Karnataka High Court
Kempanna vs Susheelamma on 11 June, 2025
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RSA No. 451 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 451 OF 2017 (SP)
BETWEEN:
1. KEMPANNA
S/O LATE RANGAPPA
AGED ABOUT 58 YEARS
2. B R KEMPARANGAIAH
S/O LATE RANGAPPA
AGED ABOUT 56 YEARS
BOTH ARE R/AT BELAGUMBA VILLAGE
KASABA HOBLI
TUMAKURU TALUK
TUMAKURU DIST:572 104
Digitally signed ...APPELLANTS
by SUNITHA K (BY SRI. VENKATA REDDY S K., ADVOCATE)
S
Location: AND:
HIGH COURT
OF SUSHEELAMMA
KARNATAKA W/O LATE SAJEEVAIAH
AGED ABOUT 64 YEARS
R/AT LAMBANI THANDY
BELAGUMBA
KASABA HOBLI
TUMAKURU TALUK AND DIST.-572 104
...RESPONDENT
(BY SRI. ANANDEESWARA D R, ADVOCATE FOR C/R)
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RSA No. 451 of 2017
HC-KAR
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 16.01.2017 PASSED IN R.A.NO.
94/2013 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE
AND JMFC., TUMAKURU, PARTLY ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGEMENT AND DECREE DTD
27.07.2012 PASSED IN OS.NO.341/2010 ON THE FILE OF THE
III ADDL. CIVIL JUDGE AND JMFC., AT TUMAKURU.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This Regular second appeal is filed by the appellants
challenging the judgment and decree dated 16.01.2017,
passed in R.A.No.94/2013 by the II Additional Senior Civil
Judge and JMFC, Tumakuru.
2. For convenience, parties are referred to based
on their rankings before the trial Court. The appellants
were the plaintiffs, and the respondent was the defendant.
3. Brief facts leading rise to the filing of this
appeal are as follows:
The plaintiffs filed a suit against the defendant for
specific performance of a contract. It is the case of the
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plaintiffs that the defendant is the absolute owner of the
suit schedule property, and agreed to sell the suit schedule
property for a consideration of Rs.3,750/-. The plaintiffs
paid the entire sale consideration amount to the defendant
on 02.03.1983, and the defendant, after receiving the
entire sale consideration amount, executed a sale
agreement dated 02.03.1983. As of on the date of
execution a sale agreement, there was a bar under the
Fragmentation Act, and it was agreed that the sale deed
would be executed after the repealing of the
Fragmentation Act. It is contended that after the
Fragmentation Act, was repealed, the plaintiffs requested
the defendant to execute the registered sale deed, but the
defendant refused to effect the registered sale deed.
Therefore, the plaintiffs issued a legal notice dated
08.03.2010 regarding the execution of sale deed, but the
defendant did not reply to the said legal notice. Hence, a
cause of action arose for the plaintiffs to file a suit for
specific performance of a contract.
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3.1. The trial Court issued a summons to the
defendant. Despite the service of summons, the
defendant remained unrepresented and was placed
exparte.
3.2. The plaintiffs, to substantiate their case,
plaintiff No.2 was examined as PW.1, examined one
witness as PW.2 and marked 11 documents as Exs.P1 to
P11. The trial Court, after assessing the materials placed
on record, decreed the suit. It is ordered and directed to
the defendant to execute the registered sale deed in
favour of the plaintiff regarding the suit schedule property
as per the terms of the agreement dated 02.03.1983. The
defendant, aggrieved by the judgment and decree dated
27.07.2012, passed in O.S.No.341/2010, preferred an
appeal in R.A.No.94/2013.
3.3. The Trial Court, after recording the evidence
and hearing of the plaintiffs, framed the relevant points for
consideration.
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3.4. The first Appellate Court, after hearing the
learned counsel for the parties, framed the relevant points
for consideration.
3.5. The first Appellate Court, after re-appreciating
the verbal and documentary evidence, allowed the appeal
with costs and, set aside the judgment and decree passed
in O.S.No.341/2010, and consequently dismissed the suit
of the plaintiffs. The plaintiffs, aggrieved by the judgment
and decree passed in R.A.No.94/2013, preferred this
regular second appeal.
4. Heard the arguments of Sri. Venkata Reddy
S.K, learned counsel for the plaintiffs and Sri.
Anandeeshwara D.R., learned counsel for the respondent.
5. Learned counsel for the plaintiffs submits that
there is no bar for decreeing the suit for specific
performance of a contract, even if the sale agreement is in
violation of the Fragmentation Act. To buttress his
arguments, he has placed reliance on the judgment of the
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Hon'ble Apex Court in the case of MUNISHAMAPPA VS.
M. RAMA REDDY AND OTHERS reported in 2023 SCC
ONLINE SC 170. Hence, he submits that the first
Appellate Court committed an error in dismissing the suit,
and the judgment and decree passed by the first Appellate
Court is contrary to the ratio laid down by the Hon'ble
Apex Court in the case of MUNISHAMAPPA (referred
supra). He also submits that the time is not the essence of
contract. He submits that the notice was issued in 2010,
and the defendant did not reply to the legal notice.
Hence, a cause of action arose from the date of issuing of
legal notice. Hence, the suit is filed well within the time
from the date of denial. Hence, the first Appellate Court,
committed an error in dismissing the suit on the ground
that it is barred by limitation. Hence, on these grounds,
prays to allow the appeal.
6. Perused the records and considered the
submissions of the learned counsel for the parties.
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7. The plaintiffs, to substantiate their case, plaintiff
No.2 was examined as PW.1. He deposed that the
defendant is the absolute owner and in possession of the
suit schedule property, and he agreed to sell the suit
schedule property for a consideration of Rs.3,750/- and
accordingly, the plaintiff paid the entire consideration
amount. It is deposed that the sale deed was agreed to be
executed after repealing of the Fragmentation Act. After
repealing the Fragmentation Act, the plaintiffs were issued
a legal notice to the defendant calling upon the defendant
to execute the registered sale deed. The defendant did
not reply to the legal notice. The plaintiffs, to prove that
the defendant executed a registered sale agreement,
marked the registered sale agreement as Ex.P4. To show
that the plaintiffs were ready to get the sale deed
executed, issued a legal notice, marked as Ex.P1. Ex.P7 is
the RTC extract, and Exs.P8 to P11 are the computer
pahanies of the suit schedule property. The trial Court,
considering the evidence of PW.1 and PW.2, decreed the
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suit, holding that the plaintiffs have proved the execution
of the sale agreement dated 02.03.1983. The defendant,
aggrieved by the judgment and decree passed by the trial
Court, preferred an appeal in R.A.No.94/2013.
8. Admittedly, the registered sale agreement
marked as Ex.P4 was executed on 02.03.1983. As per the
terms and conditions of the sale agreement, the sale deed
is to be executed after the repealing of the Fragmentation
Act. From the perusal of the recital of Ex.P4, time is the
essence of the contract. The Fragmentation Act was
repealed in the year 1992. The plaintiffs ought to have
filed a suit within 3 years from the date of repealing of the
Fragmentation Act. The plaintiffs have not taken steps to
enforce the said sale agreement for more than 17 ½
years. The plaintiffs did not enforce the said agreement
within a reasonable time after the repeal of the Act of
Fragmentation. Thus, the suit filed by the plaintiffs is
barred by limitation. The first Appellate Court, considering
the entire evidence on record, rightly held that the
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plaintiffs were not entitled to the relief of specific
performance of a contract and allowed the appeal and
dismissed the plaintiff's suit. Although the learned counsel
for the plaintiffs relied on the judgment of the Hon'ble
Apex Court in the case of MUNISHAMAPPA (referred
supra), there is no dispute regarding the ratio laid down
by the Hon'ble Apex Court. Hence, the judgment relied
upon by the learned counsel for the plaintiffs does not
apply to the case on hand. Further, the plaintiffs have
failed to enforce the agreement within a reasonable time.
Hence, I do not find any error in the impugned judgment
or any substantial question of law that arises for
consideration in this appeal.
9. Accordingly, I proceed to pass the following:
ORDER
i. The Regular Second Appeal is
dismissed.
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ii. The judgment and decree passed by the
first Appellate Court is hereby
confirmed.
iii. No order as to the costs.
In view of the dismissal of the appeal, I.A.No.1/2017
does not survive for consideration and is accordingly
disposed of.
Sd/-
(ASHOK S.KINAGI)
JUDGE
SKS
