Karnataka High Court

Sri H Shankar Gouda S/O H Veerana Gouda vs Sri J Prahallada Setty on 4 June, 2024

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                                                         NC: 2024:KHC-D:7428
                                                              RSA No. 5123 of 2009




                         IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                               DATED THIS THE 4TH DAY OF JUNE, 2024

                                              BEFORE

                              THE HON'BLE MR JUSTICE C.M. POONACHA

                             REGULAR SECOND APPEAL NO. 5123 OF 2009

                   BETWEEN:

                   SRI H.SHANKAR GOUDA
                   S/O H.VEERANA GOUDA
                   AGED ABOUT 38 YEARS,
                   R/O RAMASAGARA VILLAGE,
                   HOSPET TALUK,
                   BELLARY DISTRICT.
                                                                         ...APPELLANT
                   (BY SMT. V.VIDYA IYER FOR
                    SRI K. RAGHAVENDRA RAO, ADVOCATES)

                   AND:

                   SRI J. PRAHALLADA SETTY
                   S/O J.RAMACHANDRA SETTY,
                   AGED ABOUT 50 YEARS,
                   AGRICULTURIST AND PRACTICING ADVOCATE,
Digitally signed   R/O RANIPET, HOSPET, BELLARY DIST.
by SAROJA                                                             ...RESPONDENT
HANGARAKI          (BY SRI SOURABH R. MIRJE FOR
Location: HIGH      SRI S.S.BALLOLI, ADVOCATES)
COURT OF
KARNATAKA                 THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET ASIDE
DHARWAD
BENCH              THE    JUDGMENT    AND   DECREE      IN   R.A.NO.92/2007,   DATED
DHARWAD
                   19.11.2008 PASSED BY THE PRINCIPAL CIVIL JUDGE (SR.DN) &
                   JMFC, HOSPET, AND RESTORE THE JUDGMENT AND DECREE IN
                   O.S.NO.187/2003 DATED 07.09.2007 PASSED BY THE ADDITIONAL
                   CIVIL JUDGE (JR.DN.) AND JMFC AT HOSPET, ALLOW THIS RSA
                   WITH COST.

                          THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
                   THE COURT DELIVERED THE FOLLOWING:
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                                              NC: 2024:KHC-D:7428
                                                    RSA No. 5123 of 2009




                                JUDGMENT

The above second appeal is filed under Section 100

of the Code of Civil Procedure, 19081 by the defendant

challenging the judgment and decree dated 19.11.2008

passed in R.A.No.92/2007 by the Principal Senior Civil

Judge and JMFC, Hospet2 and the judgment and decree

dated 07.09.2007 passed in O.S.No.187/2003 by the

Additional Civil Judge and JMFC, Hospet3, whereunder the

suit for specific performance was dismissed by the Trial

Court and the appeal filed by the plaintiff was allowed by

the First Appellate Court setting aside the judgment and

decree passed by the Trial Court and the suit for specific

performance was decreed and the defendant has been

directed to execute and register the sale deed.

2. The parties herein are referred to as per their

ranking before the Trial Court for the sake of

convenience.

Hereinafter referred to as the 'CPC'

Hereinafter referred to as the 'First Appellate Court'

Hereinafter referred to as the 'Trial Court'

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3. The relevant facts necessary for consideration

of the present appeal are that the father of the defendant

was granted the suit property on 30.05.1981 and he

entered into an agreement of sale dated 24.09.1990 with

the plaintiff to sell the suit property for a total sale

consideration of ₹42,000/-. That since there was a legal

prohibition for alienation of the suit property for a period

of 15 years from the date of grant, the sale deed in

respect of the suit property could not be executed

immediately. Hence, the plaintiff filed a suit for specific

performance.

4. The defendant entered appearance in the said

suit and contested the same. The Trial Court framed six

issues. The plaintiff examined himself as PW.1 and two

witnesses as PW.2 and PW.3. Exs.P.1 to P.5 were marked

in evidence. The defendant examined himself as DW.1.

Exs.D.1 to D.6 were marked in evidence.

5. The Trial Court by its judgment and decree

dated 07.09.2007 dismissed the suit. Being aggrieved,

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the plaintiff preferred R.A.No.92/2007. The First Appellate

Court framed five points for consideration.

6. The First Appellate Court by its judgment and

decree dated 19.11.2008 allowed the appeal and passed

the following order:

"ORDER

Appeal is allowed with costs.

Judgment and decree passed by trial court in O.S.No. 187/2003 is set aside.

Suit of the plaintiff for specific performance of contract is decreed.

Defendant is directed to execute the registered sale deed.

Defendant and his men are permanently restrained from interfering in the enjoyment of the suit schedule property by the plaintiff.

Draw decree accordingly and return records to the trial court."

7. Being aggrieved, the present second appeal is

filed by the defendant.

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8. This Court by order dated 13.09.2012, admitted

the above appeal and framed the following substantial

questions of law:

"1. Whether the First Appellate Court has committed an illegality in decreeing the suit for specific performance when the alleged agreement of sale itself is prohibited in law?

2. Whether the First Appellate Court is right in law in decreeing the suit for specific performance in view of Section 16(c) of the Specific Relief Act?

3. Whether the First Appellate Court has committed an illegality in decreeing the suit for specific performance when the said suit is barred by limitation in view of the recital in the alleged agreement of sale?"

9. Heard the learned counsel for the

appellant/defendant and learned counsel for the

respondent/plaintiff.

10. At the outset, it is noticed that if the first

substantial question of law is answered in the affirmative,

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the question of considering the other substantial

questions of law would not arise.

11. In the said context, the learned counsel for the

appellant relies on the judgment of the Hon'ble Supreme

Court in the case of Narayanamma and Another vs.

Govindappa and Others4, wherein the Hon'ble Supreme

Court was considering a question as to whether an

agreement of sale executed during a non-alienation

period prescribed under Section 61 of the Karnataka Land

Reforms Act is enforceable in law or not. In the said fact

situation, the Hon'ble Supreme Court held as follows:

"28. Now, let us apply the other test laid down in Immani Appa Rao. At the cost of repetition, both the parties are common participator in the illegality. In such a situation, the balance of justice would tilt in whose favour is the question. As held in Immani Appa Rao, if the decree is granted in favour of the plaintiff on the basis of an illegal agreement which is hit by a statute, it will be rendering an active assistance of the court in enforcing an agreement which is contrary to law. As against this, if the balance is tilted towards the defendants, no doubt

(2019) 19 SCC 42

NC: 2024:KHC-D:7428

that they would stand benefited even in spite of their predecessor- in title committing an illegality.

However, what the court would be doing is only rendering an assistance which is purely of a passive character. As held by Gajendragadkar, J. in Immani Appa Rao, the first course would be clearly and patently inconsistent with the public interest whereas, the latter course is lesser injurious to public interest than the former."

(emphasis supplied)

12. In the present case, it is clear that the suit

property was granted in favour of the father of the

defendant pursuant to the award passed by the Land

Tribunal, Hospet and Saguvali Chit in From No.10 was

issued in his name on 30.05.1981. That it is the case of

the plaintiff in the plaint itself that there was a non-

alienation period for 15 years from the date of grant and

hence the sale deed could not be executed by the father

of the defendant and that in such a circumstance the

agreement of sale dated 24.09.1990 (Ex.P.5) was

executed.