Lalithakshi's case, supra, is based on non-consideration of the scheme of Provisions of sections 96, 104 and 107 of the code. The appeal which lies under order 43, is maintainable under Section 104 read with order 43. The decision which had been relied upon by the learned counsel for the applicant-revisionist namely in the case of Smt. Lalithakshi's case, supra, is based on non-consideration of the scheme of Provisions of sections 96, 104 and 107 of the code. The appeal which lies under order 43, is maintainable under Section 104 read with order 43. Neither under Section 104 nor Section 96 (1) nor order 43 put any rider on the scope of jurisdiction of the first appellate court expressly or by necessary implications. Section 107 deals with the power of the appellate court and it mentions subject to the Provisions of the code subject to such limitations as may be prescribed. The appellate court has got these powers which are mentioned in sub-section (1) of Section 107 and sub-section (2) of Section 107 further provides that subject to these very condition referred to in sub-section (1) the jurisdiction and power of the appellate court shall be the same as that of the original court. A reading of Section 107 reveals that subject to the limitations expressly prescribed or provided either in that Section providing for the appeal or orders contained in the C. P. C. dealing with the appeal to power of the trial court in the first appeal, the power vested and duties imposed on appellate court are same as that of the trial court, the scope of Section 107 had been considered by the Supreme Court as early in sarju pershad's case, supra. It will be profitable to quote certain material passage from that decision. Their lordship of the Supreme Court observed as under:"para 7: the question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial judge. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of 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 a 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". ( 8 ) THEIR lordship of the privy council made a reference to the case of sara Veeraswami Alias Sara Veerraju v Talluri Narayya (Deceased) and others as well. That as observed earlier it is only in a case of appeal under Section 96 (4) and in case of second appeal the jurisdiction of the appellate court is not akin to that of original court, because Section 96 (4) provides that no appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by courts of small causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees, and the second appeal under Section 100 will lie only on substantial question of law. So far first appeals there is no such limitation prescribed. Thus in my opinion, the appellate court could interfere with the order of injunction on the basis of admissible evidence if it would have taken contrary view. To have a power or jurisdiction is a different matter. If the power which is vested in the court is exercised illegally, then the court of revision can interfere. It is also well settled if a finding of fact or finding is arrived at on the basis of certain document which is not an evidence by itself unless it is proved or it is based on otherwise inadmissible piece of evidence then the finding arrived at on the basis of such document or inadmissible evidence can be said to have been arrived at by the court acting illegally and with material irregularity in exercise of jurisdiction. In the present case, it is clear from the judgment of the trial court as well that the agreement to sell on which the lower appellate court has relied, execution thereof has been denied by the plaintiff, as mentioned in the judgment of the trial court. This factum mentioned in the judgment of the trial court has never been challenged in the grounds of appeal, as a perusal of the copy of the grounds of appeal placed before me by the learned counsel for the applicant. Apart from that the appellate court judgment also shows that it was urged before the appellate court that the documents namely agreement to sell filed by the defendant has been denied and has not been proved to have been executed by the plaintiff nor has it been admitted by the plaintiff that he had executed as such it could not and should not be considered. But the lower appellate court on this aspect of the matter attached no value and had rejected the contention on illegal basis. The lower appellate court observed "that the question whether really agreement of sale was executed how far a legal sanctity and evidenciary value is to be attached and what is connection in between agreement of sale and mortgage is to be seen at the regular trial. At this juncture when the court is deciding the interlocutory matter, the merits of the case in its depth need not be gone through. This court has to consider whether plaintiffs are in prima facie possession over the property". These observations of the lower appellate court reveal that the lower appellate court assumed that every document filed by the party is to be taken to be a piece of evidence and all these consideration and questions whether registered or unregistered whether its execution is proved or not proved whether its execution is admitted or not admitted are immaterial to there being admissible or there being considered as admissible or inadmissible piece of evidence are irrelevant at this stage really amounts to be wrong and illegal approach of the court amounting to illegality or atleast material irregularity in exercise of jurisdiction by a court. That the agreement in the present case was unregistered. That, in my opinion, no presumption could be raised about its execution etc. That the agreement in the present case was unregistered. That, in my opinion, no presumption could be raised about its execution etc. The document could not be taken as a piece of evidence for the purpose of deciding the matter or for assuming it to be containing an admission of the plaintiff. Even what is taken as evidence is marked as exhibit in the suit. When i so observe that when the agreement was denied by plaintiff-petitioner it was or had to be proved by the defendant i. e. , respondent before it could not be read as evidence against the plaintiff-applicant, i find support from the decision of this court in the case of gollappagouda's, supra, wherein this court has observed as under:"having regard to the rival contentions this court summoned the records of the lower court to peruse the agreement for sale the execution of which the plaintiff had denied. It is seen from the records that plaintiff has not signed the said agreement of sale. Therefore, if the defendant has not yet established his full rights under the disputed document, he certainly is not entitled to claim the benefit under the document which the appellate court has rightly refused to extend to the defendant; the capricious order passed by the munsiff deserved interference". before making these observations, this court in gollappagouda's case, supra, had also observed that the appellate court essentially relied upon a decision of this court in Sharma v Puttegowda , in which this court had ruled that a mere recital in the agreement for sale itself would not be sufficient to say that the plaintiff had been in possession of the property because defendants 1 and 2 had denied execution of the agreement for sale. In the instant case, the lower court ought not to have placed reliance on that document to come to prima facie conclusion that the defendant was in possession. A perusal of this decision shows that when the execution of the agreement to sell had been denied then unless its execution has been proved, it was not legally open to the appellate court to place reliance on that document to prove delivery of possession of the plaintiff to the defendant. This point by itself is sufficient to dispose of the revision. As such the other contentions need not be gone into at this stage. This point by itself is sufficient to dispose of the revision. As such the other contentions need not be gone into at this stage. ( 9 ) HENCE, this civil revision petition is being allowed with costs. The order of the appellate court is set aside. The order of the trial court is restored. The lower appellate is directed to dispose of miscellaneous appeal No. 97 of 1994 afresh in accordance with law. --- *** --- .