AVALAPPA S/O KONDAPPA vs C NARASIMHA REDDY S/O CHIKKANARAYANAPPA
- Court
- Karnataka High Court
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RSA No. 203 of 2010
C/W RSA.CROB No. 7 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
TH
DATED THIS THE 10 DAY OF JULY, 2026
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.203 OF 2010 (SP)
C/W
RSA CROSS OBJECTION NO.7 OF 2013
IN RSA NO.203/2010:
BETWEEN:
1.
AVALAPPA
S/O KONDAPPA
SINCE DECEASED BY HIS LRS
1(a) GANGAMMA
W/O AVALAPPA
SINCE DECEASED BY HER LRS
APPELLANT NO.1(b) TO 1(e) IS THE LRS
OF APPELLANT No. 1(a) WHO ARE
ALREADY ON RECORD.
1(b) RAMA REDDY
S/O LATE AVALAPPA
AGED ABOUT 50 YEARS
1(c) ANANDA REDDY
RAMAREDDY
S/O LATE AVALAPPA
AGED ABOUT 44 YEARS
1(a) TO 1(c) ARE THE
RESIDENTS OF KADABUR VILLAGE
D-PALYA HOBLI
GOWRIBIDANUR TALUK
CHIKKABALLAPUR DISTRICT-561206.
1(d) SMT. SHANTHAMMA
W/O NARASIMHAREDDY
Digitally signed
by DEVIKA M
Location: HIGH
COURT OF
KARNATAKA
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RSA No. 203 of 2010
C/W RSA.CROB No. 7 of 2013
D/O LATE AVALAPPA
AGED ABOUT 52 YEARS
R/AT M. NAGENAHALLI
GOWRIBIDANUR TALUK
CHIKKABALLAPUR DISTRICT-561211.
1(e) SMT. RADHAMMA
W/O OBAREDDY
AGED ABOUT 40 YEARS
R/AT YELLODU NAGARAGERE HOBLI
GOWRIBIDANUR TALUK
CHIKKABALLAPUR DISTRICT-561228.
…APPELLANTS
(BY SRI M.R.DILIP, ADVOCATE FOR APPELLANT NO.1(a) to (e);
VIDE ORDER DATED 04.11.2024, APPELLANT NO.1(b to e) ARE
LRS OF DECEASED APPELLANT NO.1(a)
AND:
1. C. NARASIMHA REDDY
S/O CHIKKANARAYANAPPA
SINCE DECEASED BY HIS LRS
1(a) SMT. JAYALAKSHMAMMA
W/O NARASIMHAREDDY V.,
D/O LATE NARASIMHAREDDY C.,
AGED ABOUT 65 YEARS
R/AT KAMBALAHALLI
BALAREDDYHALLI
MAJARA, JARABANDAHALLI POST
MANCHENAHALLI HOBLI
GOURIBIDANUR TALUK
CHIKKABALLAPURA DISTRICT.
1(b) SMT. YESHODAMMA
W/O DODDABALAREDDY
D/O LATE NARASIMHAREDDY C.,
AGED ABOUT 63 YEARS
R/AT NAMAGONDLU VILLAGE AND POST
D-PALYA HOBLI
GOURIBIDANUR TALUK
CHIKKABALLAPURA DISTRICT.
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RSA No. 203 of 2010
C/W RSA.CROB No. 7 of 2013
1(c) SRI. ANANDA REDDY S.,
S/O SRINIVAS REDDYM &
SARASWATHAMMA N.,
AGED ABOUT 36 YEARS
R/AT MATHAKURU VILLAGE
KAKOLU POST
HESARGHATTA HOBLI
YELAHANKA TALUK
BENGALURU URBAN DISTRICT.
1(d) SRI. SAVITHRAMMA N.,
W/O RAMACHANDRA REDDY S.N.,
D/O NARASIMHAREDDY C.,
AGED ABOUT 58 YEARS
R/AT SINGANAYAKANAHALLI
VILLAGE AND POST
YELAHANKA HOBLI
YELAHANKA TALUK
BENGALURU URBAN DISTRICT.
1(e) SRI. SUJATHA N.,
W/O GOVINDAREDDY M.,
D/O NARASIMHAREDDY C.,
AGED ABOUT 55 YEARS
R/AT MATHAKURU VILLAGE
KAKOLU POST
HESARGHATTA HOBLI
YELAHANKA TALUK
BENGALURU URBAN DISTRICT.
1(f) SRI. BALAKRISHNA REDDY K.N.,
S/O NARASIMHAREDDY C.,
AGED ABOUT 52 YEARS
KADABURU VILLAGE AND POST
D-PALYA HOBLI
GOURIBIDANURU TALUK
CHIKKABALLAPURA DISTRICT.
1(g) SRI. MAHESHA N.,
S/O NARSIMHAREDDY C.,
AGED ABOUT 49 YEARS
KADABURU VILLAGE AND POST
D-PALYA HOBLI
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RSA No. 203 of 2010
C/W RSA.CROB No. 7 of 2013
GOURIBIDANURU TALUK
CHIKKABALLAPURA DISTRICT.
…RESPONDENTS
(BY SRI. K.N.NITISH, ADVOCATE FOR
SRI. K.V. NARASIMHAN, ADVOCATE FOR R1(a to g))
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 31.10.2009
PASSED IN R.A.NO.208/2003 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT, CHIKKABALLAPUR, PARTLY
ALLOWING THE APPEAL AND MODIFYING THE JUDGEMENT AND
DECREE DATED 29.11.2003 PASSED IN O.S.NO.352/1993 ON
THE FILE OF THE ADDL. CIVIL JUDGE (JR. DVN.) AND JMFC,
GOURIBIDANURU.
IN RSA CROB NO.7/2013:
BETWEEN:
1. SRI. C. NARASIMHA REDDY
S/O CHIKKANARAYANAPPA
DEAD BY LRS
1(a) SMT. JAYALAKSHMAMMA
W/O NARASIMHAREDDY V.,
D/O LATE NARASIMHAREDDY C.,
AGED ABOUT 65 YEARS
R/AT KAMBALAHALLI
BALAREDDYHALLI
MAJARA, JARABANDAHALLI POST
MANCHENAHALLI HOBLI
GOURIBIDANUR TALUK
CHIKKABALLAPURA DISTRICT.
1(b) SMT. YESHODAMMA
W/O DODDABALAREDDY
D/O LATE NARASIMHAREDDY C.,
AGED ABOUT 63 YEARS
R/AT NAMAGONDLU VILLAGE AND POST
D-PALYA HOBLI
GOURIBIDANUR TALUK
CHIKKABALLAPURA DISTRICT.
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RSA No. 203 of 2010
C/W RSA.CROB No. 7 of 2013
1(c) SRI. ANANDA REDDY S.,
S/O SRINIVAS REDDYM &
SARASWATHAMMA N.,
AGED ABOUT 36 YEARS
R/AT MATHAKURU VILLAGE
KAKOLU POST
HESARGHATTA HOBLI
YELAHANKA TALUK
BENGALURU URBAN DISTRICT.
1(d) SRI. SAVITHRAMMA N.,
W/O RAMACHANDRA REDDY S.N.,
D/O NARASIMHAREDDY C.,
AGED ABOUT 58 YEARS
R/AT SINGANAYAKANAHALLI
VILLAGE AND POST
YELAHANKA HOBLI
YELAHANKA TALUK
BENGALURU URBAN DISTRICT.
1(e) SRI. SUJATHA N.,
W/O GOVINDAREDDY M.,
D/O NARASIMHAREDDY C.,
AGED ABOUT 55 YEARS
R/AT MATHAKURU VILLAGE
KAKOLU POST
HESARGHATTA HOBLI
YELAHANKA TALUK
BENGALURU URBAN DISTRICT.
1(f) SRI. BALAKRISHNA REDDY K.N.,
S/O NARASIMHAREDDY C.,
AGED ABOUT 52 YEARS
KADABURU VILLAGE AND POST
D-PALYA HOBLI
GOURIBIDANURU TALUK
CHIKKABALLAPURA DISTRICT.
1(g) SRI. MAHESHA N.,
S/O NARSIMHAREDDY C.,
AGED ABOUT 49 YEARS
KADABURU VILLAGE AND POST
D-PALYA HOBLI
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RSA No. 203 of 2010
C/W RSA.CROB No. 7 of 2013
GOURIBIDANURU TALUK
CHIKKABALLAPURA DISTRICT.
...CROSS OBJECTORS
(BY SRI. K.N.NITISH, ADVOCATE FOR
LRS OF CROSS OBJECTOR NO.1(a to g))
AND:
1. SRI. AVALAPPA
S/O KONDAPPA
SINCE DEAD BY LRS.
1(a) GANGAMMA
W/O AVALAPPA
SINCE DECEASED BY HER LRS
REPRESENTED BY RESPONDENT NO.1(b) to 1(e).
1(b) RAMA REDDY
S/O LATE AVALAPPA
AGED ABOUT 50 YEARS
1(c) ANANDA REDDY
RAMAREDDY
S/O LATE AVALAPPA
AGED ABOUT 44 YEARS
1(a) TO 1(c) ARE
R/O KADABUR VILLAGE
D-PALYA HOBLI
GOWRIBIDANUR TALUK
CHIKKABALLAPUR DISTRICT-561206.
1(d) SMT. SHANTHAMMA
W/O NARASIMHAREDDY
D/O LATE AVALAPPA
AGED ABOUT 52 YEARS
R/AT M. NAGENAHALLI
GOWRIBIDANUR TALUK
CHIKKABALLAPUR DISTRICT-561211.
1(e) SMT. RADHAMMA
W/O OBAREDDY
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RSA No. 203 of 2010
C/W RSA.CROB No. 7 of 2013
AGED ABOUT 40 YEARS
R/AT YELLODU NAGARAGERE HOBLI
GOWRIBIDANUR TALUK
CHIKKABALLAPUR DISTRICT-561228.
...RESPONDENTS
(BY SRI. M.R.DILIP, ADVOCATE FOR R1(b to e);
VIDE ORDER DATED 04.11.2024,
R1(b to e) ARE LRS OF DECEASED R1(a))
THIS RSA CROSS OBJECTION IN RSA IS FILED UNDER
ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGEMENT AND
DECREE DATED 31.10.2009 PASSED IN R.A.NO.208/2003 ON
THE FILE OF THE PRESIDING OFFICER, FAST TRACK, COURT
CHICKBALLAPUR, PARTLY ALLOWING THE APPEAL FILED
AGAINST THE JUDGEMENT AND DECREE DATED 29.11.2003
PASSED IN O.S.NO.352/1993 ON THE FILE OF THE
(MUNSIFF) ADDITIONAL CIVIL JUDGE (JR.DN.) AT
GOWRIBIDANUR.
THIS RSA AND RSA CROSS OBJECTION HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 23.06.2026 THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
R.S.A.No.203/2010 connected with R.S.A.
Crob.No.7/2013 are filed against the judgment and decree
passed by the trial Court wherein the trial Court granted
the relief of specific performance in favour of plaintiff and
the same is reversed in Regular Appeal directing the
plaintiff is entitled for refund of sale consideration with
interest.
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C/W RSA.CROB No. 7 of 2013
2. In RSA No.203/2010, the appellants prayed this
Court to set aside the judgment of the appellate Court in
R.A.No.208/2003 and restore the judgment and decree of
the trial Court. On the other hand, in cross objection,
praying this Court to set aside the conclusion of both the
Courts that there was an agreement and also to dismiss
the suit in setting aside the order of the appellate Court,
ordering for refund of alleged sale consideration with
interest.
3. For the sake of convenience, the parties are
referred as per their ranking before the trial Court.
4. The factual matrix of the case of plaintiff before
the trial Court when seeking the relief of specific
performance are that the plaintiff is in possession of the
suit schedule property under the agreement dated
09.03.1984 executed by the original owner Narasamma
and consequent upon the sale agreement, he is in
possession of the same. He also contends that defendant
has wrongfully purchased the property sold to him under
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C/W RSA.CROB No. 7 of 2013
the sale deed dated 12.8.1987, subsequent to this
agreement and the defendant appeared and filed written
statement denying the very execution of agreement either
by the original owner or subsequently by the defendant.
The said suit is also not maintainable. As such, the trial
Court taking into note of the pleading of the parties
framed the following issues which reads as under:
a. Whether the plaintiff proves that he is in
possession of suit property under agreement
dated 09.03.84 executed by Narasamma and that
she is in possession of the same?
b. Whether the plaintiff proves that defendant has
wrongly purchased the property sold to him
under sale deed dated 12.08.87 subsequently?
c. Whether the plaintiff is entitled for the relief of
specific performance from the defendant as
claimed?
d. Whether the suit is maintainable in the eye of
law?
e. What order or decree?
5. The plaintiff in order to prove the case,
examined all three witnesses as P.Ws.1 to 3 including the
witness of agreement and scribe. The defendant also
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C/W RSA.CROB No. 7 of 2013
examined four witnesses as D.W.s.1 to 4 and got marked
three documents as Exs.D1 to D3. The trial Court having
considered the material on record, comes to the conclusion
that there was an agreement of sale and the entire sale
consideration was paid and there is readiness and willing
to perform the part of contract and granted the relief of
specific performance in favour of plaintiff. The same is
challenged before the appellate Court in RA No208/2003.
In the appeal, it is categorically contended that the
agreement is not proved in accordance with law and suit
itself is not maintainable as there was a prohibition under
the Karnataka Prevention of Fragmentation and
Consolidation of Holdings Act, 1966 (hereinafter referred
to as ‘Fragmentation Act’ for short) was in force as on the
date of agreement. When the plaintiff was not in
possession, he ought to have sought for relief of
possession, but the same is not done.
6. He also contends that the very agreement at
Ex.P1 was not executed and the trial Court has committed
an error. It is contended in the appeal by the plaintiff
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C/W RSA.CROB No. 7 of 2013
that D.W.2 and D.W.3 have partially supported the plaintiff
with regard to the execution of the agreement and the
Court has to take note of conduct of the defendant. They
have gone to the extent of denying the very evidence and
every document. When the Court comes to the
conclusion that the agreement is executed and the same is
enforceable under the law in view of repealing of
Fragmentation Act. The appellate Court having taken
note of the grounds which have been urged by both the
counsels, formulated the following points for
consideration:
a. Whether the plaintiff proves that the defendant
has executed sale agreement dated 15.02.1988?
b. Whether the plaintiff proves that he is in
possession of the suit property since 1984?
c. Whether the plaintiff proves his readiness and
willingness to perform his part of contract?
d. Whether I.A.No. 2 is fit to be allowed?
e. What suit is maintainable in view of decision
reported in ILR 2003, Karnataka Page 4535?
f. Whether the judgment and decree requires
interference?
g. What order?
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7. The appellate Court having reassessed both
oral and documentary evidence, comes to a conclusion
that plaintiff has proved that the defendant has executed
the sale agreement dated 15.06.1988 and also comes to
the conclusion that plaintiff is not in possession of the suit
schedule property. The appellate Court also comes to the
conclusion that plaintiff has proved his readiness and
willingness to perform his part of contract and also suit is
maintainable. But with regard to refund of amount, the
appellate Court comes to the conclusion that there was a
prohibition of sale of property and no decree could have
been passed by the trial Court as the agreement entered
between the parties was unenforceable in law, even as on
the date of agreement there was a prohibition.
8. The appellate Court by relying upon the
decisions rendered by this Court, comes to conclusion that
the plaintiff is entitled to get back earnest money paid by
him even in the absence of pleading in the plaint in that
regard and comes to the conclusion that the suit is
maintainable and the plaintiff is not entitled for the relief
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C/W RSA.CROB No. 7 of 2013
of specific performance. Being aggrieved by the divergent
finding, the counsel who appears for the plaintiff in his
argument would vehemently contend that the Courts
below have concurrently recorded its finding that the
agreement of sale executed by the defendant is proper
and also the entire sale consideration was paid by the
plaintiff and these findings have attained finality and are
not liable to be reopened in this second appeal.
9. The only question arises before this Court is
that whether specific performance ought to have been
granted or not? The appellate Court committed an error
in refusing the specific performance and directing refund
of sale consideration merely because at the relevant point
of time, the Fragmentation Act was in force. The
agreement itself was not prohibited by law and at best,
the execution and registration of the sale deed should
postpone till removal of the statutory bar. The counsel
would contend that the statutory impediment which
existed on the date of agreement has ceased to exist,
owing to repeal of the Fragmentation Act. Consequently,
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RSA No. 203 of 2010
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no legal obstacle is present whatsoever for execution of
the sale deed. Further, the counsel would contend that
when both the Courts come to the conclusion that plaintiff
is always ready and willing to perform his part of contract
and even immediately after repealing of the Fragmentation
Act, he has filed the suit and sought for the relief of
specific performance. But the appellate Court committed
an error in coming to the conclusion that there cannot be
any specific performance. The relief granted by the Court
below effectively permits the respondent to retain the
benefit of appreciation in land value while depriving the
benefit of a fully performed contract. The defendant
cannot make any attempt to take advantage of revenue
and interest standing in his name and such a decision of
the appellate Court defeats the equity, justice and good
conscience. Once the agreement, consideration and
possession stand proved, the refund of money is not an
adequate remedy and the land is unique and monetary
compensation cannot substitute performance of the
contract. Therefore, the judgment of the appellate Court
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C/W RSA.CROB No. 7 of 2013
suffers from its erroneous approach and it warrants
interference by exercising the power under Section 100 of
Code of Civil Procedure.
10. The counsel relies upon the judgment of the
Hon'ble Supreme Court reported in the case of
Munisharmappa versus M. Ramareddy and others,
passed in Civil Appeal No. 10327 of 2011 dated
02.11.2023 and contend that facts are remarkably similar
and there was an agreement and entire sale consideration
was paid and possession was delivered and the sale was
postponed because of prohibition under the Fragmentation
Act and later refused the execution. The Apex Court
comes to the conclusion in paragraph No.10 of its
judgment that agreement of sale is not a conveyance; it
does not transfer ownership rights or confers any title.
What is prohibited or barred under the fragmentation Act
was the lease//sale/conveyance or transfer of right.
Therefore, the agreement to sell cannot be said to be
barred under the Fragmentation Act. The appellant filed
the suit for specific performance after the repeal of
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Fragmentation Act. But suit could have been decreed
without there being any violation to the law once the
Fragmentation Act itself had been repealed in February,
1991. Further, the High Court did not hold that suit was
barred by Section 5 of the Limitation Act. The First Appeal
Court has considered this aspect and having decided the
said issue in favour of the appellant, we need not go into
that question at this stage. What is further noticeable is
that the respondents received a full consideration and had
also transferred the possession of the property in question
and as such other defences may not be available to them.
Even the issue of readiness and willingness on the part of
the appellant would not be relevant.
11. The counsel also relied upon the judgment
dated 04.11.2010 of the Hon'ble Apex Court in the case of
Smt. Parvathamma and Ors. V. Smt. Uma and Ors.,
passed in R.S.A.No.1502/2008 reportted in AIR
2011 Karnataka 58 , would vehemently contend that the
agreement itself is provided that sale deed could be
executed after the repeal of the Fragmentation Act. The
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High Court recognized that repeal removed the legal
obstacle and upheld the enforceability of the agreement,
where parties consciously postponed execution till repeal
of the Fragmentation Act comes, specific performance
survives.
12. The counsel also relies upon the judgment of
the Hon'ble Supreme Court in the case of Sughar Singh
versus Hariprasad (Dead) Through LRs. & Ors.,
reported in (2021) 10 SCC 312, wherein the Supreme
Court held that specific performance is the rule and refusal
is an exception.
13. Per contra, the counsel appearing for the
respondent in his argument would vehemently contend
that the land in question is only 5 guntas of land and at
the first instance it was pleaded that there was an
agreement dated 09.03.1984 and the same was not
proved. The counsel would also submit that the both the
agreements have denied. Further, the counsel also
brought to notice of this Court O.S.No.8/1983 was filed for
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the relief of permanent injunction and not set up the
defence of agreement of 1988. The counsel would also
submit that the trial Court has given the finding in
O.S.No.8/1993 that possession is with the defendant and
not accepted the provisions under Section 53A of the
Specific Performance Act,1877 and the possession has
already been delivered in terms of the agreement. The
appeal filed against O.S No.8/1993 was dismissed both in
respect of delivery of possession has attained finality and
the possession was not delivered. Further, the counsel
would submit that finding of the Courts below was not
proved. But both the Courts have committed an error in
coming to the conclusion that agreement was proved and
it was executed. Though the plaintiff relied upon the
evidence of P.W.2 and P.W.3, i.e. who are witness and
scribe, the defendant examined two witnesses as D.W.2
and D.W.3 on behalf of the defendant. But D.W.2
categorically admits that plaintiff is not in possession.
Further, the counsel would submit that plaint schedule
does not tally with the sketch and possession as sought for
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and already held that the plaintiff is not in possession and
house of the plaintiff is not situated there within 5 guntas
of land and the same is only near the land of the plaintiff,
but not adjacent to the property which was owned by the
plaintiff.
14. Further, the counsel would contend that the
principles laid down in the judgments relied upon by the
counsel appearing for the appellant are not applicable to
the case on hand and that suit was filed after 2 years of
repealing of the Act. When possession was not proved,
the question of granting the relief of specific performance
does not arise.
15. The counsel in support of his argument relied
upon the judgments of the Apex Court in the case of Smt.
Khamarunnisa vs. Mudalappa reported in ILR 2003
KAR 4535 and in the case of Smt. Parvathamma and
Ors. V. Smt. Uma and Ors., passed in
R.S.A.No.1502/2008 reportted in AIR 2011
Karnataka 58, the very same judgment is also relied
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upon by the counsel appearing for the appellant. He
further relied upon the judgment of this Court in the case
of Nagamma and Ors. vs. Syed Shafiulla reported in
Manu/KA/4373/2000 and also the judgment of the
Hon'ble Supreme Court of India in the case of
Smt. Naraynanamma & Anr. vs. Sri. Govindappa &
Ors. etc., in Civil Appeal Nos.7630-7631/2019 and
contend that when there was a restriction of selling of the
property and Fragmentation Act was in force, which
violates Section 23 of the Indian Contract Act, 1872.
Hence, the counsel would vehemently contend that there
cannot be any relief of specific performance.
16. Further, the counsel also relies upon the
judgment of this Court in the case of V.S. Munirathnam
vs. P. Sundaram and Ors., reported in ILR 2004
KARNATAKA 2328 , and brought to notice of this Court
the discussion made in paragraph No.15, wherein it is held
that the suit is barred by limitation, but on the ground of
latches, the plaintiff would not be entitled to the relief of
specific performance. The counsel also relied upon the
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judgment of the Division Bench of this Court passed in
RFA No.245/2008 c/w. R.F.A.Crob.No.29/2008 in
the case of Sri. C Sadashiva Reddy and
Smt.Rajamma and Others decided on 12.06.2024 ,
wherein the suit for specific performance was filed and the
appellate Court by considering the material on record,
made a discussion with regard to specific performance.
In paragraph No.45, this Court has discussed with regard
to readiness and willingness and in paragraph No.46, it is
stated that there is no statutory requirement for the
plaintiff to give a notice for completion of sale transaction
prior to filing of the suit for specific performance and if the
plaintiff has repeatedly called upon the defendants to
complete the sale transaction, it is relevant to note that
the Court while adjudicating upon the willingness of the
plaintiff is required to consider the various factors and the
non-issuance of notice for the plaintiff requiring and calling
upon defendant to complete the said transaction is a
material aspect which is required to be considered.
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17. The counsel also relies upon the judgment of
the Hon'ble Supreme Court of India in the case of Major
Gen. Darshan Singh (D) by legal representatives and
Another vs. Brij Bhushan Chaudhary reported in
(2024)3 Supreme Court Cases, 489, wherein the
discussion is made in respect of Section 20 of Specific
Performance Act- Entitlement to relief- conduct of plaintiff-
plaintiffs made false statements in plaint, which were very
material.
18. The counsel also relies upon the judgment of
the Apex Court in the case of Hari Shankar Rastogi vs.
Sham Manohar and Others reported in (2005) 3
Supreme Court Cases 761 , held that cross objections in
second appeal-Whether maintainable, when appeal is
withdrawn- cross objections are like an appeal- Even when
appeal is withdrawn or dismissed, cross objections can still
be heard and determined.
19. In reply, the counsel appearing for the plaintiff
would vehemently contend that in the mutation entry, it is
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very clear that even prior to the purchase of the property
there was an agreement and immediately when the sale
was made in favour of the defendant and the sale was
objected by the plaintiff in respect of 5 guntas of land. In
the mutation entry, a shara was made in the respect of 5
guntas of land and the same was not challenged in respect
of the entry of 5 guntas. The counsel would contend that
plaintiff is in possession even prior to the purchase by the
defendant. However, the trial Court only granted the
decree based on the RTC prevailing in O.S.No.8/1993 and
the same is confirmed in the appeal and it is not barred by
limitation.
20. Having heard the counsel appeal for the
appellant and also cross objectors, this Court has to take
note of the substantive questions of law framed by this
Court at the time of admission of the R.S.A. vide order
dated 29.09.2010, the following substantive question of
law are framed:
a. Whether the learned appellate judge was
right and just in setting aside the judgment
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and decree passed by the trial Court
through the trial Court very clearly held
that the plaintiff was put in possession and
enjoyment of the land in question of the
date of sale agreement by the respondent
after accepting entire consideration
amount?
b. Whether the appellate judge is justified in
stating that the plaintiff is entitled for only
the consideration amount along with the
interest from the date of sale agreement,
even though he has established his
possession over the suit schedule property
from the year 1984 i.e., even before filing
the suit for specific performance?
c. Whether the appellate judge is justified in
holding that the judgment and decree
passed by the trial Court is not in
accordance with law, though the appellate
Court itself has held all issues in affirmative
except only one issue which was in
negative regarding possession?
21. Having considered the grounds which have
been urged in both R.S.A. and Cross Objection and the
contentions of the plaintiff that the appellate Court
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committed an error in reversing the judgment of the trial
Court only on the ground that there was a Fragmentation
Act and also directed to repay the advance amount with
interest, with regard to this, an observation is made in
paragraph No.24 that in fact a direct decision on the point
is relied upon by the appellant and as per the same, no
decree could have been passed by the court as the
agreement enter into between the parties was
unenforceable in law. Even as on the date of agreement
and it was pertaining to the provisions of Prevention of
Fragmentation and Consolidation of Holding Act. Having
considered the material on record, the trial Court comes to
the conclusion that plaintiff is entitled for relief of specific
performance, as the agreement is proved. It has to be
noted that the plaintiff examined two witnesses as P.W.2
and P.W.,3 who are witness and scribe. On the other
hand, though the defendant examined D.W.2 and D.W.3
who are also witnesses and their evidence is also very
clear that agreement was executed and the witnesses who
are examined and their evidence not support the case of
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the defendant. It has to be noted that both the Courts
come to the conclusion that there was an agreement and
also entire full sale consideration was paid. This was the
agreement of the year 1988 and there is a force in the
contention of the counsel appearing for the appellant that
once the Court comes to the conclusion that the
agreement was proved and entire sale consideration was
paid and also considering the agreement of sale, it is very
clear that there was a bar for sale of 5 guntas of land and
as on the date of agreement, Prevention of Fragmentation
Act was prevailing. It has to be noted that there is no
dispute with regard to the fact that Fragmentation Act was
prevailing as of the date of agreement.
22. It is also to be noted that earlier there was an
agreement in the year 1984, but the same was not placed
before the Court but subsequently proved by Ex.P2 and
Ex.P3, it is very clear that an agreement was executed
subsequent to the purchase of the property by the
defendant and when both the Courts come to the
conclusion that there was an agreement and also sale
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consideration was paid, there is no dispute to that effect.
The finding of the trial Court as well as the appellate Court
which has been read above in paragraph No.24, the very
approach of the appellate Court is erroneous. That as on
the date of execution of the sale agreement, there was a
prevention of Fragmentation Act and admittedly the same
was repealed in the year 1991. But the suit was filed in
the year 1993 immediately after the repealment and the
suit was not barred by limitation and also no notice was
issued prior to filing of the suit. But the fact is that, when
the Fragmentation Act was repealed, the suit was filed and
even the judgment of Division Bench of this Court relied
upon by the respondent passed in RFA No.245/2008
(supra), in paragraph No.46, the Division Bench held that
it is relevant to note that the Court will adjudicate upon
the willingness of the plaintiff is required to consider the
various factors and the non-issuance of notice by the
plaintiff required and calling upon the defendant to
complete the sale transaction is a material aspect which is
required to be considered. But nowhere it contemplates
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that before filing the suit, the issuance of notice is
mandatory. But in the case on hand, it has to be noted
that there was a sale agreement and the entire sale
consideration was also paid and the Fragmentation Act
was prevailing as on the date of execution of the sale
agreement. But immediately after the repealment of the
said Act, the plaintiff has approached the Court for seeking
the relief of specific performance. It has to be noted that
both the Courts held that agreement is proved and though
there is total denial by the defendant that no such
agreement was executed, but both the Courts come to the
conclusion that defendant has executed the sale
agreement.
23. The Court has to take note of the conduct of the
defendant in denying the agreement. Even though the
entire sale consideration was received and executed the
agreement and his own witnesses, i.e., D.W.2 and D.W.3
gives evidence against him. In view of the principles laid
down in the judgments of the Apex Court,
Munisharmappa versus M. Ramareddy (supra) ,
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wherein the Apex Court categorically held that in
paragraph No.10, the agreement to sell is not a
conveyance and it does not transfer ownership rights or
confers any title. What is prohibited or barred under the
Fragmentation Act was the sale or transfer of rights and
therefore the agreement itself cannot be said to be barred.
Then this Court would like to extract the discussion made
in paragraph No.10 which reads as under:
“10. The Agreement to Sell is not a conveyance;
it does not transfer ownership rights or confers
any title. What is prohibited or barred under
the Fragmentation Act was the
lease/sale/conveyance or transfer of rights.
Therefore, the Agreement to Sell cannot be said
to be barred under the Fragmentation Act. The
appellant filed the suit for specific performance
after the repeal of the Fragmentation Act. The
suit could have been decreed without there
being any violation to the law once the
Fragmentation Act itself had been repealed in
February,1991. Further, the High Court did not
hold that the suit was barred by Section 5 of the
Limitation Act. The First Appeal Court had
considered this aspect and having decided the
said issue in favour of the appellant, we need
not got into that question at this stage. What is
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further noticeable is that the respondents
received the full consideration and had also
transferred the possession of the property in
question, as such other defences may not be
available to them. Even the issue of readiness
and willingness on the part of the appellant
would not be relevant.”
24. The other judgment of this Court passed in
Regular Second Appeal No.1502/2008 is also very clear
that when the agreement of sale executed after the repeal
of the Fragmentation Act and the High Court also
recognized that repeal has removed the legal obstacle and
upheld the enforceability of the agreement. The said
judgment is also aptly applicable to the case on hand and
so also the judgment relied upon by the counsel appearing
for the appellant in Sughar Singh (supra), wherein the
Apex Court held that the suit performance is the rule and
refusal is an exception and no doubt counsel appearing for
the respondent relied upon several judgments. The very
contention of the counsel appearing for the appellant that
re-execution of agreement is in violation of the
Fragmentation Act and Section 53A cannot be accepted.
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The very approach of the appellate Court is erroneous.
When the appellate Court comes to the conclusion that
there was an agreement and the same was proved and the
trial Court rightly comes to the conclusion that the
agreement was proved and also when the entire sale
consideration is paid and no doubt there was a judgment
in favour of the defendant passed in OS No.8/1993 and
the same was confirmed in the appeal in RA No.98/1998.
25. But it is important to note that the counsel
appearing for the plaintiff brought to the notice of this
Court that Ex.P2. It is very clear that when the defendant
had purchased the entire land to the extent of
Rs.1,31,000/- and at the time of getting khata transferred
in favour of him, he had objected the same. When he
had filed the objection, the same was considered by the
revenue authorities and effected khata only in respect of 1
acre 26 guntas and in respect of 5 guntas is concerned, no
khata is effected. The Court has to take note of the fact
that the same was not challenged and the same also
attained finality and the Court has to take note of the
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conduct of the defendant in entering into an agreement
with the plaintiff. Though earlier agreement was pleaded
by the plaintiff in the year 1984 executed by the original
owner Narasamma, but this document at Ex.P2 is very
clear that at the first instance itself the objection was
made by the plaintiff and the same was forthcoming in the
records of revenue department and consequently the
defendant also entered into an agreement with the plaintiff
on 15.02.1988 and the same was proved though denied.
No doubt there was no any recital in the agreement for
having delivered the possession. But the Court has to
take note of all these factors into consideration as
contended by the counsel appearing for the appellant in
his argument and considering all these materials and the
reasons assigned by the appellate Court in respect of
refund of money with interest in paragraph No.24. But in
view of the judgment of the appellate Court which has
been relied upon by the counsel for the appellant are aptly
applicable to the case on hand and when there was an
agreement of sale was proved and also the entire sale
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consideration was paid and even when there was
repealment of Fragmentation Act in the year 1991 itself,
the same will not bar the granting of relief of specific
performance but only for sale, there was a prohibition. But
in the case on hand, there was a sale agreement prior to
the repealment and when the parties are mutually entered
into an agreement that there was a prohibition of sale to
the extent of 5 guntas of land and executed the sale
agreement and received the entire sale consideration. The
first appellate Court committed an error in reversing the
same only on the ground of bar and the same was not in
force on the date of filing of the suit. Hence, I answer the
substantive questions of law accordingly.
26. In view of the discussions made above, I
proceed to pass the following:
ORDER
(i) RSA No.203/2010 is allowed . The order
passed by the First Appellate Court in
R.A.No.208/2003 is set aside.
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(ii) RSA Crob.7/2013 is dismissed .
Consequently, the judgment and decree
dated 29.11.2003 passed in
O.S.No.352/1993 by the trial Court is
restored and appellant is entitled for the
relief of specific performance and obtain
the same in accordance with law.
Sd/-
(H.P.SANDESH)
JUDGE
SSD