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Judgment
Huluvadi G. Ramesh, J.—The second appeal is by the Plaintiff challenging the order of the Civil Judge (Sr. Dvn), Arsikere reversing the decree of the trial court holding that the Defendants are in continuous possession, however having examined the document as to title. According to the Plaintiff, it is based on Ex.PI - rent agreement said to have been executed by one Abdul Shukkursab and since 1940, the document stands in the name of the vendor of the Plaintiffs father. However, according to the Defendants, there is a grant in favour of Abdul Shukkursab way back in the year 1938. The son of the Plaintiff was a Municipal Officer at Banawara and there, he made manipulation. As such, although the lower appellate court looked into some of the documents, it has not formed an opinion as to exactly whether the documents confer title on the Plaintiff or the Defendants. Throughout there is said to be a sale deed executed way back in the year 1973 in favour of the Plaintiff and also khandayam is paid.
According to the Plaintiff there is attornment of Ex.Pl and P3 which is said to be in the signature of Abdul Shukur Sab/Defendant. In fact, the lower appellate court appears to have negated the version of the trial court. The trial court has compared the signatures on the vakalath and on other documents and opined that there is attornment by Defendants father Abdul Shukkur Sab. However, when the lower appellate court reversed the finding of the trial court and the matter was remanded, in the first round of orders passed by this Court, although it is specifically pointed out and also having raised the substantial question of law for consideration as-
Whether the lower appellate court is justified in forming opinion of its own about the genuineness of the signature of the deceased Sukur Sab in Exs.Pl and P3 without appreciating the oral evidence adduced by the Defendants, and without referring the same for the opinion of the expert?
Whether the lower appellate court is justified in setting aside the judgment and decree of the trial court, though the findings of the trial court were based on oral evidence, and its appraisal of evidence is not materially erroneous?
The lower appellate court except having held that the Defendants are in possession, did not examine and answer the points as regards Ex.Pl and P3 said to be signed by Abdul Shukkur Sab as that of Shukkur Sab or it is concocted. As such, ultimately, the finding/question has not been finally adjudicated.
In that of the matter, the impugned order of the lower appellate court needs reconsideration on the substantial questions of law raised with regard to the veracity of Ex.Pl & P3 executed by Abdul Shukkur Sab so that that would have a bearing on the decision of the case not only on the point of possession but it may also throw light on the ownership.
In the circumstances, for this purpose, by setting aside the order passed by the lower appellate court, matter is remitted to the lower appellate court to dispose of the case in accordance with law after affording opportunity to both the parties. Registry is directed to send the entire records forthwith. The lower appellate court to dispose of the matter within three months from the date of receipt of the records/order.
Appeal is disposed of.