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10. I have heard Sri A.P. Murari, learned counsel for
the appellants and Sri.Anoop G. Deshpande, learned
counsel appearing for the respondent.
11. Sri, A.P. Murari learned counsel for the appellants
submitted that, the First Appellate Court has
committed an error in misconstruing the recital the
Agreement of Sale dated 15.05.1987 (Ex.P1) and
Endorsement dated 16.05.1987 (Ex.P2). It is also
argued by the learned counsel appearing for the
appellants that, since, the prohibition was operating
against any alienation that may be made by the
grantee, on account of the fact that the land is
granted to the father of the defendants on 05.03.1987
and therefore, it is argued that, the First Appellate
Court has committed an error in interfering with the
finding recorded by Trial Court on issue Nos.1 to 3 and
accordingly, learned counsel appearing for the
appellants sought for interference of this Court. It also
NC: 2025:KHC-D:3216
submitted by the learned counsel appearing for the
appellants that, even if such a void Sale Agreement is
existing insofar as the Inam land is concerned, the
suit is filed after 17 years, based on the Sale
Agreement and same is void ab-initio and therefore,
finding recorded by First Appellate Court requires to
be interfered with in this appeal.
12. Per contra, Sri. Anoop G. Deshpande, learned
counsel for the respondent sought to justify the
finding recorded by the First Appellate Court on issue
Nos.1 to 3. He further argued that as the father of the
defendants delivered the possession of the suit
schedule property to the husband of the plaintiff on
the date of execution of the Agreement of Sale, dated
15.05.1987 and therefore, the finding recorded by
First Appellate Court requires to be affirmed in this
appeal.
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13. Heard the learned counsel appearing for both the
parties and on careful examination of the finding
recorded by both the courts below, it is the case of the
plaintiff that, the husband of the plaintiff had entered
into Agreement of Sale with father of the defendants
on 15.05.1987, agreeing the purchase the suit
schedule property for total consideration of
Rs.10,000/-. It is also stated that, the husband of the
plaintiff has paid Rs.8,000/- on 15.05.1987 and
remaining consideration of Rs.2,000/- on 16.05.1987
and further the father of the defendants delivered the
possession of the property in question in favour of
husband of the plaintiff on the date of execution of the
Agreement of Sale. The said aspect has been denied
by the defendants. It is also not in dispute that the
suit property has been granted to the father of the
plaintiff, as per Ex.D1 (dated 05.03.1987). The said
grant was made subject to terms and condition
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whereby, the grantee is precluded from creating 3rd
party interest within 15 years from the date of grant
and in the backdrop of the said aspects, the
Agreement of Sale (Ex.P1) was said to have been
made within two months from the date of grant. In
that view of the matter, the finding recorded by First
Appellate Court cannot be accepted. Strangely, the
Trial Court has formulated the issue relating to
limitation. On careful examination finding recorded by
both the courts below Agreement of Sale was
executed on 15.05.1987 (Ex.P1) and the plaintiff
caused notice on 16.09.2001 calling upon the
defendants to execute the registered Sale Deed dated
and nothing is shown in the plaint with regard to the
limitation as the notice was issued on 16.08.2001,
after 17 years after execution of Agreement of Sale.
In that view of the matter following the declaration of
the law made by the Hon'ble Supreme Court in the
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case of C. S Venktaesh vs. A.S.C. Murthy (D) by
Lrs and Others reported in (2020) 3 SCC 280, I
am of the opinion that, the plaintiff has not proved the
ingredients to be fulfilled in a suit for specific
performance, and the Trial Court has rightly dismissed
the suit, however, the First Appellate Court, on
erroneous misconception of facts and law interfered
with the finding recorded by Trial Court on Issue No.1
to 3 and therefore, the substantial question of law
framed above favours the defendants. In the result, I
pass the following:
ORDER
i) The Regular Second Appeal is allowed;
ii) Judgment and decree dated 11.03.2013 in RA
No. 133 of 2012 on the file II Additional District
Judge, Bellary interfering with the finding
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recorded by Trial Court on Issue Nos. 1 to 3 are
hereby set aside;
iii) Judgment and decree dated 19.06.2008 in OS
No.38 of 2004 on the file of Civil Judge (Jr.Dn.),
Siruguppa is hereby confirmed.
Sd/-
(E.S.INDIRESH)
JUDGE
SB
CT:GSM
