- 1 - NC: 2025:KHC-D:6073 RSA No. 6015 of 2011 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF APRIL 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 6015 OF 2011 (SP-) BETWEEN: 1. PARVATEVVA W/O. BASAYA HIREMATH, AGE: 44 YEARS, OCC: HOUSEHOLD WORK, R/O: HALLIGERI, TALUK: DHARWAD, DISTRICT: DHARWAD-580001. 2. SMT. CHANDRAVVA W/O. BASAVARAJ NARENDRA MATH, AGE: 37 YEARS, OCC: HOUSEHOLD WORK, R/O: UPPINABETEGERI, TQ: DHARWAD, DIST: DHARWAD-580001. …APPELLANTS (BY SRI. J.S. SHETTY, ADVOCATE) AND: SMT. GANGAVVA W/O. VIRUPAKSHAYYA TIGADIMATH, AGE: 50 YEARS, OCC: HOUSEHOLD WORK, R/O:UPPINABETEGERI, TQ: DHARWAD, DIST: DHARWAD-580001. …RESPONDENT (BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF C.P.C. PRAYING TO THE JUDGMENT AND DECREE DATED 29.11.2010 PASSED BY THE COURT OF THE IN THE COURT OF THE FAST TRACK III, DHARWAD IN R.A. NO.319/2009 BY REVERSING THE JUDGMENT AND DECREE DATED 13.03.2003 PASSED BY THE COURT OF THE PRINCIPAL CIVIL JUDGE (JR.DN) AND PRINCIPAL J.M.F.C AT DHARWAD IN O.S. NO.205/1997, ANY KINDLY BE SET ASIDE BY ALLOWING THIS APPEAL WITH COST THROUGHOUT, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:6073 RSA No. 6015 of 2011 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This appeal is preferred by the legal heirs of the defendant questioning the judgment and decree dated 29.11.2010 in R.A.No.319/2009 on the file of the Fast Track-III Court, Dharwad (for short “the First Appellate Court”) allowing the appeal and decreeing the suit in entirety by partly setting aside the judgment and decree dated 13.03.2003 in O.S.No.205/1997 on the file of the Principal Civil Judge (Jr.Dn) and Principal JMFC at Dharwad (for short “the Trial Court”) decreeing the suit of the plaintiff. 2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court. 3. The plaint averments are that the Block No.15 measuring 6 acres 5 guntas situate at Hanumankoppa of Dharwad Taluk wherein 1/3rd share of the suit property stands in the name of defendant. It is further stated that the plaintiff, defendant and one Charantayya are the joint owners of the agricultural land bearing Block No.15 of Hanumankoppa village. It is also stated that the plaintiff and defendant are related to - 3 - NC: 2025:KHC-D:6073 RSA No. 6015 of 2011 each other. The defendant has requested the plaintiff for financial assistance and put her 1/3rd share in the suit schedule property for sale to the plaintiff and as such, the sale agreement dated 18.03.1991 was entered into between plaintiff and defendant to sell 1/3rd share of the defendant to the plaintiff in Block No.15 for total sale consideration of Rs.18,000/-. The plaintiff has paid earnest money of Rs.16,000/- and agreed to pay the remaining sale consideration at the time of execution of the registered sale deed. It is also stated that the defendant has handed over the possession of the suit property in favour of the plaintiff and as such, the plaintiff is cultivating the share of the defendant as well as her individual share. It is also stated that the plaintiff has requested the defendant to execute the registered sale deed, however, the defendant was postponing the same without any cause. Hence, the plaintiff issued legal notice dated 20.03.1997 calling upon the defendant to execute the registered sale deed by receiving remaining sale consideration amount. In this regard, the defendant has replied on 29.03.1997 denying the execution of agreement of sale. Hence, the plaintiff has filed - 4 - NC: 2025:KHC-D:6073 RSA No. 6015 of 2011 suit in O.S.No.205/1997 seeking relief of specific performance of contract. 3.1. After service of notice, defendant entered appearance and filed detailed written statement denying the averments made in the plaint. The defendant has specifically denied that she entered into an agreement of sale in respect of the suit schedule property with the plaintiff. It is also contended by the defendant that the husband of defendant and husband of plaintiff are brothers and the husband of the defendant is no more and since there is no partition in respect of the suit schedule property, the suit is not maintainable and accordingly sought for dismissal of the suit. 3.2. The Trial Court, based on the pleadings on record, has formulated issues for its consideration. In order to establish their case, the plaintiff has examined four witnesses as PW1 to PW4 and produced 7 documents, which were marked as Ex.P1 to Ex.P7. The defendant examined herself as DW1, however no documents were placed on behalf of the defendant. 3.3. The Trial Court, after considering the material on record, by its judgment and decree dated 13.03.2003 decreed - 5 - NC: 2025:KHC-D:6073 RSA No. 6015 of 2011 the suit of the plaintiff in part and directed the defendant to refund the earnest money of ₹16,000/- with interest. Hence, the Trial Court rejected the relief of specific performance. Feeling aggrieved by the same, the plaintiff filed R.A.No.319/2009 and same was resisted by the legal representatives of the defendant. 3.4. The First Appellate, Court after considering the material on record, by its judgment and decree dated 29.11.2010 allowed the appeal and decreed the suit in entirety. Feeling aggrieved by the same, the present appeal is preferred by the legal representatives of the defendant. This court vide order dated 07.11.2016 has formulated the following substantial question of law: “Whether the judgment and decree of the First Appellate Court is perverse in not considering the provisions of Section 20 of the Specific Relief Act?” 4. I have heard the submissions made by Sri. J. S. Shetty, learned counsel appearing for the appellants and Sri. Sriharsh A Neelopant, learned counsel appearing for the respondent. - 6 - NC: 2025:KHC-D:6073 RSA No. 6015 of 2011 5. Sri. J. S. Shetty, learned counsel appearing for the appellants has argued that the sale agreement was executed on 18.03.1991 and suit is filed during 1997 and therefore, as per Section 3 of the Limitation Act, the suit is barred by limitation. It is also contended by the learned counsel appearing for the appellants that the daughters of the defendant were not made as parties to the proceedings and accordingly, the suit ought to have been dismissed on the ground of non-joinder of necessary parties. Accordingly, sought for interference of this Court. 6. In order to buttress his arguments, the learned counsel appearing for the appellants places reliance on the judgment of the Hon’ble Supreme Court in the case of Punjab And Sind Bank v Frontline Corporation Ltd1 and contended that the relief of discretionary in nature has to be considered taking into consideration the hardship of the parties. 7. Learned counsel appearing for the appellants has also places reliance on the judgment of the Hon’ble Supreme Court in the case of Ramkant Ambalal Choksi v. Harish 1 (2023) 16 SCC 331 - 7 - NC: 2025:KHC-D:6073 RSA No. 6015 of 2011 Ambalal Choksi and others2 with regard to the discretionary power by the Trial Court in a suit for specific performance. Accordingly, sought for interference of this Court. 8. Per contra, learned counsel appearing on behalf of the respondent refers to the Section 3 of the Limitation Act and contended by referring to the agreement of sale dated 18.03.1991 wherein the period has not been fixed for specific performance of agreement. By referring to Article 54 of the Limitation Act, he contended that the defendants have refused to execute the registered sale deed vide reply notice dated 29.03.1997 and therefore, the suit is filed within three years from the date of refusal by the defendant and therefore, sought for dismissal of the appeal. 9. Insofar as considering the daughters of the defendant were not made as necessary parties, he refers to the finding recorded by the Trial Court on Issue No.6 and argued that the said issue has been held against the defendant and same has reached finality and therefore, the said aspect of the matter cannot be considered. 2 2024 SCC OnLine SC 3538 - 8 - NC: 2025:KHC-D:6073 RSA No. 6015 of 2011 10. In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below. It is not in dispute that the plaintiff and defendants are the close relatives as their respective husbands are brothers. The plaintiff and defendant and one Charantayya had 1/3rd share each in the suit schedule property. On careful examination of the sale agreement dated 18.03.1991 (Ex.P2) wherein it is stated that the possession of the property has been given to the plaintiff. It is also stated at Clause 3 and 4 as under: “(3) ¸ÀzÀgÀ Rjâ ¥ÀvÀæªÀ£ÀÄß £À£Àß ¤ªÀÄä C£ÀÄPÀÆ° ¥ÀæPÁgÀ £ÉÆAzÀ ªÀiÁr¸ÀvÀPÀÌzÀÄÝ. d«ÄäAiÀÄ PÀ§eÁ EAzÉà PÉÆnÖzÉ. (4) ¸ÀzÀgÀ d«ÄãÀ ¤ªÀÄä ºÉÆvÀð ¨ÉÃgÉ AiÀiÁgÀUÀÆ §gÀPÉÆnÖgÀĪÀÅ¢®è.” 11. Nothing is reflected in the agreement of sale with regard to period for execution of the registered the sale deed. In that view of the matter, taking into consideration the language contemplated in Article 54 of the Limitation Act, wherein it is stated that the period of limitation would be three years from the date fixed term for the performance of the agreement and in the absence of the same, the date of refusal - 9 - NC: 2025:KHC-D:6073 RSA No. 6015 of 2011 for execution of registered sale deed by the defendant which coming to the knowledge of the plaintiff has to be considered. This aspect of the matter was considered by the Hon’ble Supreme Court in the case of A. Valliammai v. K.P. Murali and others3 wherein, at paragraph 27, it reads as under: “27. For the aforesaid reasons, the 3-year limitation period to file a suit for specific performance commenced as early as when the K. Sriram had filed suit for injunction on 15.07.1991. A. Valliammai’s reply dated 09.08.1991 (Exhibit A- 7) or reply to rejoinder dated 16.09.1991 (Exhibit S-14) were again sufficient written notice to K. Sriram of her refusal and unwillingness to perform the agreement to sell (Exhibit A-1). The limitation period of three years under the second part of Article 54, which is from the date when the party had notice of the refusal by the other side, had expired when the suit for specific performance was filed on 27.09.1995. Suit in O.S. No. 21 of 2004 is barred by limitation.” (Emphasis by me) 12. Taking into consideration the language employed under Article 54 of the Limitation Act and the judgment of the 3 AIR 2023 SC 4375 - 10 - NC: 2025:KHC-D:6073 RSA No. 6015 of 2011 Hon’ble Supreme court in the above case, I am of the view that the judgments referred to by the learned counsel appearing for the appellants cannot be made applicable to the case on hand. Though it is contended by the learned counsel appearing for the appellants that as per Section 3 of the Limitation Act, it is the duty of the Court to look into the delay and laches on the part of the plaintiff to approach the Court in the earlier period, it is also to be noted here that the plaintiff has paid substantial advance amount of ₹16,000/- out of total consideration of ₹18,000/- and has to pay remaining amount of ₹2,000/- to the defendant. It is also to be noted here that, in reply dated 29.03.1997, the defendant has denied the execution of the sale agreement. In that view of the matter, there is no substance in the arguments advanced by the learned counsel appearing for the appellants. 13. Insofar as the second limb of argument with regard to non-joinder of necessary parties is concerned, the Trial Court has already given a finding on Issue No.6 and therefore, though it was open for the appellants under Order XLI Rule 22 of CPC to urge it, the same cannot be accepted on the sole ground that the plaintiff and defendants are closely related as - 11 - NC: 2025:KHC-D:6073 RSA No. 6015 of 2011 their husbands are brothers, and therefore, the said aspect of the matter cannot be considered at this length of time as no averment has been made in this regard before the Trial Court and same was not urged before the First Appellate Court. In that view of the matter, the substantial question of law framed above favours the plaintiff, since the First Appellate Court in entirety has decreed the suit by directing the defendant to receive the balance sale amount and to execute the registered sale deed. In the result, the appeal fails. 14. In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. Sd/- (E.S.INDIRESH) JUDGE YAN CT-MCK List No.: 1 Sl No.: 33