The plaintiff, in a suit for specific performance of contract, is the appellant in this second appeal. Suit was decreed with cost and the defendant was directed to execute a registered sale deed as per the Agreement of Sale in favour of the plaintiff by receiving the balance sale consideration of Rs. 15,000/-. The appeal filed by the defendant was allowed and the suit was dismissed by the Lower Appellate Court. Assailing the said Decree, this second appeal was filed by the plaintiff. For convenience, the parties will be referred with reference to their rank in the suit.

2. The plaintiff’s case, in brief is that:

The suit schedule property was granted to the defendant on 21.07.1994 and he being the absolute owner, executed an agreement dated 17.11.2004, agreeing to sell the suit schedule property for Rs. 30,000/- and received Rs. 15,000/- as advance amount. It was stated that, since there was ‘Non Alienation Clause’ for 15 years in the Grant Certificate, the defendant agreed to execute the Sale Deed by receiving the balance sale consideration amount, after the expiry of the ‘Non Alienation Period’. The sale deed having not been executed even after a demand notice was served i.e., after the expiry of ‘Non-Alienation Period’, the suit was filed.

3. The defendant filed written statement and denied the averments made in the plaint and contended that the agreement, even if it is assumed to have been executed, is void, since the suit schedule property is not alienable for a period of 15 years. Bar of limitation and other defences were also taken.

4. On the said pleadings the following issues were framed:

1. Whether the plaintiff proves that the defendant has executed agreement of sale on 17.11.2004 agreeing to sell the suit schedule property for a sum of Rs.30,000/-?

2. Whether the plaintiff proves that, the defendant has received Rs.15,000/- on the date of agreement?

3. Whether the plaintiff is ready and willing to perform his part of the contract?

4. Whether the plaintiff proves his possession over the suit schedule property?

5. Whether the suit is barred by limitation?

6. Whether the defendant proves that, the alleged agreement is void as contended in para No.17 of the written statement?

7. Whether the plaintiff is entitled for the reliefs as prayed for?

8. What order or decree?

5. Both parties have led oral and documentary evidence. After considering the evidence, Trial Court answered issue Nos.1, 2, 3, 4 and 7 in the affirmative and issue Nos.5 and 6 in the negative and decreed the suit. Feeling aggrieved, defendant filed the appeal, under S.96 of CPC.

6. Lower Appellate Court raised the following points for determination:

1. Whether the trial court has not properly and correctly appreciated the oral and documentary evidence?

2. Whether the judgment and decree of the trial court calls for any interference by this court?

3. What order OR decree?

7. After hearing the arguments of the learned advocates and by relying upon a judgment dated 23.09.2010 passed in RSA No.1244/2004, Lower Appellate Court has held that the sale agreement between the parties is not a valid document, since it was entered into during the ‘Non Alienation Period’ and as such, it is opposed to public policy and the contract is void under S.23 of the Indian Contract Act.

8. Sri J.N. Naveen, learned advocate, in support of the appeal, contended that the Lower Appellate Court’s approach was clearly erroneous. He submitted that the Judgment dated 23.09.2010 passed in RSA No.1244/2004, on which reliance was placed, had been set aside on 22.07.2013 in R.P.No.82/2013. He submitted that the Lower Appellate Court has relied on a Judgment, which did not exist on the date the appeal was allowed. He further submitted that the Order passed in R.P.No.82/2013 has not been considered by the Lower Appellate Court. By placing reliance on the Division Bench decisions in (i) PARVATAGOUDA NINGANAGOUDA PATIL Vs. GUDDAPPA AND ANOTHER, (2009) 1 KAR.L.J. 547 (DB) AND (ii) SYED ZAHEER AND OTHERS