- 1 - HC-KAR NC: 2025:KHC:31540 RSA No. 888 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 888 OF 2015 (SP) BETWEEN: 1. SMT. BYRAMMA DAUGHTER OF K T NANAJAPPA, AGED BOUT 54 YEARS, RESIDING AT KUDUVATHI VILLAGE, NANDI HOBLI, CHIKCKBALLAPUR TALUK, PIN-562 101. …APPELLANT (BY SRI. SRINIVASAN T., DVOCATE) AND: 1. SRI. K.C. MUNIKRISHNAPPA SON OF CHIKAMARAPPA, AGED ABOUT 60 YEARS, RESIDENT OF KUDUVATHI VILLAGE, NANDI HOBLI, CHICKBALLAPUR TALUK, PIN-562 101. …RESPONDENT (BY SRI. M.S.VENUGOPAL, ADVOCATE) Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:31540 RSA No. 888 of 2015 THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT DATED 29.01.2015 PASSED IN R.A. NO.136/2013 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE & JMFC, CHICKBALLAPUR, ALLOWING THE APPEAL AND FURTHER SET ASIDE THE JUDGMENT AND DECREE DATED 19.06.2013, PASSED IN O.S. NO.249/2008, ON THE FILE OF THE PRL. CIVIL JUDGE & JMFC, CHICKBALLAPUR, AND CONSEQUENTLY, DISMISS THE SUIT. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by the defendant assailing the Judgment and Decree dated 29.01.2015 in R.A.136/2013 on the file of the Addl. Senior Civil Judge & JMFC, Chickballapur, allowing the appeal and setting aside the Judgment and Decree dated 19.06.2013 in O.S.No.249/2008 on the file of Prl. Civil Judge and JMFC, Chickballapur, decreeing the suit of the plaintiff. - 3 - HC-KAR NC: 2025:KHC:31540 RSA No. 888 of 2015 2. For the sake of convenience, parties are referred with reference to their status before the Trial Court. 3. It is the case of the plaintiff that, on 28.08.1999, the plaintiff, the defendant, and father and mother of the defendant, have entered into an agreement of sale to sell the suit schedule property in favour of the plaintiff for total sale consideration of Rs.75,000/- and on the very same day, the defendant received a sum of Rs.40,000/- in the presence of the witnesses. It is the case of the plaintiff that, the defendant had acquired the property in a family partition on 15.04.1990. It is further stated that, the defendant has informed the plaintiff with regard to the pendency of revenue and civil litigations in respect of the subject matter of the suit. It is also stated that the plaintiff was always ready and willing to execute the registered sale deed, however, the defendant has prolonged the execution of the sale transaction and caused delay, hence, the plaintiff has filed suit in O.S.No.249/2008. 4. On service of notice, the defendant entered appearance and filed written statement alleging that the agreement of sale - 4 - HC-KAR NC: 2025:KHC:31540 RSA No. 888 of 2015 dated 28.08.1999 is a concocted document and accordingly, sought for dismissal of the suit. 5. The Trial Court, based on the pleadings on record, formulated issues. In order to establish his case, plaintiff has examined himself as P.W.1 and got examined one more witness as P.W.2 and produced 11 documents and same were marked as Exs.P1 to P11. No oral or documentary evidence was produced by the defendant. The Trial Court after considering the material on record, by its Judgment and Decree dated 19.06.2013, decreed the suit in part and rejected the prayer for specific performance of the contract. Feeling aggrieved by the same, plaintiff has preferred R.A.No.136/2013 against the defendant, before the First Appellate Court. The defendant though served, did not appear before the First Appellate Court. The First Appellate Court by its Judgment and Decree dated 29.01.2015, allowed the appeal and directed the defendant to execute the registered Sale Deed within three months from the date of the Judgment. Feeling aggrieved by the same, the defendant has preferred this appeal. - 5 - HC-KAR NC: 2025:KHC:31540 RSA No. 888 of 2015 6. This Court, vide order dated 21.03.2019, formulated the following substantial questions of law: " 1. Having regard to Section 3 of the Limitation Act and the fact that in Ex.P1 agreement of sale dated 28.8.1999, three months' time was stipulated for performance of the contract, whether the First Appellate Court was right in not considering the question of limitation in filing the suit? 2. Having regard to Section 16(c) of the Specific Relief Act, whether the First Appellate Court was right in granting decree for specific performance of agreement of sale dated 28.8.1999, stipulated three months' time for performing the contract, but the suit was filed in the year 2008?" 7. I have heard Sri. Srinivasan T., learned counsel for the appellant/defendant and Sri. M.S. Venugopal, learned counsel for the respondent/plaintiff. - 6 - HC-KAR NC: 2025:KHC:31540 RSA No. 888 of 2015 8. Sri. Srinivasan T., learned counsel for the appellant/defendant contended that, the Judgment and Decree passed by the First Appellate Court is an ex-parte order as the defendant has not been represented in the matter. It is further contended that, the sale agreement produced at Ex.P1 is a concocted document and even otherwise, the suit is barred by limitation and the said aspect of the matter was not considered by the First Appellate Court, accordingly, sought for interference of this Court. 9. It is also submitted by the learned counsel for the appellant that the Trial Court has not framed issue relating to limitation and therefore, sought for interference of this Court. 10. Per contra, Sri. M.S. Venugopal, learned counsel appearing for the respondent/plaintiff, refers to the proceedings in O.S.No.53/2003 (Exs.P5 and P6) as well as the revenue proceedings at Exs.P8 to P10, and contended that, the finding recorded by the First Appellate Court is just and proper, since the defendant had agreed to rectify the revenue entries as per Ex.P1 and thereafter plaintiff caused legal notice at Ex.P2 and same was replied at Ex.P3 and therefore, it is submitted by the - 7 - HC-KAR NC: 2025:KHC:31540 RSA No. 888 of 2015 learned counsel appearing for the respondent/plaintiff, that the finding recorded by the First Appellate Court, requires to be confirmed in this appeal. 11. In the light of the submissions made by the learned counsel appearing for the parties, on careful examination of the averments made in the written statement, wherein, at paragraph No.6, the defendant had taken a plea that the suit is barred by limitation. Undisputedly, there is no issue framed by the Trial Court relating to this plea in the written statement. It is also argued by the learned counsel for the appellant that, the defendant has not adduced oral or documentary evidence before the Trial Court and that apart, the defendant was placed ex-parte before the First Appellate Court. Therefore, I am of the view that, ends of justice would be met if the matter is remanded to the Trial Court for fresh consideration. It is also to be noted from the agreement dated 28.08.1999, wherein it is stated that possession of the schedule property has to be handed over to the plaintiff by the defendant and further, the defendant has raised plea at Ex.P3 with regard to limitation and - 8 - HC-KAR NC: 2025:KHC:31540 RSA No. 888 of 2015 in that view of the matter, appeal is required to be allowed by remitting the same to the Trial Court for fresh consideration. 12. Accordingly, the substantial questions of law framed above have to be taken into consideration for the purpose of remanding the matter to Trial Court for fresh consideration. 13. In the result, I pass the following: (i) The Regular Second Appeal is allowed. (ii) The Judgment and Decree dated 29.01.2015 in R.A.No.136/2013 on the file of the Addl. Senior Civil Judge & JMFC, Chickballapur, is hereby set aside. (iii) The Judgment and Decree dated 19.06.2013 in O.S.No.249/2008 on the file of the Prl. Civil Judge and JMFC, Chickballapur, is hereby set aside. (iv) The matter is remanded to the Trial Court for fresh consideration in the light of the observations made above. (v) The Trial Court is directed to frame additional issue relating to limitation based on averments in written statement - 9 - HC-KAR NC: 2025:KHC:31540 RSA No. 888 of 2015 filed by the defendant and take decision in the matter, in accordance with law. (vi) All contentions of the parties are kept open. (vii) As the parties are represented before this Court through their learned counsel, parties are directed to appear before the Trial Court on 23.09.2025, without waiting for notice from the Trial Court. Upon their appearance, the Trial Court is directed to dispose of the matter considering the observations made in this appeal, in accordance with law, at the earliest. SD/- (E.S.INDIRESH) JUDGE sac List No.: 2 Sl No.: 20