- 1 - HC-KAR NC: 2025:KHC:20046 RSA No. 451 of 2017 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 …APPELLANTS (BY SRI. VENKATA REDDY S K., ADVOCATE) AND: SUSHEELAMMA 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) Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:20046 RSA No. 451 of 2017 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 - 3 - HC-KAR NC: 2025:KHC:20046 RSA No. 451 of 2017 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 It is contended that after the Fragmentation Act, was repealed, the plaintiffs requested the defendant to execute the registered sale deed, but the defendant refused to effect the registered sale deed.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. - 4 - HC-KAR NC: 2025:KHC:20046 RSA No. 451 of 2017 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. - 5 - HC-KAR NC: 2025:KHC:20046 RSA No. 451 of 2017 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 - 6 - HC-KAR NC: 2025:KHC:20046 RSA No. 451 of 2017 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. - 7 - HC-KAR NC: 2025:KHC:20046 RSA No. 451 of 2017 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 - 8 - HC-KAR NC: 2025:KHC:20046 RSA No. 451 of 2017 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 - 9 - HC-KAR NC: 2025:KHC:20046 RSA No. 451 of 2017 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. - 10 - HC-KAR NC: 2025:KHC:20046 RSA No. 451 of 2017 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