Karnataka High Court
Smt. Prathima vs Smt. Vinaya R. Achar on 11 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1417 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1417 OF 2023 (SP)
BETWEEN:
1. SMT. PRATHIMA
AGED ABOUT 62 YEARS
W/O LATE JAGADEESH ACHARY
2. SRI. PRAVEEN
AGED ABOUT 36 YEARS
S/O LATE JAGADEESH ACHARY
3. SRI. PRAMOD
AGED ABOUT 34 YEARS
S/O LAGE JAGADEESH ACHARY
4. SMT. PRATHIKA
AGED ABOUT 32 YEARS
Digitally signed S/O LATE JAGADEESH ACHARY
by DEVIKA M
Location: HIGH ALL ARE R/AT OPP. PADMAVATHI
COURT OF
KARNATAKA KALYANA MANTHAP, BEEDINAGUDDE,
MARUTI LANE, UDUPI
UDUPI TALUK AND DISTRICT-576 101.
...APPELLANTS
(BY SRI. PRASANNA V.R., ADVOCATE)
AND:
1. SMT. VINAYA R. ACHAR
AGED ABOUT 54 YEARS
W/O SRI. RAMAKRISHNA ACHAR
R/AT RAGI HOKLU
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RSA No. 1417 of 2023
HC-KAR
HEBRI VILLAGE AND TALUK
UDUPI DISTRICT-574 112.
...RESPONDENT
(BY SRI. CHANDRANATH ARIGA K., ADVOCATE FOR C/R)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 10.04.2023
PASSED IN R.A.NO.16/2021 ON THE FILE OF IIND ADDITIONAL
DISTRICT AND SESSIONS JUDGE, UDUPI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 1.06.2021 PASSED IN O.S.NO.53/2013 ON THE FILE OF
SENIOR CIVIL JUDGE AND ACJM, KARKALA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission and I have heard
learned counsel for the appellants and learned counsel for
caveator-respondent.
2. The factual matrix of case of the plaintiff before the
Trial Court is that 'A' schedule property was assigned in favour
of defendant in EDR:SR:1307/1994-95 dated 14.10.1998 and
in ADS EDR (1) SR 253/2002-03 dated 21.06.2003 The
defendant was residing at Udupi and employed there and he
wanted to dispose of the property for his urgent needs. The
defendant approached the plaintiff and agreed to sell the 'A'
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schedule property for a sum of Rs.4,15,000/- and also entered
into a written agreement of sale with the plaintiff dated
11.09.2004. The plaintiff was already in possession of the 'A'
schedule property under an earlier agreement of sale. The
plaintiff continued in possession of the property and the
defendant agreed that the plaintiff shall be entitled to make any
alterations in the suit property. The agreement was prepared in
duplicate and the original is with the plaintiff along with original
records. It is further contended that defendant also executed a
General Power of Attorney dated 27.03.2005 before the Notary
Public, Hebri empowering the husband of the plaintiff to
construct new building, to raise loans, and to do various acts
mentioned therein in view of the agreement of sale. Thereafter
plaintiff invested huge amount, carried out the enormous
improvements by erecting fence, raising fruit yielding trees,
constructing house, well, etc. As the price of the property has
been ascending considerably, defendant has been trying to get
over the agreement of sale by hook or crook. The defendant
has issued notice dated 04.06.2012 informing that aforesaid
power of attorney is terminated. The plaintiff has sent a true
reply dated 08.06.2012. There are two valuable jackfruit trees
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in the suit property and defendant is now threatening to cut
and remove the said trees. The defendant is negotiating to sell
the property on the basis of entries in record of rights and also
to dispossess the plaintiff. Therefore, plaintiff issued legal
notice on 26.02.2013 calling upon the defendant to refrain from
interfering with possession and enjoyment of the 'A' schedule
property. The defendant had sent a reply denying the
agreement of sale and even alleging forgery and fabrication by
the plaintiff. There was an earlier agreement of sale dated
29.06.1995 of the same property. The defendant has denied
the same in the reply notice. On 24.03.2013 defendant brought
outsiders to the property informing that he would sell the two
jackfruit trees situated in the property and also brought some
surveyor stating that he would put up fence around the house
so as to prevent the plaintiff from using the remaining
property. The defendant is permanently residing in Udupi. The
plaintiff and her family are residing in the very same property
and in the house bearing Door No. 6-18 of Hebri Village
situated in the suit property. The defendant is denying the
agreement of sale as well as possession of the plaintiff over the
suit property.
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3. It is also contended that bar against the sale of land
of first item of plaint schedule property stipulated in the
assignment order dated 02.01.1999 has expired. The defendant
has agreed to sell the property to the plaintiff as per agreement
of sale dated 19.11.2004 after the said period i.e., after
02.01.2014. The defendant has also agreed to sell the second
item of plaint 'A' schedule property after 21.06.2018 i.e., after
the period of 15 years as per the order of assignment dated
21.06.2003. The defendant has refused to execute the sale
deed and also denied the agreement of sale 26.11.1995 and
19.11.2004. It is also pleaded that plaintiff is and has always
been ready and willing to perform of agreement of sale and she
has already paid the entire consideration at the time of
agreement of sale and is ready to meet all the expenses of
execution and registration of sale deed.
4. In pursuance of the suit summons, the defendant
appeared and filed a written statement contending that
agreement dated 26.11.1995 and 19.11.2004 are false, forged
and fabricated. The defendant had not entered into any
agreement of sale at any point of time with the plaintiff. It is
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also contended that there is a statutory bar to enter into an
agreement of sale of the suit properties. The defendant plotted
the plot granted to him by the Government and effected vast
and valuable improvements in the suit schedule properties by
rearing and protecting trees and also constructing the house,
putting enclosures. It is further contended that the plaintiff's
husband was in the suit properties as agent/General Power of
Attorney Holder of the defendant and since the plaintiff's
husband Ramakrishna Achar turned hostile to the interest of
the defendant, the said General Power of Attorney was revoked
by cancelled by the defendant. Enraged by the revocation of
General Power of Attorney, the plaintiff has filed the suit
making false and frivolous allegations. The plaintiff is not
entitled for benefit of Section 53A without fulfilling the pre-
requisites for invoking the equitable doctrine of part
performance and prayed the court to dismiss the suit.
5. During the pendency of the suit, defendant died and
his legal representatives were also brought on record and they
have also filed additional written statement denying the
agreement of 19.11.2004 and content that it was an
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unregistered agreement. It is also contented that any
document in which if possession of immovable property is
delivered, then it has to be registered subsequent to
24.09.2001 i.e., the date on which Amendment Act 2001 of
Indian Registration Act come into force. It is also contented
that the alleged agreement is unenforceable under law and
contend that agreement dated 19.11.2004 is also not duly
stamped and unregistered. As on the date of alleged agreement
dated 26.11.1995, the property was not granted in favour of
the defendant and the extent of land mentioned therein is 0.99
acre. It is further contended that in the alleged agreement
dated 19.11.2004, the total extent of land mentioned therein is
0.93 acre. Hence it cannot be believed that plaintiff came into
possession of plaint 'A' schedule property. It is also contended
that plaintiff has sought the relief initially for the relief of the
permanent injunction and subsequently got amended for
specific performance and hence, not entitled for the relief of the
specific performance.
6. The Trial Court also framed the issues and also
additional issues and answered Issue No.1 as 'affirmative'
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regarding payment of consideration of Rs.4,15,000 in terms of
the agreement dated 19.11.2004. However, answered issue
No.2 as 'negative' regarding possession of plaint 'A' schedule
property under an earlier agreement of sale dated 26.11.1995
and answered issue No.3 as 'affirmative', in coming to the
conclusion that earlier there was an Power of Attorney and the
same was revoked. The Trial Court also answered issue no.4 as
'negative' regarding lawful possession is concerned as on the
date of suit and so also answered issue no.5 that plaintiff is not
entitled for the relief of declaration and also for the relief of
permanent injunction. However, answered the additional issues
in coming to the conclusion that bar will not come in the way of
sale of land in item nos.1 and 2 of the plaint schedule property,
since the same has expired and also answered additional issue
no.2 in the 'affirmative', in coming to the conclusion that
defendant has agreed to sell the 2nd item of plaint schedule
property after 21.06.2018 and so also answered additional
issue no.3 as 'affirmative' that plaintiff proves that she is
always ready and willing to perform his part of agreement of
sale. Having answered these issues, granted the relief of
specific performance in favour of the plaintiff and directed to
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execute the sale deed in favour of the plaintiff within four
months.
7. Being aggrieved by the judgment and decree of the
Trial Court, an appeal is filed before the First Appellate Court in
R.A.No.16/2021. The First Appellate Court having considered
the grounds urged in the appeal memo and also considering
both oral and documentary evidence available on record,
formulated the point whether the appellant has established that
agreement of sale is void during non-elimination period of 15
years and also framed the point for consideration whether
judgment and decree passed by Trial Court partly decreeing the
suit of the plaintiff is just and proper and so also formulated the
point whether the appellants/defendant nos.1(a) to 1(a) have
made out grounds to interfere with the judgment and decree
passed by Trial Court. The First Appellate Court, on re-
appreciation of both oral and documentary evidence, answered
the point no.1 as 'negative' and confirmed the judgment of the
Trial Court and answered point no.2 as 'affirmative' and so also
answered point no.3 as 'negative' and the appeal filed by the
appellant is dismissed.
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8. Now learned counsel for the appellants would
vehemently contend that the very reasoning given by both the
Courts is erroneous and contend that both the Courts have
committed an error in decreeing the suit of the plaintiff without
appreciating the provisions of Section 34 of the Karnataka
Stamp Act, 1957, when it was the case of P.W.1 that the
alleged possession of the suit schedule properties were based
on the alleged sale agreement Ex.P.29 and Ex.P30. Learned
counsel also would vehemently contend that the Trial Court has
erred in law in decreeing the suit of the plaintiff based Ex.P29,
when there is an express bar under the assignment/Saguvali
Chit Exs.P5, P6, P11 and P12 respectively. Learned counsel also
counsel would vehemently contend that Trial Court also
committed an error in holding that suit is filed within the period
of limitation, having accepted the fact that defendant has
denied the execution of alleged agreement of sale way back in
the year 2012-2013 by issuing notice and amendment of plaint
was allowed only on 05.12.2017 in view of Article 54 of the
Limitation Act. The counsel also vehemently contended that the
decree passed by the Trial Court is not justifiable in view of
Section 16(c) and 17 of the Specific Relief Act, 1963. The
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counsel also vehemently contended that First Appellate Court is
not justified in confirming the judgment and decree of the Trial
Court without re-appreciating the pleadings, evidence and legal
issues raised by the defendants and the First Appellate Court
are not justified in confirming the judgment and decree of the
Trial Court without re-appreciating the pleadings and evidence.
Hence this court has to frame substantial questions of law in
terms of the grounds which have been urged in the appeal and
also substantial question of law suggested by counsel for the
appellants.
9. Per contra, learned counsel for the caveator-
respondent brought to notice of this Court that even while
entering into an agreement also, both the plaintiff and
defendants were conscious about the bar and the recitals of the
agreement is very clear that sale deed would be executed only
after expiry of the period of 15 years and the said fact was also
taken note of by the Trial Court while considering the material
on record and particularly in Paragraph No.41, comes to the
conclusion that it was only a sale agreement and not any sale
and the same not comes within the meaning of Section 61 of
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the Karnataka Land Reforms Act. The counsel would
vehemently contend that the Trial Court given the finding that
agreement of sale is not hit by Section 61 of the Karnataka
Land Reforms Act. The counsel also would vehemently contend
that having received the entire sale consideration, the
appellants cannot blow hot and cold denying the very execution
of document and though contend that document was forged
and created, nothing is placed on record before the Trial Court
by sending the document to Handwriting Expert that the
document was forged. But the Trial Court comes to the
conclusion that there was an agreement and also comes to the
conclusion that Power of Attorney was executed and the same
was also admittedly revoked by the appellant and all these
factors were taken note of by the Trial Court. The counsel also
brought to notice of this court even in paragraph No.35 of the
order of the First Appellate Court there was a mistake and it
was observed that plaintiff instituted suit only after completion
of 15 years time stipulated in the Saguvali Chit and counsel
would submit that when an attempt was made to dispossess
the possession of plaintiff, a suit was filed and though suit was
filed prior to completion of the period, but the decree was
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granted only after expiry of period of 15 years and hence,
cannot find fault with the same. The counsel also would
contend that both the Courts have not committed any error.
10. In reply to this argument of learned counsel for the
caveator-respondent, learned counsel for the appellants relied
upon the judgment of Apex Court in SMT. NARAYANAMMA
AND ANOTHER ETC. ETC. VS. GOVINDAPPA AND OTHERS
ETC. ETC. reported in AIR 2019 SC 4654 and brought to
notice of this Court paragraph No.23, wherein it is observed
that the transaction between the late Bale Venkataramanappa
and the plaintiff is not disputed. Initially, the said Bale
Venkataramanappa had executed a registered mortgage deed
in favour of the plaintiff. Within a month, he entered into an
agreement to sell wherein, the entire consideration for the
transfer as well as handing over of the possession was
acknowledged. It could thus be seen, that the transaction was
nothing short of a transfer of property. Under Section 61 of the
Reforms Act, there is a complete prohibition on such mortgage
or transfer for a period of 15 years from the date of grant. The
counsel also referred paragraph No.25 of the judgment and
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contend that when there is a clear bar to sell the property,
there cannot be any sale. Hence, this judgment is aptly
applicable to the case on hand and matter requires
reconsideration.
11. Having heard learned counsel for the appellants and
also learned counsel for the respondent and also considering
the material on record, it is not in dispute that land in 'A'
schedule property was granted and there were two grants and
first grant was dated 14.10.1998 and second grant was
21.06.2003 and it has to be noted that the very case of the
plaintiff is that there were two sale agreements, one was in the
year 1995 and another agreement was in the year 2004. The
main contention is that while executing the sale agreement
dated 19.11.2004 in respect of the 'A' schedule property
received the consideration of Rs.4,15,000. The counsel
appearing for the appellants also not disputes the fact that in
the recitals of agreement, there is a clause that sale deed will
be executed after the expiry of the period of 15 years, since
there is a bar to execute the sale deed. Hence, it is very clear
that the agreement of sale is made consciously that there was
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a bar and no sale transaction has taken place during that
period and only an agreement of sale was entered into and
when the defendants had consciously executed the document of
sale agreement knowing fully well that there is a bar for
alienation of the property for a period of 15 years, apart from
they also executed a Power of Attorney in favour of the plaintiff
and admittedly, the same was revoked by the appellant herein.
Hence, it is very clear that there was a sale transaction and
Power of Attorney was also executed and counsel would
contend that the bar was not properly taken note of by the Trial
Court. But the fact is that there was a sale agreement and
there was also a clause in the sale agreement that sale deed
will be executed only after the expiry of the period of 15 years.
When such being the case and when no sale transaction has
taken place within a period of 15 years, the very contention
that Section 61 of the Karnataka Land Reforms Act comes into
play cannot be accepted and the same was also taken note of
by the Trial Court in paragraph No.41 of the judgment that the
same will not attract.
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12. The First Appellate Court also having reassessed the
material available on record, taken note of the fact that
agreement was entered consciously by the defendants even
during the subsistence of the bar and the clause in the
agreement is also very clear that sale deed will be executed
only after the expiry of bar. It has to be noted that it is also the
specific case of the plaintiff before the Court that when the
Power of Attorney was revoked and also an attempt was made
to interfere with the possession having revoked the Power of
Attorney, a suit was filed and no doubt, the First Appellate
Court made an error in mentioning the factual aspect that suit
was filed before expiry of the period of 15 years, but the fact is
that in the very pleading, it is categorically stated that when
attempt was made to disturb the possession, suit was filed and
as rightly pointed out by learned counsel for the caveator-
respondent also that judgment and decree was passed only
after expiry of the period of 15 years, since there was a bar.
Apart from that, the clause is very clear with regard to the fact
that transaction has to be taken place only after the period of
15 years. When such being the case, both the Courts have
applied their mind invoking Section 61 as contended by the
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learned counsel for the appellants and there was no sale
transaction within that period. Hence, question of invoking
Section 61 and framing of substantial question of law does not
arise. The counsel for the appellant would vehemently contend
that both the documents of sale agreement are barred by
Section 34 of the Karnataka Stamp Act, 1957 and both the
Courts taken note of the very execution of Power of Attorney
with regard to delivery of possession and for improvement.
When such being the case, the very contention of the learned
counsel for the appellants also cannot be accepted.
13. The principles laid in the judgment of the Apex
Court in the case of SMT. NARAYANAMMA's case is not helpful
to learned counsel for the appellants, since there was no sale
transaction between the period of bar and only an agreement
was entered and the defendants have consciously entered into
an agreement of sale knowing the fact that there was a bar to
execute the sale deed and the time stipulated is also to execute
the sale deed after the period of 15 years. When such being the
factual aspects, I do not find any ground to come to a
conclusion that there was a perversity in the finding of the Trial
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Court to invoke Section 100 of CPC to frame the substantial
question of law as contended by the learned counsel for the
appellants.
14. In view of the discussions made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
