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2010 DAILYLAW 1318 (KAR)

SRI C. NARASIMHA REDDY v. SRI. AVALAPPA

RSA.CROB/7/2013 · 2026-07-10

H P Sandesh

body2010

Judgment text

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- 1 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH 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 R Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - 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. - 3 - 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 - 4 - 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. - 5 - 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 - 6 - 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 - 7 - 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. - 8 - RSA No. 203 of 2010 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 - 9 - RSA No. 203 of 2010 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 - 10 - RSA No. 203 of 2010 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 - 11 - RSA No. 203 of 2010 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? - 12 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 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 - 13 - RSA No. 203 of 2010 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, - 14 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 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 - 15 - RSA No. 203 of 2010 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 - 16 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 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 - 17 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 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 - 18 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 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 - 19 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 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. 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 - 20 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 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 - 21 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 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. - 22 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 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 - 23 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 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 - 24 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 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 - 25 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 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 - 26 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 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 - 27 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 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 - 28 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 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), - 29 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 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 - 30 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 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. - 31 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 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 - 32 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 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 - 33 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 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. - 34 - RSA No. 203 of 2010 C/W RSA.CROB No. 7 of 2013 (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