JUDGMENT : K. V. ARAVIND, J. 1. Heard Sri. H.S. Suhas, learned counsel for the appellant, Sri. H.E. Ramesha, learned counsel for Sri. H.C. Prakasha, learned counsel for respondent Nos.2, 3 and 6(a, b, d and f), and Sri. V.F. Kumbar, learned counsel for respondent No.5. 2. This second appeal under Section 100 of the CPC assails the judgment and decree dated 22.04.2009 passed in R.A. No.118/2008 by the Principal District Judge, Bengaluru Rural District, Bengaluru (for short, 'the appellate Court), whereby the judgment and decree dated 28.02.2008 passed in O.S. No.598/2006 by the Court of the Civil Judge (Sr. Division) & J.M.F.C., Devanahalli (for short, 'the trial Court'), came to be set aside. It is pertinent to note that the appellant was not a party to the proceedings either in O.S. No.598/2006 or in R.A. No.118/2008. 3. I.A. No.3/2013 was filed by the appellant seeking permission to prosecute the appeal, which came to be allowed, and the appellant was accordingly permitted to prosecute the appeal. By order dated 26.03.2019, the following substantial questions of law were admitted for consideration by this Court: "1. Is the appellant a necessary party to suit? 2. Whether the reversal of the judgment of the trial Court by the first appellate Court in the facts and circumstances is legally justifiable?" 4. The parties are referred to as they were arrayed before the trial Court. However, for the sake of convenience, the appellant herein shall be referred to as 'the appellant'. 5. Plaintiff Nos.1 to 3 instituted O.S. No.598/2006 against defendant Nos.1 to 9 seeking a judgment and decree declaring that the sale deed dated 09.09.2004 is not binding on the plaintiffs, and further declaring the plaintiffs as the owners of the suit schedule property, together with a permanent injunction restraining defendant Nos.1 and 2 from interfering with their peaceful possession and enjoyment of the same. Defendant Nos.2, 4, 5, 6, 7 and 8 filed their written statements denying the averments in the plaint and contending, inter alia, that the suit property had been sold by defendant Nos.1 and 2 in favour of the appellant herein. 6. The trial Court framed the following issues; "1) Whether the plaintiffs prove that, they are the owner of the suit schedule property having acquired the title by virtue of Panchayath Settlement (Sthira AsthiBhaga Patra) arrived at on defendant (sic). 24-3-1997? 6. The trial Court framed the following issues; "1) Whether the plaintiffs prove that, they are the owner of the suit schedule property having acquired the title by virtue of Panchayath Settlement (Sthira AsthiBhaga Patra) arrived at on defendant (sic). 24-3-1997? 2) Whether the plaintiffs prove that, the Sale Deed dated 9.9.2004, registered document No. YN-1-12469/2004-2005, CD No.YAND-83, Book No.I, in respect of suit schedule property is not binding on them since the 3rd defendant have no right to execute the said deed and also obtained the said deed by defendants. No.1 and 2 by playing fraud in the defendant No.3? 3) Whether the defendant No.2 proves that, the 3rd defendant acquired the right, title and interest on the suit schedule property by virtue of Certificate of Registration of a tenant dated 16.4.1982 and execution of registered sale deed dated 9.9.2004 of suit schedule property in valid? 4) Whether the defendant No. 2 proves that, the suit is bad for non joinder of necessary party? 5) Whether the plaintiffs are entitled for relief of permanent injunction as prayed in the suit? 6) Whether the plaintiffs are entitled the relief as prayed in the suit? 7) What order or decree?" 6.1 The trial Court answered the issues as under: "i) Issue No.1. : In the Negative ii) Issue No.2. : In the Negative iii) Issue No.3. : As per discussion iv) Issue No.4. : In the Negative v) Issue No.5. : In the negative vi) Issue No.6. : In the negative vii) Issue No.7. : As per final order for the following" 7. In support of the plaintiffs’ case, PW.1 was examined and Exhibits P1 to P5 were marked. The defendants did not participate in the suit and no evidence was adduced on their behalf. The trial Court, on consideration of the evidence available on record, dismissed the suit. 7.1 On further appeal, the appellate Court formulated the following points for consideration: "1) Whether the plaintiffs prove that plaintiffs have title to the plaint schedule property? 2) Whether the defendant Nos.1 and 2 prove that they have purchased the property from defendant No.3? 3) What order?" 7.2 The same are answered as under: "1) Point No.1. : In the affirmative 2) Point No.2. : In the negative 3) Point No.3. 2) Whether the defendant Nos.1 and 2 prove that they have purchased the property from defendant No.3? 3) What order?" 7.2 The same are answered as under: "1) Point No.1. : In the affirmative 2) Point No.2. : In the negative 3) Point No.3. : the following order" 7.3 The appellate Court allowed the appeal in R.A.No.118/2008 dated 22.04.2009 and set aside the order of the trial court. 8. Sri H.S. Suhas, learned counsel appearing for the appellant, submits that the appellant has purchased the property in question measuring 0 acre 23 guntas in Sy. No.112 situated at Hosahalli Village, Jala Hobli, Bengaluru North Taluk, from defendant Nos. 1 and 2, who in turn had purchased the property from Sri Hanumanthappa, the father of the plaintiffs. It is contended that plaintiff Nos.1 to 3, in collusion with the other family members arrayed as defendants, instituted O.S.No.598/2006 seeking declaration and injunction against defendant Nos.1 and 2, who are the vendors of the appellant. 8.1 Though defendant Nos.1 and 2 admitted on record that the suit property had been sold by them in favour of the appellant, the plaintiffs failed to implead the appellant, despite the appellant having acquired title to the suit schedule property under a registered sale deed. While the suit came to be dismissed by the trial Court, the first appellate Court, solely on the basis of the statements made by the plaintiffs, has decreed the suit. 8.2 Learned counsel further submits that the impugned decree was not within the knowledge of the appellant. It was only when developmental activities commenced over a larger extent of land measuring about 300 acres, which includes the suit schedule property, that the plaintiffs interfered and claimed ownership on the strength of the judgment and decree in R.A.No.118/2008. 8.3 Learned counsel submits that Sri Hanumanthappa had sold the suit schedule property to defendant Nos.1 and 2 under a registered sale deed dated 09.09.2004, whereas the suit was instituted on 26.10.2004 by the daughters of Sri Hanumanthappa. Defendant Nos.1 and 2, in turn, sold the property to the appellant on 16.12.2005 after obtaining conversion. It is therefore submitted that, in view of the said sale deed, defendant Nos.1 and 2 had no subsisting interest in defending the suit. Defendant Nos.1 and 2, in turn, sold the property to the appellant on 16.12.2005 after obtaining conversion. It is therefore submitted that, in view of the said sale deed, defendant Nos.1 and 2 had no subsisting interest in defending the suit. 8.4 Learned counsel further contends that the factum of sale in favour of the appellant was clearly brought on record in the written statement, and hence, the plaintiffs ought to have impleaded the appellant as a necessary party. Defendant Nos.1 and 2 had categorically stated that, after conveying the property to the appellant, they had no further right, title, or interest therein. 8.5 Learned counsel further submits that plaintiffs and defendant Nos.3 to 9 had the knowledge of sale in favour of the appellant. However, due to collusion, said sale is suppressed and appellant is not arrayed as party to the suit to deprive the legitimate right of the appellant in the suit property. 8.6 Learned counsel further submits that the appellant is in possession of the land in question, which forms part of a larger residential layout that has been developed and in which sites have been allotted. It is further submitted that the plaintiffs have claimed rights on the basis of an alleged oral partition, which the trial Court has rightly rejected. 8.7 Learned counsel contends that the appellate Court, without properly considering the finding of the trial Court regarding the genuineness of the sale deed executed by defendant No.3 in favour of defendant Nos.1 and 2, has erroneously held that the said sale deed was obtained by fraud. Since defendant Nos.1 and 2 no longer had any interest in the property after conveying it to the appellant, the suit was not effectively contested by leading evidence, which has resulted in serious prejudice to the appellant’s rights and interests. 8.8 Accordingly, learned counsel submits that the judgment and decree of the appellate Court be set aside and the matter be remanded to the trial Court for fresh consideration. 9. Per contra, Sri H.E. Ramesha, learned counsel appearing for Sri H.C. Prakasha, learned counsel for respondent Nos.2, 3 and 6(a, b, d and f), submits that the appellant has purchased the property during the pendency of the suit. Learned counsel further submits that the suit schedule property had fallen to the share of the plaintiffs in the partition among the family members. Learned counsel further submits that the suit schedule property had fallen to the share of the plaintiffs in the partition among the family members. It is contended that the third defendant had no right, title or interest to execute the sale deed in favour of defendant Nos.1 and 2. 9.1 Learned counsel further submits that defendant No.3 has affixed his signature on the partition deed, whereas his thumb impression appears on the sale deed. It is contended that, at the time of execution of the sale deed, defendant No.3 was suffering from multiple ailments and that the sale deed was obtained by fraud and subsequently registered. Learned counsel submits that the appellate Court, having taken these aspects into consideration, has rightly decreed the suit. 9.2 It is further submitted that the plaintiffs have continued to remain in possession of the suit schedule property. Learned counsel contends that no document was produced before the Courts below to establish the alleged sale of the suit schedule property by defendant Nos.1 and 2 in favour of the appellant. In the absence of such evidence, the trial Court has rightly held that the suit is not bad for non- joinder of a necessary party. This finding, having attained finality, has not been subjected to challenge. 9.3 Learned counsel additionally submits that the certified copy of the sale deed produced before this Court cannot be taken on record at this stage. 10. Sri V.F. Kumbar, learned counsel appearing for respondent No.5, submits that the purchase of the suit schedule property from defendant No. 3 was bona fide, which is evident from the registered sale deed dated 09.09.2004. Learned counsel further submits that defendant Nos.1 and 2 executed a registered sale deed in favour of the appellant on 16.12.2005 and that possession was duly handed over. 10.1 It is further submitted that the factum of the sale deed dated 16.12.2005 was brought on record before the trial Court, and despite this, the plaintiffs did not take any steps to implead the appellant, who is a necessary party to the proceedings. Learned counsel contends that, in view of the sale deed dated 16.12.2005, the rights in the property stood transferred to the appellant, making the appellant both a proper and necessary party to the suit. Learned counsel submits that for non-joinder of the necessary party, the judgment and decree cannot be sustained. Learned counsel contends that, in view of the sale deed dated 16.12.2005, the rights in the property stood transferred to the appellant, making the appellant both a proper and necessary party to the suit. Learned counsel submits that for non-joinder of the necessary party, the judgment and decree cannot be sustained. 10.2 Respondent No.4, though served, has remained unrepresented; accordingly, notice has been held sufficient by order dated 28.11.2014. 11. Considered the submissions of learned counsel for the parties and perused the material on record. 12. The plaintiffs submit that the property in question was granted under Section 55 (1) of the Karnataka Land Reforms Act , 1961, by a certificate dated 16.04.1982. It is the case of the plaintiffs that the suit schedule property is the joint family property though allotted in favour of defendant No.3- Hanumanthappa, their father. Owing to the ill-health of defendant No.3, he effected a partition of the family properties among himself, the plaintiffs, and defendant Nos.4 to 9. In the said partition, the suit schedule property was allotted to the plaintiffs, and defendant No.3 executed a palu patti dated 24.03.1997. 13. The plaintiffs assert that ever since the date of allotment, they have been in peaceful possession and enjoyment of the suit schedule property and have raised eucalyptus plantations thereon. Upon obtaining an encumbrance certificate from the competent authority, they discovered that defendant No.3 had executed a registered sale deed dated 09.09.2004 in favour of defendant Nos.1 and 2. Consequently, the plaintiffs instituted the present suit challenging the said sale deed. 14. Defendant No.2 filed a written statement denying the plaint averments, including the plaintiffs’ claim of possession over the suit schedule property. The alleged partition among the plaintiffs, defendant No.3, and defendant Nos.4 to 9 was also specifically disputed. Defendant No.2 further contended that defendant No.3 had acquired right, title, and interest over the property through a certificate of registration as an occupant under Section 55 (1) of the Karnataka Land Reforms Act , 1961, and that he thereby became the absolute owner competent to execute the sale deed. 15. Defendant No.2 further contended that defendant No.3 had acquired right, title, and interest over the property through a certificate of registration as an occupant under Section 55 (1) of the Karnataka Land Reforms Act , 1961, and that he thereby became the absolute owner competent to execute the sale deed. 15. It was additionally contended that the suit is not maintainable for non-joinder of a proper party, as the suit schedule property had already been sold by defendant Nos.1 and 2 in favour of the appellant-Society, pursuant to which all revenue entries have been mutated and the Society is in possession and enjoyment of the property. 16. Defendant Nos.4, 5, 6, 7 and 8 filed their written statements denying any knowledge of the transactions relating to the transfer of the land between defendant Nos.1 to 3. These defendants supported the palu patti executed on 24.03.1997. 17. The trial Court observed that the palu patti dated 24.03.1997 is unregistered, and neither the witnesses, scribe, nor the notary before whom it was executed were examined to prove its execution. The trial Court further held that defendant No.3 acquired the property through tenancy, and no documents were produced to ascertain the conditions or the rights of the other family members. 18. It was noted that the original of Ex.P2 dated 24.03.1997 was not produced before the Court, which is relevant in view of the defence of defendant No.2, who denied the genuineness of the said document. The trial Court also observed that the sale deed in favour of defendant Nos.1 and 2 is dated 09.09.2004, and the cause of action is claimed from the date when the encumbrance reflecting the sale deed was obtained. However, the encumbrance certificate is not on record. 19. The trial Court noted that, had the plaintiffs been aware of the sale deed dated 09.09.2004, the encumbrance certificate would also have reflected the subsequent sale deed dated 16.12.2005. This raises doubts regarding the correctness of the cause of action alleged by the plaintiffs and indicates a possible suppression of the sale deed dated 16.12.2005. Otherwise, there would have been no difficulty for the plaintiffs in producing the encumbrance certificate. 20. The trial Court further held that the plaintiffs failed to establish their possession of the suit schedule property. This raises doubts regarding the correctness of the cause of action alleged by the plaintiffs and indicates a possible suppression of the sale deed dated 16.12.2005. Otherwise, there would have been no difficulty for the plaintiffs in producing the encumbrance certificate. 20. The trial Court further held that the plaintiffs failed to establish their possession of the suit schedule property. The Court noted that the case of defendant Nos.1 and 2, that the property in question had been sold in favour of the appellant under the registered sale deed dated 16.12.2005, was not considered, as no such document was placed on record. Had the plaintiffs produced the encumbrance certificate, as pleaded, the factum of the sale deed dated 16.12.2005 would have come to light. 21. The trial Court observed that, in view of the specific stand taken by defendant Nos.1 and 2, the burden was on the plaintiffs to verify the fact of the sale deed dated 16.12.2005. In light of the above, the trial Court dismissed the suit. 22. The appellate Court, without properly examining the evidence on record, proceeded on presumption. While recording its finding to decree the suit, the appellate Court erred in not appreciating that the burden to prove fraud in the execution of the sale deed dated 09.09.2004 lay squarely on the plaintiffs. 23. In answering the first point for consideration, the appellate Court noted that the evidence of PW.1 was not challenged by cross-examination, nor was further evidence led by the defendants, and hence concluded that the oral evidence of PW.1 should be accepted. Relying on Ex.P2, the appellate Court held that the plaintiffs had proved title to the property. Such a finding is unsustainable. 24. The plaintiffs did not produce the original of Ex.P2. Its genuineness was disputed by defendant No.2. The plaintiffs also failed to examine the witnesses or the scribe of Ex.P2. Although Ex.P2 is notarised, it remains unregistered, and the notary, who could attest to its execution, was not examined. In the absence of proof of Ex.P2 in accordance with law, the appellate Court was not justified in accepting it as genuine and in recording title to the property in favour of the plaintiffs. 25. Although Ex.P2 is notarised, it remains unregistered, and the notary, who could attest to its execution, was not examined. In the absence of proof of Ex.P2 in accordance with law, the appellate Court was not justified in accepting it as genuine and in recording title to the property in favour of the plaintiffs. 25. The appellate Court further erred in failing to consider that the plaintiffs’ cause of action arose only upon obtaining the encumbrance certificate, which reflected the sale deed dated 09.09.2004, adverse to their interest as per Ex.P2. The encumbrance certificate, including its date, was not produced before the Court. Had the encumbrance certificate been produced, it would also have reflected the subsequent sale deed dated 16.12.2005, and any question of suppression of that deed could have been addressed. 26. When the sale deed dated 09.09.2004 had been acted upon by defendant Nos.1 and 2, and a subsequent sale deed was executed on 16.12.2005 in favour of the appellant, any challenge to the sale deed dated 09.09.2004 would necessarily affect the title acquired by the appellant under the registered sale deed dated 16.12.2005. Any finding rendered with respect to the sale deed dated 09.09.2004 would thus have a direct bearing on the appellant’s title under the sale deed dated 16.12.2005. In that view of the matter, the appellant was both a proper and necessary party to the proceedings. 26.1 The Courts below erred in drawing an inference that the existence of the sale deed dated 16.12.2005 was not established merely because the document was not produced before the Court. There was sufficient material on record to establish that defendant Nos.1 and 2 had transferred the schedule property in favour of the appellant. 27. While addressing Point No.2, the appellate Court held that the LTM of defendant No.3 appears on the sale deed dated 09.09.2004, and that the payment was made in cash, whereas defendant No.3 had signed the palu patti dated 24.03.1997. On this basis, the appellate Court concluded that the sale deed dated 09.09.2004 at Ex.P3 was obtained by fraud. 28. The appellate Court erred in arriving at this conclusion. The plaintiffs merely contended that the sale deed was executed by defendant No.3 while he was ill. However, no evidence was adduced to establish that defendant No.3 was incompetent to execute the sale deed. 28. The appellate Court erred in arriving at this conclusion. The plaintiffs merely contended that the sale deed was executed by defendant No.3 while he was ill. However, no evidence was adduced to establish that defendant No.3 was incompetent to execute the sale deed. It is not alleged by the plaintiffs that the LTM on Ex.P3 of defendant No.3 is forged or fabricated. Consequently, it is impermissible to infer that defendant No.3’s signature on Ex.P2 renders the execution of Ex.P3 with his LTM fraudulent. 29. When Ex.P2 itself remains unproved, any comparison between the registered document (Ex.P3) and the unregistered document (Ex.P2) is impermissible. Ex.P3, being a registered document, enjoys statutory presumption under law, which is not available to Ex.P2. Further, the plaintiffs have not alleged that the LTM of defendant No.3 on Ex.P3 is not genuine. In the absence of such a case, the appellate Court went beyond the pleadings and recorded a finding that has no basis in, or support from, the evidence on record. There is no evidence to disprove the LTM of defendant No.3 on Ex.P3. 30. If the evidence on record is meticulously examined, it is evident that the factum of the sale deed dated 16.12.2005 was within the knowledge of the plaintiffs as well as all the defendants. Prima facie, it appears that the plaintiffs and defendant Nos.3 to 9, being family members claiming rights through Ex.P2, suppressed the existence of the sale deed dated 16.12.2005 before the Court. The sale deed dated 16.12.2005 is a registered document. Had the plaintiffs or defendant Nos.1 and 2 produced the said sale deed, the trial Court would have considered the necessity of impleading the appellant as a party to the suit. 31. The appellate Court, without any basis, recorded a finding and drew an inference which is not sustainable. The appellate Court also failed to appreciate the findings of the trial Court. The finding of the appellate Court declaring the sale deed dated 09.09.2004 as tainted by fraud is unsustainable and lacks logical foundation. 32. The appellant claims right, title, and interest in the property through the registered sale deeds dated 09.09.2004 and 16.12.2005. Both the trial Court and the appellate Court proceeded on the basis that defendant Nos.1 and 2 did not lead evidence nor cross-examine the plaintiffs’ witness. 32. The appellant claims right, title, and interest in the property through the registered sale deeds dated 09.09.2004 and 16.12.2005. Both the trial Court and the appellate Court proceeded on the basis that defendant Nos.1 and 2 did not lead evidence nor cross-examine the plaintiffs’ witness. In view of the sale deed dated 16.12.2005, defendant Nos.1 and 2 no longer had any right, title, or interest in the property to effectively defend the suit. Had the sale deed dated 16.12.2005 was produced before the Courts below, the issue for consideration would have altogether different. 33. It is not even the case of the plaintiffs that the pendency of the proceedings was known to the appellant. The original suit and R.A.No.118/2008 were conducted without the knowledge of the appellant, who had acquired right, title, and interest in the property through registered sale deeds, to which statutory presumption in favour of the appellant is attracted. 34. For the foregoing reasons, this Court is of the view that the appellant is a proper and necessary party, and that the order in R.A.No.118/2008 is unsustainable on the ground of non-joinder of a necessary party. Accordingly, the following: ORDER (i) The Regular Second Appeal is allowed (ii) The first substantial question of law is answered in the 'affirmative'. (iii) The second substantial question of law is answered in the 'negative'. (iv) The judgment and decree dated 28.02.2008 in O.S.No.598/2006 on the file of Civil Judge (Sr. Division) & J.M.F.C., at Devanahalli, and the judgment and decree in R.A.No.118/2008 dated 22.04.2009 on the file of Prl. District Judge, Bengaluru Rural District, Bengaluru, are set aside. (v) O.S.No.598/2006 is restored to its file for fresh consideration. (vi) The appellant is permitted to be impleaded as party to the suit with liberty to file written statement within the time as granted by the trial Court and to lead evidence in accordance with law. (vii) The trial Court shall not be influenced by the findings recorded hereinabove while considering the suit afresh. (viii) Considering that the suit is of the year 2006, the trial Court is requested to expedite the remand proceedings. (ix) No order as to cost.