JUDGMENT : M.G.S. KAMAL, J. 1. The plaintiffs in O.S.No.77/1989 are before this Court, being aggrieved by the judgment and decree dated 05.12.2005 passed in Regular Appeal No.52/2004 on the file of District Judge, Fast Track Court-II, Uttara Kannada, Karwar (for short “the First Appellate Court”) by which the First Appellate Court set aside the Judgment and decree dated 10.10.2000 passed in O.S.No.77/1989 on the file of Civil Judge, (Junior Division), Karwar (for short “the trial Court”). 2. Though the above suit has been filed by the plaintiff against the defendants for recovery of possession of the suit property and for mesne profits, based on the allegation that defendant No.1 and his brother defendant No.2, broke open the lock of the suit property and demanded share in the same, a little back ground of this case is required to be narrated. One Dulba Nilu Chamgar, also known as Borker had four sons viz., 1) Yeshwant, 2) Datta, 3) Ganapati, 4) Tukarama and a daughter Leela.Ganapati is the plaintiff, while the legal representatives of Yeshwant, Datta and Tukaram are the defendants in the present suit and the daughter Leela is the defendant No.14. 3. The property, which is the subject matter of the suit, namely Sy.No.24-B/3 measuring 0-5-0 guntas and Sy.No.24/A measuring 0-2-6 guntas, with a house bearing Karwar Municipal House No.1922 (hereinafter called as ‘suit property’) admittedly belonged to Dulba Nilu Chamgar @ Borker. That upon the demise of Dulba Nilu Chamgar @ Borker, the property was managed and looked after by his eldest son Yeshwant. It appears Ganapati the plaintiff herein had lent a sum of Rs.1,300/- to Yeshwant, purportedly for the welfare of the joint family upon an agreement that the said amount would be returned to Ganapati within a period of five years. Seeking recovery of the said amount, Ganapati the plaintiff herein had filed a suit in O.S.No.103/1973 against his other two brothers viz., Datta and Tukarama, as Yeshwant had passed away by that time. The said suit was dismissed as premature by the Judgement and decree dated 10.10.1976. 4. Being aggrieved, Ganapati preferred a Regular Appeal in R.A.No.74/1976. On 13.09.1977, a compromise was arrived between Ganapati and his other two brothers, Datta and Tukarama. In terms of which, while acknowledging the loan lent by Ganapati, the said Datta and Tukaram purportedly agreed to relinquish their share in the suit property in his favour. 4. Being aggrieved, Ganapati preferred a Regular Appeal in R.A.No.74/1976. On 13.09.1977, a compromise was arrived between Ganapati and his other two brothers, Datta and Tukarama. In terms of which, while acknowledging the loan lent by Ganapati, the said Datta and Tukaram purportedly agreed to relinquish their share in the suit property in his favour. Subsequently, defendant No.1 herein Devidas son of Datta filed a suit in O.S.No.57/1982 seeking partition of the suit property. The said suit was dismissed by the Judgement and decree dated 14.07.1988. Being aggrieved, defendant No.1 filed R.A.No.56/1988, while daughter of Yeshwant filed R.A.No.59/1988. However, both appeals were dismissed as withdrawn. 5. Things stood thus, the present suit has been filed by Ganapati, alleging that he had let out a room in favour of defendant No.1-Devidas to look after the suit property. However, defendant No.1 with the aid of his other brothers allegedly broke open the lock and door of the suit property and occupied the entire premises. This gave rise to the cause of action for filing the present suit seeking for possession and mesne profit. 6. Written statements have been filed by defendant Nos.1 and 2, denying the plaint averments and challenging the very maintainability of the suit. It is contended that the plaintiff does not have any legal possession or ownership of the suit property and the title to the property has never been transferred to the plaintiff under the law. As such, the plaintiff cannot claim any right, title and interest or possession over the suit property. It is further contended that the suit property was standing in the name of propositus Dulba and only recently the plaintiff had obtained mutation of his name without having title over the suit property. The description of the property provided in the plaint is also denied. It is contended that defendant No.1 was born in the house described in the suit property and has been leaving therein ever since, along with his family consisting of his son, wife and daughter. The defendant’s father Datta, passed away in the very same house where he had lived since his birth. 7. The suit property, being ancestral house, has been inherited by the defendants in their own right upon the demise of their grandfather and father, respectively. The defendant’s father Datta, passed away in the very same house where he had lived since his birth. 7. The suit property, being ancestral house, has been inherited by the defendants in their own right upon the demise of their grandfather and father, respectively. The allegation of defendant No.1 was permitted to reside in a portion of the house and subsequently broke open the door of the house and illegally occupied the same is denied. The mutation entries, which the plaintiff relies upon to claim his title to the suit property are also denied. The filing of the suit in O.S.No.57/1982 as well as the regular appeal in R.A.No.56/1988 has been admitted. It is stated that the regular appeal was withdrawn upon the assurance made by the plaintiff not to disturb the possession and enjoyment of the suit property of defendant. It is also contended that the compromise that was entered between the parties in R.A.No.74/1976 did not include the house in question, as it was only in respect of land referred to therein. As such, the plaintiff cannot claim any title over the said house. Further, the said compromise also did not create any right, title or interest in respect of land mentioned therein inasmuch as Datta and Tukarama had only agreed to effect or to take necessary act to enter the name of the plaintiff in future. As such, no right, title or interest was created in favour of the plaintiff pursuant to the said document. Hence, sought for dismissal of the suit. 8. Defendant No.2 filed a written statement denying the averments made in the plaint and also denying the averments that the suit in O.S.No.57/1982 was dismissed holding the suit property not to be the joint family property. It is contended that the judgment and decree in RA No.74/1976 was not binding on defendant No.2 and the principle of res-judicata or the estoppel or any other bar was not applicable to the defendant No.2. Hence, sought for dismissal of the suit. 9. Based on the pleadings of the parties, the Trial Court framed the following issues and additional issues: “1. Whether the plaintiff proves that defendants are trespassers and are in unlawful possession of the suit properties since 1982? 2. Whether the plaintiff proves that Judgment and Decree Court, Karwar acts as resjudicata against the defendants to claim any right over the suit properties? 3. Whether the plaintiff proves that defendants are trespassers and are in unlawful possession of the suit properties since 1982? 2. Whether the plaintiff proves that Judgment and Decree Court, Karwar acts as resjudicata against the defendants to claim any right over the suit properties? 3. Whether the plaintiff proves that by virtue of Judgment and Decree in R.A.74/1976, defendants are estopped from contending that the suit properties are Joint Family properties? 4. Whether the defendant No.2 proves that he has perfected his title over the suit house by way of adverse possession? 5. Whether the plaintiff proves that he is entitle for monthly mesne profits from the defendants for their unlawful enjoyment of the suit properties and unjust enrichment the reform? 6. If so, at what rate? 7. Whether the plaintiff proves that defendants are liable to evicted from the suit properties and vacant possession is to be handed over to him? 8. To what reliefs the parties are entitled for? 9. What order and decree? Additional Issues 1. Whether the defendant 1 proves that the properties involved in the suit are worth more than Rs.50,000-00 and hence, this court has no pecuniary – jurisdiction to try the suit? 2. Whether the plaintiff proves that he is the owner of the suit land and suit house, bearing Karwar Muncipal House No.1922? 3. Whether defendant 1 proves that he has got possessory title and legal right over the suit lands, and suit house as alleged? 4. Whether the defendant 1 proves that suit is barred by law of limitation? 5. Whether the defendant 1 proves that he has perfected his title over the suit lands and the suit house by way of adverse possession, as pleaded in para 8 of his W.S.alternative? 6. Whether the plaintiff proves the cause of action as alleged? 7. Whether Defendant No.1 proves that as plaintiff has no legal possession and absolute title over the suit property, the suit is not maintainable?” 10. Plaintiff examined himself as PW.1 and another witness as PW.2 and exhibited 26 documents marked as Ex.P.1 to Ex.P.26. Defendant No.1 examined himself as DW.1 and another witness as DW.2 and exhibited 6 documents marked Ex.D.1 to Ex.D6. Plaintiff examined himself as PW.1 and another witness as PW.2 and exhibited 26 documents marked as Ex.P.1 to Ex.P.26. Defendant No.1 examined himself as DW.1 and another witness as DW.2 and exhibited 6 documents marked Ex.D.1 to Ex.D6. The Trial Court on appreciation of the evidence and contention of the parties, answered issues Nos.1, 2, 3, 5, 7 and additional issue Nos.2 and 6 in the affirmative and additional issue Nos.1, 3, 4 and 7 in the negative and decreed the suit directing the defendants to handover the possession of the suit property including the vacant possession of the house with a direction for a separate enquiry for mesne profit under Order 20 Rule 12. 11. Being aggrieved, defendants No.1 and 2 filed the Regular Appeal in R.A.No.52/2004. Considering the grounds urged, the First Appellate Court framed the following points for consideration: “ 1. Whether the plaintiff proves his title to the suit property? 2. Whether the plaintiff proves that the defendants are in unauthorised possession of the suit property? 3. Are the Judgment and Decree in R.A.No.74/76 on the file the Civil Judge, Karwar acts are resjudicata against the defendants. 4. Are the defendants estopped from contending that the suit properties are the joint family properties in view of the Judgment and Decree in R.A.No.74/76? 5. Is the plaintiff entitled for possession of the suit property? 6. Is the plaintiff entitled for mesne profits? If so how? 7. Whether the defendant proves that the valuation of the suit property is not correct and the Court has no pecuniary jurisdiction to try the same? 8. Is interference to the findings of the trial Court necessary? 9. Whether the Applicants was prevented from sufficient cause from producing the documents now sought to be produced are the documents not within his reach despite due diligence? 10. Is the Applicant entitled for an order to deposit the money in I.A.No.4 with interest? 11. What orders?” 12. On re-appreciation of evidence, the First Appellate Court answered point Nos.1, 2, 3, 4, 5, 6, 7, 9 and 10 in the negative and point No.8 in the affirmative. Consequently, allowed the appeal and set aside the judgement and decree passed by the Trial Court, as against which the present appeal is filed by the plaintiff since deceased by his legal representatives. 13. Consequently, allowed the appeal and set aside the judgement and decree passed by the Trial Court, as against which the present appeal is filed by the plaintiff since deceased by his legal representatives. 13. This Court by order dated 26.08.2010 admitted the appeal to consider the following substantial questions of law: “Substantial questions of law: 1. Whether the lower Appellate Court has committed an error while reversing the judgment of the trial Court when the trial Court had appreciated the very same evidence available on record and had come to the conclusion that the suit is to be decreed? 2. Whether the lower Appellate Court is justified in law in coming to its conclusion that the principle of res judicata would not apply in the present facts of the case?” 14. Learned counsel for the appellants taking this Court extensively through the reasoning and conclusion arrived at by the First Appellate Court submitted that admittedly the compromise had been entered into between Datta the father of defendants No.1 to 6 and Tukaram - defendant No.13 which has attained finality as no one has questioned or challenged the same on any count whatsoever. He submits that based on the said compromise name of the plaintiff was mutated in the revenue records as per ME No.6230 of Kodibag village. That subsequent suit filed by defendant No.1 in O.S.No.57/1982 having been dismissed holding the suit property not being the joint family property and the appeals filed in R.A.No.56/1988 and R.A.No.59/1988 having been withdrawn, it was not open for the defendants to contend to the contrary. That the Trial Court has appreciated these aspects of the matter and held that the plaintiff was the absolute owner of the suit property and that the judgement and decree passed in R.A.No.74/1976 acted as res-judicata giving finality to the claims of the parties which could not be re-agitated. 15. He further submits, the First Appellate Court on the contrary went into unnecessary details to ascertain the applicability of the principle of res-judicata ignoring the fact that the very compromise decree was put to question in subsequent suit in O.S.No.57/1982 and the same having been held in favour of the plaintiff, the First Appellate Court ought to have held the plaintiff to be the absolute owner of the suit property and dismissed the appeal. Hence, he submits the First Appellate Court erred in not appreciating the evidence in proper perspective and in holding that the principle of res-judicata would not apply to the facts and circumstances of this case. 16. He relies upon the judgement of the Apex Court in the case of Shankar Sitaram Sontakke and Another vs. Balkrishna Sitaram Sontakke and Others reported in AIR 1954 SC 352 to support his contention that a consent decree is binding upon the parties thereto and since there is no allegation of fraud and misrepresentation by any of the parties, the decree passed thereon had binding force of res-judicata and the defendants were estopped from re-agitating the issue. Hence, seeks for allowing of the appeal by answering the substantial questions of law accordingly. 17. Per contra, learned counsel appearing for the defendants at the outset referring to the very compromise decree that was passed in R.A.No.74/1976, submits that the compromise decree did not create any right, title and interest in the plaintiff as sought to be made out. He submits that the very reading of the terms of the compromise also indicate that the said Dutta, Tukaram, and Ganapati had apparently mutually agreed the mode of repayment of the loan amount and the compromise was only in furtherance of the said understanding which they had arrived at. All that Datta and Tukaram had agreed under the compromise was only to take necessary steps and action in making over the subject property in the name of the plaintiff. He submits no further action was taken by the plaintiff pursuant to the terms of the compromise. 18. Referring to the reasoning assigned by the First Appellate Court while answering point Nos.1, 2, 3 and 4 at paragraph Nos.13, 14 and 15 learned counsel pointed out that the compromise was merely a contract that had been entered into between the parties to the said compromise and the same cannot be construed to have created any right in favour of the plaintiff. Hence, he submits in the absence of plaintiff prima facie establishing his title over the suit property, cannot claim possession. 19. He submits in that view of the matter and in the absence of any finality having been arrived on the said compromise, the question of applicability of principles of res-judicata would not arise. Hence, he submits in the absence of plaintiff prima facie establishing his title over the suit property, cannot claim possession. 19. He submits in that view of the matter and in the absence of any finality having been arrived on the said compromise, the question of applicability of principles of res-judicata would not arise. He submits these aspects of the matter have never been subject matter of any of the earlier suits therefore the principles of res-judicata would not apply as rightly taken note of by the First Appellate Court. Hence, seeks for dismissal of the appeal answering the substantial question of law in the affirmative. 20. Heard. Perused the records. 21. The facts having been narrated above do not require any reiteration. The only basis on which the plaintiff has filed the present suit is the compromise dated 13.09.1977 which was entered into between the plaintiff and his two brothers Datta and Tukaram who are the fathers of defendants No.1 to 6 and 13 respectively. Terms of the said compromise are extracted hereunder for immediate perusal: 22. A bare perusal of the aforesaid terms of the compromise would indicate that the said three brothers had confirmed and acknowledged payment and receipt of Rs.1,300/- and they not being able to repay the same had mutually agreed and had arrived at an arrangement in terms of which Datta and Tukaram had undertaken to makeover/convey their shares in the property in favour of plaintiff - Ganapati. Nothing is brought on record as rightly taken note of by the First Appellate Court as to any further steps having been taken by the Ganapati - plaintiff in furtherance to the said compromise decree in obtaining share, right, title and interest of said Datta and Tukaram conveyed in his favour in a manner known to law. 23. Terms of the said compromise have remained as an agreement and nothing more. In other words, the contract being executory in nature, it has neither created any right, title and interest in favour of the plaintiff, nor extinguished any right, title and interest of the said Datta and Tukaram, in the suit property. 24. Based on the said compromise the plaintiff has obtained the mutation entry vide ME No.6230 of Kodibag village which is now sought to be relied upon as title to the property. 24. Based on the said compromise the plaintiff has obtained the mutation entry vide ME No.6230 of Kodibag village which is now sought to be relied upon as title to the property. Needless to state that the entry in the revenue records cannot be equated to a title to the property. Assuming the entries were made the same carry rebuttable presumption which in the instant case have been proved to the contrary. 25. The claim of the plaintiff being in settled possession also cannot be countenanced inasmuch as defendant No.1 filed the suit in O.S.No.57/1982 barely within 5 years from the date of the compromise. Further it is the case of the plaintiff himself that he had purportedly authorised/permitted defendant No.1 to occupy portion of the suit property as a caretaker and that he had allegedly broke open the property and occupied it. Nothing has been brought on record to discredit the claim of defendant being in possession of the suit property ever since the date of his birth. The First Appellate Court has also found the date of alleged breaking open of the suit property by the defendants being inconsistent and contrary to the facts of the case. 26. Plaintiff thus has neither established his title nor his possession over the suit property. As such a suit for possession and mesne profit cannot be maintained. The aforesaid two aspects of the matter being the elementary requirement for a suit for possession, further probe into the matter is unnecessary. 27. Though the First Appellate Court has adverted into detail with regard to the question of applicability of principles of res-judicata to the facts of the instant case to hold that the same were not applicable, no error or illegality can be found with the reasoning and conclusion arrived at by the First Appellate court on the said aspect of the matter. 28. The reliance placed by counsel for the appellants on the judgement of Apex Court in the case of Shankar Sitaram Sontakke supra is inapplicable to the instant case. In that, as noted above the compromise that was entered into between Datta and Tukaram on the one hand and Ganapati on the other in R.A.No.74/1976 did not create any absolute right, title and interest in favour of plaintiff- Ganapati. In that, as noted above the compromise that was entered into between Datta and Tukaram on the one hand and Ganapati on the other in R.A.No.74/1976 did not create any absolute right, title and interest in favour of plaintiff- Ganapati. As such, the said compromise cannot be read and interpreted to have created any binding force on the legal representatives of the executants estopping them from questioning the right, title and interest of the plaintiff over the suit property. Therefore, reliance so placed on the aforesaid judgment is therefore of no avail. 29. For the aforesaid reasons and analysis this Court do not find any ground to interfere with the judgement in decree passed by the First Appellate Court. The judgment passed by the First Appellate Court reversing the finding and conclusion arrived by the Trial Court cannot be found fault with. Substantial questions of law are answered accordingly. 30. Accordingly, the appeal is dismissed.