- 1 - NC: 2025:KHC-D:3216 RSA No. 5570 of 2013 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 18TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 5570 OF 2013 (SP) BETWEEN: 1. MALLIKARJUNA ACHRI S/O LATE SUBANNA AGE: 48 YEARS, R/O. KAMPLI, TQ: HOSPTE, DIST: BELLARY-583132. 2. B. GANGADHAR ACHARI (SINCE DECEASED BY HIS LRS) A. B. VASANTKUMAR S/O GANGADHAR ACHARI AGE: 35 YEARS, R/O. ULOORU-583103. TQ. SHIRAGUPPA, DIST: BALLARI. 3. B. NAGARAJ ACHARI (SINCE DECEASED BY HIS LRS) A. SMT. PARVATHMMA W/O NAGRAJ ACHARI AGE: 40 YEARS, R/O UPPAR ONI, ULOORU-583103, TQ. SHIRAGUPPA, DIST. BALLARI. B. KUMAR VEERABHADRA S/O NAGRAJ ACHARI AGE. 15 YEARS, MINOR, REPRESENTED BY HIS NEXT FRIEND, APPELLANT NO.3. …APPELLANTS (BY SRI A.P.MURARI, ADVOCATE) AND: HANUMANTHAMMA W/O. BHOJARAJ AGE: 46 YEARS, RESIDENT OF KARUR-583121. TQ. SHIRGUPPA, DIST. BALLARI. …RESPONDENT (BY SRI ANOOP G. DESHPANDE, ADVOCATE) Digitally signed by V N BADIGER Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:3216 RSA No. 5570 of 2013 THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO MODIFY THE JUDGMENT AND DECREE IN RA NO.133/2012 DATED 11.03.2013 PASSED BY THE COURT OF THE II ADDITIONAL DISTRICT JUDGE AT BALLARI BY SETTING ASIDE THE FINDINGS ON ISSUES-1 TO 3 (POINT NO.1) AND RESTORE THE JUDGMENT AND DECREE DATED 19.06.2008 IN OS NO.38/2004 PASSED BY THE COURT OF THE CIVIL JUDGE (JR.DN.) AT SIRAGUPPA. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH) 1) This Regular Second Appeal is filed by the defendant challenging the judgment and decree dated 11.03.2013 passed in RA No.133 of 2012 on the file of the II Additional District Judge at Bellary, (for short, ‘First Appellate Court’) allowing the appeal in part and confirming the judgment and decree dated 19.06.2008 passed in OS No.38 of 2004 on the file of the Civil Judge, (Jr.Dn.) Siraguppa, (for short, ‘Trial Court’) dismissing the suit of the plaintiff. - 3 - NC: 2025:KHC-D:3216 RSA No. 5570 of 2013 2) For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court. 3) The plaint averments are that the husband of the plaintiff entered into an Agreement of Sale with the father of the defendants on 15.05.1987 to purchase the suit schedule property for total consideration of Rs.10,000/- and further on the date of the Sale Agreement dated 15.05.1987, the husband of plaintiff paid Rs.8,000/- as advance and remaining Rs.2,000/- was paid on the next date i.e. on 16.05.1987 to the father of the defendant. An endorsement is also made in the Sale Agreements. It is also stated that, possession of the suit schedule property was handed over by the father of the defendants to the husband of the plaintiff. It is further stated in the plaint that, the husband of the plaintiff died on 20.03.2002 and thereafter, the plaintiff caused legal notice dated - 4 - NC: 2025:KHC-D:3216 RSA No. 5570 of 2013 16.08.2001 to the defendants seeking registration of the Sale Deed, and same was denied by the defendants in their reply dated 29.08.2001. Hence, plaintiff has filed OS No.38 of 2004, seeking the relief of specific performance of the contract. 4) After service of summons, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of the defendants that father of the defendants never entered into Agreement of Sale with the husband of the plaintiff and the suit is filed beyond inordinate delay of 17 years and that apart, the suit property is the granted property to the father of the defendants and in view of prohibition of sale, the suit property should not have been subject matter in the Sale Agreement and accordingly, sought for dismissal of the suit. - 5 - NC: 2025:KHC-D:3216 RSA No. 5570 of 2013 5) On the basis of the rival pleadings, the trial Court has formulated issues for its consideration. 6) In order to establish their case, plaintiff examined three witnessed as PW1 to PW3 and got marked 31 documents as Exs.P1 to P31. On the other hand, defendants examined three witnesses DW1 to DW3 and produced 14 documents as Exs.D1 to D14. 7) The Trial Court, after considering the material on record, by its judgment and decree dated 19.06.2008 dismissed the suit of the plaintiff and being aggrieved by the same, the plaintiff preferred RA No.133 of 2012 on the file of First Appellate Court. The said appeal was resisted by the defendants. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 11.03.2013 allowed the appeal in part and confirmed the rejection of the suit for the relief of specific performance. - 6 - NC: 2025:KHC-D:3216 RSA No. 5570 of 2013 8) Being aggrieved by the finding recorded by First Appellate Court on Issue Nos.1 to 3, the defendants/appellants have preferred this Regular Second Appeal under Section 100 of CPC. 9) This court vide order dated 23.08.2023 formulated the following substantial question of law for its consideration i) “Whether the First Appellate Court was justified in allowing the appeal in part and recording finding that issue Nos.1 to 3 framed by the Trial Court were answered in the affirmative and issue Nos. 4 to 8 were answered by the trial Court in the negative were affirmed when the suit itself was not maintainable on the ground of the prohibition of alienation under the Karnataka Certain Inams Abolition Act, 1977 as the suit property was admittedly a service inam land ? - 7 - NC: 2025:KHC-D:3216 RSA No. 5570 of 2013 10. I have heard Sri A.P. Murari, learned counsel for the appellants and Sri.Anoop G. Deshpande, learned counsel appearing for the respondent. 11. Sri, A.P. Murari learned counsel for the appellants submitted that, the First Appellate Court has committed an error in misconstruing the recital the Agreement of Sale dated 15.05.1987 (Ex.P1) and Endorsement dated 16.05.1987 (Ex.P2). It is also argued by the learned counsel appearing for the appellants that, since, the prohibition was operating against any alienation that may be made by the grantee, on account of the fact that the land is granted to the father of the defendants on 05.03.1987 and therefore, it is argued that, the First Appellate Court has committed an error in interfering with the finding recorded by Trial Court on issue Nos.1 to 3 and accordingly, learned counsel appearing for the appellants sought for interference of this Court. It also - 8 - NC: 2025:KHC-D:3216 RSA No. 5570 of 2013 submitted by the learned counsel appearing for the appellants that, even if such a void Sale Agreement is existing insofar as the Inam land is concerned, the suit is filed after 17 years, based on the Sale Agreement and same is void ab-initio and therefore, finding recorded by First Appellate Court requires to be interfered with in this appeal. 12. Per contra, Sri. Anoop G. Deshpande, learned counsel for the respondent sought to justify the finding recorded by the First Appellate Court on issue Nos.1 to 3. He further argued that as the father of the defendants delivered the possession of the suit schedule property to the husband of the plaintiff on the date of execution of the Agreement of Sale, dated 15.05.1987 and therefore, the finding recorded by First Appellate Court requires to be affirmed in this appeal. - 9 - NC: 2025:KHC-D:3216 RSA No. 5570 of 2013 13. Heard the learned counsel appearing for both the parties and on careful examination of the finding recorded by both the courts below, it is the case of the plaintiff that, the husband of the plaintiff had entered into Agreement of Sale with father of the defendants on 15.05.1987, agreeing the purchase the suit schedule property for total consideration of Rs.10,000/-. It is also stated that, the husband of the plaintiff has paid Rs.8,000/- on 15.05.1987 and remaining consideration of Rs.2,000/- on 16.05.1987 and further the father of the defendants delivered the possession of the property in question in favour of husband of the plaintiff on the date of execution of the Agreement of Sale. The said aspect has been denied by the defendants. It is also not in dispute that the suit property has been granted to the father of the plaintiff, as per Ex.D1 (dated 05.03.1987). The said grant was made subject to terms and condition - 10 - NC: 2025:KHC-D:3216 RSA No. 5570 of 2013 whereby, the grantee is precluded from creating 3rd party interest within 15 years from the date of grant and in the backdrop of the said aspects, the Agreement of Sale (Ex.P1) was said to have been made within two months from the date of grant. In that view of the matter, the finding recorded by First Appellate Court cannot be accepted. Strangely, the Trial Court has formulated the issue relating to limitation. On careful examination finding recorded by both the courts below Agreement of Sale was executed on 15.05.1987 (Ex.P1) and the plaintiff caused notice on 16.09.2001 calling upon the defendants to execute the registered Sale Deed dated and nothing is shown in the plaint with regard to the limitation as the notice was issued on 16.08.2001, after 17 years after execution of Agreement of Sale. In that view of the matter following the declaration of the law made by the Hon'ble Supreme Court in the - 11 - NC: 2025:KHC-D:3216 RSA No. 5570 of 2013 case of C. S Venktaesh vs. A.S.C. Murthy (D) by Lrs and Others reported in (2020) 3 SCC 280, I am of the opinion that, the plaintiff has not proved the ingredients to be fulfilled in a suit for specific performance, and the Trial Court has rightly dismissed the suit, however, the First Appellate Court, on erroneous misconception of facts and law interfered with the finding recorded by Trial Court on Issue No.1 to 3 and therefore, the substantial question of law framed above favours the defendants. In the result, I pass the following: ORDER i) The Regular Second Appeal is allowed; ii) Judgment and decree dated 11.03.2013 in RA No. 133 of 2012 on the file II Additional District Judge, Bellary interfering with the finding - 12 - NC: 2025:KHC-D:3216 RSA No. 5570 of 2013 recorded by Trial Court on Issue Nos. 1 to 3 are hereby set aside; iii) Judgment and decree dated 19.06.2008 in OS No.38 of 2004 on the file of Civil Judge (Jr.Dn.), Siruguppa is hereby confirmed. Sd/- (E.S.INDIRESH) JUDGE SB CT:GSM List No.: 1 Sl No.: 23