JUDGMENT : The plaintiff being aggrieved by the judgment and decree dated 26.10.2013 passed in R.A.No.87/2013 on the file of III Additional District Judge at Bijapur who reversed the judgment and decree dated 18.04.2013 passed in O.S.No. 44/2011 by the III Additional Civil Judge and JMFC, Bijapur has filed this second appeal. 2. The parties are referred with their ranks before the Trial Court. 3. The suit of the plaintiff before the trial Court in brief is as follows; One Venkaji S/o Melagirirao Kulkarni was the father of plaintiff and defendant No.1. Said Venkaji owned and possessed land bearing R.S. Nos. 88, 104, 128, 136, 98/1B, 127 and 133 situated at Babalad village in Bijapur taluka. The said Venkaji died in the year 1957 leaving behind him plaintiff and defendant No.1 as his sons, Laxmibai as his widow, Kantabai, Lalitabai and Indumati as his daughters who have succeeded to the suit properties left by deceased Vankaji. On the death of Venkaji mother of the plaintiff and defendant No.1 and their sisters have orally relinquished their right and interest over the suit properties in favour of the plaintiff and defendant No.1. Therefore, plaintiff and defendant No.1 became joint owners of suit property having half share each. There is partition between plaintiff and defendant No.1 in the year 1979 which resulted in ME No. 530. The lands bearing R.S. No. 88/2 measuring 08 acres 1 guntas, R.S. No. 104/2 measuring 09 acres 03 guntas, R.S. No. 98/1B measurinig 09 acres 03 guntas, R.S. No. 127 measuring 02 acres 09 guntas and R.S. No. 133 measuring 03 acres 06 guntas have fallen to the share of plaintiff Gopal Venkaji Kulkarni. The land bearing R.S. No. 88/1 measuring 08 acres 12 guntas, R.S. No. 104/1 measuring 09 acres 03 guntas, R.S. No. 128 measuring 04 acres 06 guntas and R.S. No. 136 measuring 01 acre 30 guntas have fallen to the share of defendant No.1 Baburao Venkaji Kulkarni. The name of the plaintiff and defendant No.1 were accordingly entered in the records of the suit properties. The plaintiff has denied the certification of ME No. 915 and transfer of land bearing R.S. No. 104/2 in favour of defendant No.1 which is subject matter of the suit. After partition of 1979 if any property is to be exchanged in between plaintiff and defendant No.1 then the same requires registration. The plaintiff has denied the certification of ME No. 915 and transfer of land bearing R.S. No. 104/2 in favour of defendant No.1 which is subject matter of the suit. After partition of 1979 if any property is to be exchanged in between plaintiff and defendant No.1 then the same requires registration. The plaintiff due to illness entrusted the suit property to defendant No.1 for management and went to Hospet. The defendant No.1 got created ME No. 915 and managed to enter his name in the records. On assurance of defendant No.1, the plaintiff who had filed O.S.No. 43/2008 withdrew the same. However, defendant No.1 did not change the records pertaining to the suit properties and started asserting his own right. Therefore, the plaintiff was constrained to file the suit for declaration and possession in respect of suit schedule land R.S. No. 104/2 measuring 09 acres. 4. In response to the summons defendant Nos. 1 to 3 appeared through their counsel and filed written statement contending that the suit of the plaintiff is false, frivolous and not maintainable in law. The relationship between the parties was admitted. Defendants have denied that the plaintiff due to illness entrusted the suit property to the defendant No.1 for management and defendant No.1 got certified ME No. 915 without notice of the plaintiff. It is the case of the defendant No.1 was helping his younger brother from time to time inspite of partition of 1979. The plaintiff and defendant No.1 were cultivating the lands together till the year 1990-91. Out of the family income land bearing R.S. No. 96/1 and 95/1 together measuring 16 acres was purchased in the name of plaintiff. The land bearing R.S. No. 92/B measuring 04 acres 04 guntas was purchased in the name of defendant No.1. The plaintiff was due of society and bank loan and in order to make one compact of R.S. No. 104, the plaintiff has given his land bearing R.S. No. 104/2 measuring 09 acres 03 guntas. It is further contended that the said land was given to defendant No.1 because money was taken by the plaintiff on agreeing to sell the land bearing R.S. No. 88/1 belonging to the defendant No.1. It is further contended that the said land was given to defendant No.1 because money was taken by the plaintiff on agreeing to sell the land bearing R.S. No. 88/1 belonging to the defendant No.1. It is further case of the defendants that one P.M.Galagali on 18.07.1989 in his own handwriting made repartition and the entire R.S. No. 104 was given to the defendant No.1 and some others purchased lands as well. The lands bearing RS Nos. 96/1 and 95/1 which was purchased from N.B.Kulkarni, was given to the plaintiff and the entire loan was agreed to be discharged by defendant No.1. The defendant No.1 has discharged the loan. The plaintiff had taken money from Mahadevappa Timmashetti and Shekappa Chettar agreeing to sell R.S. No. 88/1 belonging to the defendant No.1. Therefore, the dispute once again arose between the plaintiff and defendant No.1 and it was settled by Dundayyaswamy Hiremath. In the said settlement the plaintiff has agreed to give R.S. No. 104/2 to the defendant and in turn defendant No.1 has to execute the sale deed of his land R.S. No. 88/1 to Mahadevappa Timmashetti and Shekappa Chetter. The said settlement was reduced into writing on 21.03.1991. On the basis of which the plaintiff and defendant No.1 together submitted waradi on 21.03.1991 and accordingly ME No. 915 came to be certified in the year 1993. The plaintiff is party to all these proceedings and the plaintiff by acquiescence is estopped from denying the title of defendant No.1. The suit is hopelessly barred by limitation. Therefore, they prayed for dismissal of the suit. 5. On the basis of pleadings of the parties, the trial Court has framed the following issues; 1. Whether plaintiff proves that, he is the exclusive owner of suit property as per oral partition held in the year 1979? 2. Whether the plaintiff further proves that the defendant No.1 in the year 1991 began to manage the suit land on account of illness of the plaintiff? 3. Whether the plaintiff proves that the defendants on the strength of certification of M.E. No. 915 dated 18.03.2008, the defendants causing obstruction the possession and enjoyment of suit property, then the plaintiff had file the suit OS No. 43/2008 for the relief of declaration and injunction with respect to suit land against the present defendants? 4. 3. Whether the plaintiff proves that the defendants on the strength of certification of M.E. No. 915 dated 18.03.2008, the defendants causing obstruction the possession and enjoyment of suit property, then the plaintiff had file the suit OS No. 43/2008 for the relief of declaration and injunction with respect to suit land against the present defendants? 4. Whether the plaintiff further proves that the defendants in O.S.No. 48/2008 voluntarily approached the plaintiff and requested the plaintiff to withdraw the suit that they will nob obstruct him, then plaintiff has withdrawn the suit by filing application U/Sec. 23 Rule 1 of CPC? 5. Whether the plaintiff further proves that, on the strength of withdrawal of suit order passed in OS 43/2008, the defendants on 13.03.2011 forcibly dispossessed the plaintiff from the suit property and now the defendants are in illegal possession of the suit property? 6. Whether the defendants prove that the plaintiffs voluntarily relinquish and allotted the suit land to the defendant No.1 and they together gave waradi on 21.03.1991? (Recasted issue) 7. Whether the defendants prove that the suit is barred by limitation? 8. Whether the plaintiff is entitle for relief sought for? 9. What order or decree? 6. In order to substantiate his case, plaintiff himself was examined as PW 1 and got marked nine documents as Ex.P1 to P9. Defendants have got examined DWs 1 to 3 and got marked Ex.D1 to D178. 7. The Trial Court after hearing both the parties answered issue Nos. 1 to 5 and 7 in the affirmative and issue No. 6 in the negative and consequently decreed the suit of the plaintiff. It was declared that the plaintiff is absolute owner of the suit property land bearing R.S. No. 104/2 measuring 09 acres of Babalad village and defendants were directed to deliver the possession of the suit property to plaintiff within three months. 8. Defendants being aggrieved by the said judgment and decree filed R.A. No. 87/2013 on the file of III Additional District Judge, Bijapur. The first appellate Court after securing the records in the suit and after hearing both the parties allowed the appeal by judgment dated 26.10.2013, thereby the judgment and decree passed by the Trial Court was set aside and suit of the plaintiff was dismissed. 9. The first appellate Court after securing the records in the suit and after hearing both the parties allowed the appeal by judgment dated 26.10.2013, thereby the judgment and decree passed by the Trial Court was set aside and suit of the plaintiff was dismissed. 9. The plaintiff being aggrieved by the judgment and decree of the first appellate Court has filed this regular second appeal on the following grounds; The lower appellate Court has erred in appreciating the fact that there is no joint family existing after partition in the year 1979. Hence, in the absence of registered deed, no transfer of property can be valid. The alleged waradi is not a document of title. Therefore, the plaintiff could not have been divested of the title unless proof of a valid transfer was available. The finding of the Court below that the suit ought to have been filed within 12 years from the year 1991 i.e., the date of the entry in the revenue records is against the law. The suit for declaration and possession cannot be barred under Article 65 of Limitation Act unless the defendant pleads and proves all the ingredients of adverse possession. Courts below have committed a grave error of law in holding that after the partition in the year 1979, there is transfer of property between the parties and such a transfer amounts to a family arrangement. 10. After hearing both the learned counsels, this appeal was admitted to consider the following substantial questions of law. “1. Whether the incorporation of the name of defendant No.1 in the revenue records on the basis of the joint varadi given to the revenue authorities would amount to transfer of property divesting the title of plaintiff more particularly being the property allotted to the share of the plaintiff in the year 1979? 2. Whether the judgment of the First Appellate Court is perverse and illegal for non-consideration of the material evidence placed on record? 11. Learned counsel for the appellant vehemently submitted that mere entry of name of defendant No.1 in the revenue records on the basis of joint waradi given to the revenue authorities would not create any right over the suit property in favour of the defendant No.1 and it does not divest the title of the plaintiff in the absence of registered document. Therefore, the judgment of the first appellate Court is perverse and illegal for non-consideration of material evidence on record. Learned counsel further submitted that when the suit of the plaintiff for declaration and possession is based on title, there is no question of limitation. It was further submitted that partition between plaintiff and defendant No.1 in the year 1979 and that the suit schedule property was allotted to the share of plaintiff is admitted by both the parties. Therefore, after the said partition of 1979 unless there is registered document of relinquishment or transfer of rights of plaintiff over the suit property in favour of defendant No.1, defendant No.1 would not acquire any right, title or interest over the suit schedule property. The question of repartition in the year 1989 and execution of settlement deed and giving joint waradi on 21.03.1991 does not arise as the previous partition is admitted by both the parties. The suit property having given to the share of plaintiff in the family partition of 1979, the plaintiff becomes absolute owner of the said property and mere entry of the name of defendant No.1 in the revenue records cannot divest the title of the plaintiff. Therefore, the judgment and decree passed by the first appellate Court is liable to set aside and the judgment and decree of the Trial Court deserves to be restored. 12. Per contra the learned counsel for the respondents submitted that though the partition of the family properties in the year 1979 is admitted, the parties continued to cultivate the family properties jointly till 1991 and that in between there were several transactions between the plaintiff and defendant No.1. Learned counsel further submitted that in order to discharge the loans obtained by the plaintiff the land allotted to the share of plaintiff to defendant No.1 was sold as per settlement deed. Therefore there was exchange of properties allotted to the share of defendant No.1 in furtherance of settlement deed. Learned counsel further submitted that part of suit property was acquired by UKP and plaintiff never objected for receiving the compensation in respect of acquired land from UKP and that plaintiff has not impleaded the Government as one of the defendants in the suit. Therefore, learned counsel submitted that the judgment and decree of the first appellate Court deserves to be confirmed. 13. I have heard the learned counsels for both the parties. Therefore, learned counsel submitted that the judgment and decree of the first appellate Court deserves to be confirmed. 13. I have heard the learned counsels for both the parties. 14. The appeal is admitted on framing two substantial questions of law mentioned above. Therefore, this Court has to consider whether there was divesting of title of the plaintiff in respect of suit schedule property after said property was allotted to the share of plaintiff in the year 1979 only on the basis of incorporation of name of defendant No.1 in the revenue records which was made on the basis of joint waradi if any, whether the judgment of the first appellate Court is perverse, illegal for non consideration of material evidence placed on record. 15. The defendants have admitted in clear terms that after the death of father, mother and sisters relinquished their right, title and interest over the family properties in favour of plaintiff and defendant No.1 and thereafter in the year 1979 partition was effected between plaintiff and defendant No.1. In pursuance of it ME No. 530 was certified. It is also admitted that suit schedule property bearing R.S. No. 104/2 was allotted to the share of plaintiff in the said partition and accordingly name of plaintiff got mutated in the revenue records of the suit land. It is the case of the defendant No.1 that even after said partition plaintiff and himself were cultivating all the lands together till the year 1990 and in order to pay dues of the plaintiff to society and bank loan and in order to make one compact block of R.S. No. 104, the plaintiff has given suit land R.S. No. 104/2 measuring 09 acres 03 guntas to defendant No.1 in exchange of R.S. No. 88/1 belonging to defendant No.1 which was sold by defendant No.1 in order to satisfy the money borrowed by plaintiff from one Mahadevappa Timmashetty and Shekappa Chetter. It is admitted that defendant No.1 himself has executed sale deed in their favour in respect of land R.S. No. 88/1. It is further case of the defendant No.1 that dispute between plaintiff and himself was settled by one Dundayyaswamy Hiremath who was examined as DW 2. It is admitted that defendant No.1 himself has executed sale deed in their favour in respect of land R.S. No. 88/1. It is further case of the defendant No.1 that dispute between plaintiff and himself was settled by one Dundayyaswamy Hiremath who was examined as DW 2. At that time plaintiff agreed to give suit land to the 1st defendant, in turn defendant has to execute sale deed of his land R.S. No. 88/1 in favour of Mahadevappa Timmashetty and Shekappa Chetter. According to the defendant No.1 said settlement was reduced into writing on 21.03.1991, on the basis of said settlement deed plaintiff and defendant No.1 together submitted a waradi on 21.03.1991 and accordingly ME No. 915 came to be certified in 1993 in favour of defendant No.1. It is further contended by defendant No.1 that plaintiff is party to all these proceedings and now he is estopped from denying the same. Therefore, now the substantial question of law before this Court is whether title of the plaintiff over the suit schedule property was divested in favour of defendant No.1 on the basis of so called settlement deed and joint waradi dated 21.03.1991, in view of the admitted fact that the suit property was allotted to the share of plaintiff in the partition of 1979. 16. Learned counsel for the appellant has relied on decision in the case of Shyam Narayan Prasad V/s Krishna Prasad and others reported in 2018 SAR (Civil) 895 the Hon’ble Supreme Court in the said case has held in para Nos. 17 and 18 as follows: “17. This takes us to the next question as to whether the exchange deed at Exhibit P2 is admissible in evidence or not. The transfer of ownership of their respective properties by defendant Nos. 1 and 2 was done through Exhibit P2 deed of exchange. It was contended by defendant No.1 that the exchange was only of the business. However, a careful perusal of Exhibit P2 clearly shows that the RCC building is also a subject matter of the deed of exchange. The value of RCC building exceeds Rs.100/which is not in dispute. Section 118 of the TP Act defines ‘exchange’ as under; 118. Exchange defined. When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an “exchange”. The value of RCC building exceeds Rs.100/which is not in dispute. Section 118 of the TP Act defines ‘exchange’ as under; 118. Exchange defined. When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an “exchange”. A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.” 18. It is clear from this provision that where either of the properties in exchange are immovable or one of them is immovable and the value of anyone is Rs.100/or more, the provision of Section 54 of the TP Act relating to sale of immovable property would apply. The mode of transfer in case of exchange is the same as in the case of sale. It is thus clear that in the case of exchange of property of value of Rs.100/and above, it can be made only by a registered instrument. In the instant case, the exchange deed at Exhibit P2 has not been registered.” Further the Hon’ble Supreme Court in the said case has held in para No.19 as follows; “19. Section 49 of the Registration Act, 1908 provides for the effect of nonregistration of the document which is as under; ’49. Effect of non-registration of documents required to be registered. No document required by section 17{or by any provision of the Transfer of Property Act, 1882(4 of 1882), to be registered shall (a) affect any immovable Property comprised therein, or (b) confer any power to adopt, or (c) Be received as evidence of any transaction affecting such property or conferring such power. Unless it has been registered.” Therefore, effect of non-registration of such document is that it cannot be received as evidence in any transaction affecting such property or conferring such power. 17. Admittedly in the present case there is no registered settlement deed or relinquishment deed executed by plaintiff in favour of defendant No.1 in respect of suit land. 18. On the other hand it is specific case of the defendant No.1 that only by way of unregistered settlement deed and joint waradi dated 21.03.1991 ME No. 915 came to be certified in his name. 18. On the other hand it is specific case of the defendant No.1 that only by way of unregistered settlement deed and joint waradi dated 21.03.1991 ME No. 915 came to be certified in his name. The defendant No.1 has not disputed that the suit land was allotted to the share of plaintiff in the partition of 1979 and consequently his name was mutated as per M.E No. 530 produced at Ex.P1. Therefore, it is not at all disputed that the plaintiff is absolute owner in possession of the suit schedule property from the date of partition of 1979. The plaintiff has denied repartition in the year 1991. Merely because the plaintiff has admitted the signature in the document confronted to him in his cross examination the defendant No.1 is not entitled to contend that the contents of the said document are also admitted by the plaintiff. Therefore, now he is estopped from denying that the suit land was given to defendant No.1 in exchange of Sy. No. 88/1 belonging to defendant No.1. 19. The first appellate Court mainly accepting the evidence of defendant No.1 that he sold his land bearing R.S. No. 88/1 in favour of Mahadevappa Timmashetti and Shekappa Chetter in order to discharge loan of plaintiff and in exchange of the said land plaintiff has executed settlement deed and therefore, the plaintiff is estopped from denying the same, proceeded to hold that the plaintiff is not entitled for a decree in his favour. The first appellate Court has further observed that plaintiff cannot claim ignorance of certification of ME No. 915 and contend that it has been certified without his knowledge. 20. Learned counsel for the respondents in support of his arguments that the plaintiff is estopped from denying the execution of settlement deed and sale of the property of defendant No.1 in order to discharge the loan availed by plaintiff has relied on decision in the case of Kale and others V/s Deputy Director of Consolidation and others reported in AIR 1976 SC 807 . In this case the Hon’ble Supreme Court has held in para No.10 as follows: “10 (1) The family settlement must be bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; (2) The said settlement must have voluntary and should not be induced by fraud, coercion or undue influence; (3) The family arrangements may be even oral in which case no registration is necessary; (4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in Immovable properties and therefore, does not fall within the mischief of Section 17(2) (sic) (Section 17 (1)(b)?) of the Registration Act and is, therefore, not compulsorily registrable.” 21. Learned counsel for the respondents has relied on the judgment in the case of M.A.Raju V/s Annaiah and others reported in AIR 2003 Kant 497, in this case it is held in para No.22 as follows; “22. It may not be proper to approach to analyse the rights of the parties on the basis of the nature and character of the suit property that it is a selfacquired property or a joint property. The plaintiff no doubt, in his pleadings and evidence has not specifically coined the word Estoppel in his defence. But, the sum effect of pleadings and evidence would indicate all the required definitive ingredients of Doctrine of Estoppel and warrant its application instead of coining the defence by raising the plea of estoppel, the plaintiff has rambled in so many words, which in effect would fulfill the definition of estoppel.” 22. Learned counsel for the respondents regarding conduct of the plaintiff, has relied on judgment in the case of Dalip Singh V/s State of U.P and others decided in Civil Appeal No.5239 of 2002 on 03.12.2009. In para No.21 it is held as follows: “21. Learned counsel for the respondents regarding conduct of the plaintiff, has relied on judgment in the case of Dalip Singh V/s State of U.P and others decided in Civil Appeal No.5239 of 2002 on 03.12.2009. In para No.21 it is held as follows: “21. It is clear that in this case efforts to mislead the authorities and the courts have transmitted through three generations and the conduct of the appellant and his son to mislead the High Court and this Court, cannot but be treated as reprehensible. They belong to the category of persons who not only attempt, but succeed in polluting the course of justice. Therefore, we do not find any justification to interfere with the order under challenge or entertain the appellant’s prayer for setting aside the orders passed by the Prescribed Authority and the Appellate Authority.” 23. Therefore, it was held that litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. 24. The principles stated in these decisions cannot be disputed. However, the respondents would not get any assistance from the said decisions, in order to support their contention that by virtue of unregistered settlement deed and joint waradi, the plaintiff has given suit schedule property to the defendant No.1in exchange of R.S. No. 88/1 of defendant No.1. On the other hand the principles stated in the case of Shyam Naryan Prasad stated supra the Hon’ble Supreme Court has held that after partition even for exchange of the properties registered the document is necessary in order to divest the title where the value of the property exceeds Rs.100/in view of section 17 of Indian Registration Act. It is also further held that mode of transfer in case of exchange is same as in the case of sale. Therefore, unless there was a registered deed of exchange or registered deed of relinquishment or registered deed of settlement executed by the plaintiff in favour of defendant No.1, suit schedule property would not get right, title or interest over the suit schedule property. The plaintiff does not divest nor the defendant No.1 acquired any title, right or interest over the suit schedule property. Admittedly in the present case no such registered document was executed by plaintiff in favour of defendant No.1 in respect of suit schedule property. The plaintiff does not divest nor the defendant No.1 acquired any title, right or interest over the suit schedule property. Admittedly in the present case no such registered document was executed by plaintiff in favour of defendant No.1 in respect of suit schedule property. It is settled law that mere entry in the revenue records does not create any right, title or interest in the property. There cannot be estoppel against statute or law. The estoppel against plaintiff would not exempt defendants from getting registered deed in order to acquire suit property. 25. The question of invoking Article 65 of the Limitation Act also does not arise in the present case as the defendant No.1 has not set up any title in himself by way of adverse possession and suit of the plaintiff is based on title. Therefore, question of limitation does not arise. Suit of the plaintiff for declaration and possession based on his title is perfectly maintainable and plaintiff is entitled for decree as sought in the suit and the Trial Court had properly on appreciating the material on record had rightly decreed the suit of the plaintiff. However, the first appellate Court without considering the material evidence placed on record has proceeded to reverse the said judgment and decree passed by the Trial Court which is to be held as perverse, illegal for non consideration of the material evidence on record. Accordingly first substantial question of law is answered in the negative and second substantial question of law is answered in the affirmative. Therefore, appeal deserves to be allowed. In the result I proceed to pass the following: ORDER The Regular Second Appeal filed under section 100 of CPC is hereby allowed with cost. The judgment and decree dated 26.10.2013 passed in R.A. No. 87/2013 by the III Additional District Judge, Bijapur is hereby set aside and the judgment and decree dated 18.04.2013 passed in O.S.No.44/2011 by the III Additional Senior Civil Judge, Bijapur is restored.