- 1 - HC-KAR NC: 2025:KHC-D:10475 RSA No. 100498 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 19TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR SECOND APPEAL NO. 100498 OF 2025 (SP) BETWEEN: SMT. SUSHILA D/O. KRISHNA DHARMOJE AGE: 76 YEARS, OCC. AGRICULTURE/HOMEMAKER, R/O. NANDI, TQ. CHIKODI, DIST. BELAGVI 591244. …APPELLANT (BY SRI. U.J. HAVALDAR, ADVOCATE FOR SRI. SHIVRAJ S. BALLOLI, ADVOCATE) AND: 1. SHRI ANNAPPA KRISHNA DHARMOJE AGE: 63 YEARS, OCC. AGRICULTURE, R/O. NANADI, TQ. CHIKODI, DIST. BELAGAVI 591244. 2. SMT. AKKATAI W/O. SANJAY PATIL AGE: 39 YEARS, OCC. AGRICULTURE, R/O. BHIVASHI, TQ. CHIKODI, DIST. BELAGAVI 591241. 3. SMT. KALLAWWA W/O. DATTU DHARMOJE AGE: 50 YEARS, OCC. AGRICULTURE, R/O. NANDI, TQ. CHIKODI, DIST. BELAGAVI-591244. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 01.04.2025 PASSED IN R.A.NO.8/2011 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, CHIKODI, AND CONSEQUENTLY MODIFY THE JUDGMENT AND DECREE DATED 09.02.2011, PASSED IN O.S. NO.17/2007 ON Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.08.28 16:07:50 +0530 - 2 - HC-KAR NC: 2025:KHC-D:10475 RSA No. 100498 of 2025 THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, CHIKODI, PARTLY DECREEING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT AND ETC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) Heard learned counsel for the appellant/plaintiff on admission. 2. The appellant/plaintiff has preferred this regular second appeal against the Judgment and Decree dated 09.02.2011 passed by the Principal Civil Judge and JMFC, Chikodi (for short, ‘the trial Court’) in O.S.No.17/2007, which is confirmed by the Principal Senior Civil Judge, Chikodi (for short, ‘the first appellate Court’) in R.A.No.8/2011 as per the Judgment and Decree dated 01.04.2025. 3. Parties herein are referred to as per their rank before the trial Court. - 3 - HC-KAR NC: 2025:KHC-D:10475 RSA No. 100498 of 2025 4. Brief facts leading to filing of this appeal are that, the plaintiff has filed the suit for specific performance of contract as per the Agreement of Sale dated 31.05.1997 against the defendant. 5. Defendant appeared and contested the suit by filing the objections. Based on the pleadings, the trial Court framed 08 issues and one additional issue. To prove the case of plaintiff, four witnesses were examined as P.W.1 to P.W.4 and 16 documents were marked as Ex.P.1 to Ex.P.16. On closure of plaintiff’s evidence, defendant adduced his evidence as D.W.1 and two documents were marked as Ex.D.1 and Ex.D.2. 6. Having heard the arguments of both sides, the trial Court has decreed the suit of the plaintiff in part directing to return the earnest money and denied the relief of specific performance. Being aggrieved by the Judgment and Decree passed by the trial Court, the plaintiff preferred the appeal before the first appellate Court in R.A.No.8/2011, which came to be dismissed on - 4 - HC-KAR NC: 2025:KHC-D:10475 RSA No. 100498 of 2025 01.04.2025. Being aggrieved by Judgment and Decree passed by the trial Court as well as by the first appellate Court, the plaintiff has preferred this regular second appeal. 7. Learned counsel for the appellant/plaintiff would submit that the Judgment and Decree passed by the trial Court as well as the first appellate Court are contrary to the well established principles of law and facts of the case. The first appellate Court has not at all appreciated the evidence on record in proper and judicious manner and both Courts have erroneously held that the Agreement of Sale dated 31.05.1997 is hit by the Section 61 of the Karnataka Land Reforms Act, 1961 (for short, ‘the KLR Act, 1961’) and denied the relief of specific performance. It is further submitted that the Agreement of Sale was executed between the parties on 31.05.1997 pursuant to the original grant order dated 27.11.1981, as such the agreement in question has been executed after 15 years from the date of original grant order, the same was valid - 5 - HC-KAR NC: 2025:KHC-D:10475 RSA No. 100498 of 2025 and enforceable in the eye of law. It is also submitted that the order dated 27.11.1981 was set aside by this Court in a writ petition and matter was remanded back to the Land Tribunal for fresh consideration. However, the fact remains that as on the date of agreement, the order dated 27.11.1981 passed by the Land Tribunal was in operation and as such, the subsequent developments cannot negate the existing rights of the parties. On all these grounds he sought for formulation of substantial question of law. 8. The first appellate Court has assigned reasons for dismissing the regular appeal in paragraph Nos.11 to 16, which reads as under : “11. Point Nos.1 and 2:- In order to avoid the repetition of facts these points are taken together for common consideration. The short point which arises for consideration in this appeal is in regard to the bar contemplated under the provisions of Karnataka Land Reforms Act in alienation of property and thereby turning down the request of specific performance of contract. The Trial court has refused to grant the relief of specific performance of contract on the score - 6 - HC-KAR NC: 2025:KHC-D:10475 RSA No. 100498 of 2025 that as on the date of execution of agreement of sale the defendant was not the owner of suit property and he was only a tenant. The tenancy rights have been enlarged into ownership right by virtue of subsequent grant of property by the land Tribunal Chikodi. Thus the entire gamete of discussion is on the ownership of land at the time of agreement of sale. The plaintiff contends that the suit property has been granted to one Krishna Appu Dharmoje (father of plaintiff) and defendant Dattu Appu Dharmoji by the land Tribunal Chikodi by vide order dated 27/11/1981 and form No.10 was issued on 19/12/1981. Subsequently it was confirmed on re- adjudication by order dated 21/1/2004. Therefore on confirming of occupancy right by the subsequent order it goes back to the original order dated 27/11/1981. There is no bar of provisions of the Karnataka Land Reforms Act prohibiting the execution of agreement of sale. Thus she seeks to hold that the findings of trial court in declining the relief of specific performance of contract are palpably in correct. 12. The admitted facts are that the father of plaintiff Krishna Appu Dharmoji and the defendant herein Dattu Appu Dharmoji have filed Form No.7 seeking occupancy right. The Land Tribunal by - 7 - HC-KAR NC: 2025:KHC-D:10475 RSA No. 100498 of 2025 earlier order dated 27/11/1981 granted occupancy right in favour of said Krishna and Dattu to an extent of half share each. The form No.10 was also issued on 19/12/1981. The said order was challenged by the mother of plaintiff Smt.Sharubai before the Hon’ble High court of Karnataka in W.P.No.21474/1982. The Hon’ble High court of Karnataka by vide order dated 2/4/1986 pleased to allow the writ petition and set aside the order of Land Tribunal. The matter was remitted back to the Land Tribunal Chikodi. During pendency of said proceeding before the Land Tribunal the present agreement of sale dated 31/5/1997 came to be executed. Though the defendant has disputed the execution of agreement of sale, he has not challenged the findings of Trial Court in regard to the proof of said document. The Trial court has held that as on the date of agreement of sale the defendant was not the owner of suit property and application seeking occupancy right was pending before Land Tribunal. Admittedly the application filed by defendant and father of plaintiff seeking occupancy right was pending before Land Tribunal on remand by the Hon’ble High court of Karnataka. The land Tribunal by vide subsequent order dated 21/1/2004 granted the occupancy right to en extent of half share to the present defendant. Therefore there is no palpable error in - 8 - HC-KAR NC: 2025:KHC-D:10475 RSA No. 100498 of 2025 recording findings of fact that as on the date of agreement of sale the defendant was not the owner of suit property. The section 21 of Karnataka Land Reforms Act prohibits the sub - division, sub - letting and assignment of property. In the instant case the defendant has entered into agreement of sale in favour of defendant during pendency of application seeking grant of property. The said agreement is nothing short of assigning the right over suit property in favor of plaintiff. The plaintiff has contended that the defendant and her father were permanent tenant of suit property and they can enter the transaction as they wish. Therefore she has contended that the bar contemplated u/Sec. 21 of said Act does not prohibit the execution of agreement of sale. Though the father of plaintiff and the present defendant appears to be the brothers and permanent tenant of suit property they cannot enter into an agreement of sale parting away of their interest in favour of either of them or with third parties. They can divide the property and lease it out and create charge on it by mortgaging the same. But they cannot enter into an agreement by agreeing to convey the property which is against the purport of section 21 of Karnataka Land - 9 - HC-KAR NC: 2025:KHC-D:10475 RSA No. 100498 of 2025 Reforms Act. Therefore the very agreement of sale entered by the parties is in violation of section 21 of said Act. Therefore both the parties are equally guilty of entering the said illegal transaction during pendency of conferment of occupancy right over the same. 13. The next question which would crop up before court is as to whether the subsequent acquisition of right by the defendant by virtue of final order of Land Tribunal would carry the burden of complying the earlier agreement which was executed prior to acquisition of right. The agreement of sale in question itself void document which was executed against the statutory prohibition. Further more the right over suit property was not finally conferred on the executant of said document. Therefore the said document is void document which cannot be basis to grant the relief. The Hon’ble Supreme Court in the case of Smt.Narayanamma and another Vs. Sri Govindappa and others passed in Civil Appeal No.7630-7631/2019 dated 26/9/2019 while dealing with the similar situation of execution of agreement of sale in violation of section 61 of Karnataka Land Reforms Act has held that if the illegality is appearing on the face of record the court can dismiss the suit on the - 10 - HC-KAR NC: 2025:KHC-D:10475 RSA No. 100498 of 2025 principles of ‘ex turpi causa non oritur actio’. The Hon’ble Apex Court has held that no polluted hand shall touch the pure fountain of justice. It has further held that where parties are in illegal agreements or other transactions, courts of equity following the rule of law as to participators in common crime will not interpose to grant any relief, acting upon the maxim in pari delicto potior est conditio defendetis et posseidentis. Therefore the Hon’ble Apex Court has turn down the relief to the party who is guilty of entering illegal transaction. In the instant case also the plaintiff has entered into an agreement of sale during pendency of conferment of occupancy right and in violation of section 21 of Karnataka land Reforms Act which is void and illegal. Therefore she cannot enforce the said agreement even after the conferment of occupancy right in favour of defendant. 14. The learned counsel for respondent has argued that the transaction in question is also barred u/Sec.61 of Karnataka Land Reforms Act. According to him the final order of land Tribunal was passed on 21/1/2004. The agreement of sale was executed even before the final order is passed. As per section 61 of said Act the alienation of - 11 - HC-KAR NC: 2025:KHC-D:10475 RSA No. 100498 of 2025 granted property is prohibited for a period of 15 years from the date of final grant. Therefore on the said count also he seeks to non suit the plaintiff. On the other hand the learned counsel for appellant has also argued that the bar contemplated u/sec.61 of Land Reforms Act does not prohibit the execution of agreement of sale. It only prohibits the alienation of property. Therefore he has contended that there is no bar in execution of agreement of sale within the said period and enforcing the same after expiry of said stipulated period. Hence he has contended that there is no bar to enter the agreement of sale and enforcing the same after completion of stipulated period. He has relied upon the decision of Hon’ble High Court of Karnataka passed in W.P.No.464/2023. The plaintiff has also relied upon the division bench decision of Hon’ble High court of Karnataka before Trial Court reported in 2009 (1) property law decisions 158 (kar) in the case of Paratagouda Ningangouda Patil and others Vs. Guddappa and others. These two decisions have been relied upon to contend that there is no bar in entering the agreement of sale. The said decision would indicate that the bar contemplated u/sec.61 of Karnataka Land Reforms Act would only applicable to the alienation of property and not the execution of agreement of - 12 - HC-KAR NC: 2025:KHC-D:10475 RSA No. 100498 of 2025 sale. However the Hon’ble Supreme Court in the above said decision passed in the case of Smt. Narayanamma and another Vs. Sri Govindappa and others passed in Civil Appeal No.7630- 7631/2019 dated 26/9/2019 has held that the execution of agreement of sale is nothing short of alienation of property. Therefore the Hon’ble Supreme Court has held that such agreements are illegal and against the purported rule of statute. 15. The learned counsel for plaintiff has argued that the said period of fifteen years has to be computed from the date of original order passed by the Land Tribunal on 19/12/1981 and from the date of issuance of original form No.10 dated 19/12/1981. Therefore he seeks to compute the restriction period from the date of original order of Land Tribunal and from the date of issuance of from No.10. Admittedly the original order was challenged by the mother of very same plaintiff in the writ petition No.21474/1982. The Hon’ble High Court of Karnataka by order dated 2/4/1986 has set aside the order of Land Tribunal and remitted back the matter to the Land Tribunal. The Land Tribunal by final order dated 21/1/2004 has granted the occupancy right. The question before court is as to from which date the said restriction - 13 - HC-KAR NC: 2025:KHC-D:10475 RSA No. 100498 of 2025 period has to computed. The wordings used in section 61 are very clear that the said period has to be computed from the date of final order and not from the date of issuance of form No.10. The decision relied upon by the defendant before Trial Court reported in ILR 2002 KAR 3603 indicate laying down of law in regard to the starting date for computation of restriction period. The said decision clearly indicates that it is from the date of final order and not from the date of issuance of prescribed form. Therefore in the present case also the starting point of restriction period has to be computed from the date of final order and not from the date of original date of issuance of form No.10. The final order is passed on 21/1/2004. The plaintiff has filed this suit seeking enforcement of agreement of sale on 18/1/2007. The suit is filed within fifteen years from the date of final order of grant. 16. The Plaintiff may contend that the agreement of sale was executed before amendment of section 61 of said Act and therefore the bar contemplated under the amended section does not apply to him. The said contention also cannot be considered in the light of law laid down by Hon’ble High court of Karnataka in the said decision reported in ILR 2002 KAR 3603. The Hon’ble - 14 - HC-KAR NC: 2025:KHC-D:10475 RSA No. 100498 of 2025 High Court of Karnataka has examined the said contention also and held that the said amended statute applies to all transaction. Therefore the bar contemplated u/sec.61 of Karnataka Land Reforms Act clearly applies to the case of plaintiff. Therefore on this count also the plaintiff action is barred under law. Therefore, I hold that the the Trial Court has rightly held that the plaintiff is not entitled to the relief of specific performance contract under the said agreement of sale. The Trial Court has rightly exercised the discretion against the plaintiff. There is no palpable error forthcoming in the findings of Trial Court. Hence, I hold above point Nos.1 and 2 in the Negative.” 9. Upon perusal of the Judgments of both Courts, it reveals that both Courts have properly appreciated the evidence on record in accordance with law and facts. Additionally, it is relevant to mention the provision of Section 23 of the Indian Contract Act, 1872, which reads as under : - 15 - HC-KAR NC: 2025:KHC-D:10475 RSA No. 100498 of 2025 “23. What consideration and objects are lawful, and what not.-The consideration or object of an agreement is lawful, unless- It is forbidden by law, or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.” 10. In the case on hand, though there is a restriction under Section 61 of the KLR Act, 1961 the vendor has sold the property during pendency of the proceedings before the trial Court, therefore the transfer of this tenanted land is forbidden under Section 61 of the KLR Act, 1961. 11. For the aforesaid reason, I do not find any error, infirmity or illegality in the Judgment and Decree passed - 16 - HC-KAR NC: 2025:KHC-D:10475 RSA No. 100498 of 2025 by the trial Court which is confirmed by the first appellate Court and there are no grounds to formulate the substantial question of law. Hence, I proceed to pass the following : ORDER Appeal is dismissed as devoid of merits. In view of dismissal of appeal, pending applications, if any also stand dismissed. Sd/- (G BASAVARAJA) JUDGE CKK CT-CMU LIST NO.: 1 SL NO.: 61