The court upheld the validity of property sale agreements made with conscious acknowledgment of a statutory bar on alienation, affirming that possession under the agreements was sufficient for enforcing specific performance.

JUDGMENT :

H.P.Sandesh, J.

This matter is listed for admission and I have heard learned counsel for the appellants and learned counsel for caveator-respondent.

2. The factual matrix of case of the plaintiff before the Trial Court is that ‘A’ schedule property was assigned in favour of defendant in EDR:SR:1307/1994-95 dated 14.10.1998 and in ADS EDR (1) SR 253/2002-03 dated 21.06.2003 The defendant was residing at Udupi and employed there and he wanted to dispose of the property for his urgent needs. The defendant approached the plaintiff and agreed to sell the ‘A’schedule property for a sum of Rs.4,15,000/- and also entered into a written agreement of sale with the plaintiff dated 11.09.2004. The plaintiff was already in possession of the ‘A’ schedule property under an earlier agreement of sale. The plaintiff continued in possession of the property and the defendant agreed that the plaintiff shall be entitled to make any alterations in the suit property. The agreement was prepared in duplicate and the original is with the plaintiff along with original records. It is further contended that defendant also executed a General Power of Attorney dated 27.03.2005 before the Notary Public, Hebri empowering the husband of the plaintiff to construct new building, to raise loans, and to do various acts mentioned therein in view of the agreement of sale. Thereafter plaintiff invested huge amount, carried out the enormous improvements by erecting fence, raising fruit yielding trees, constructing house, well, etc. As the price of the property has been ascending considerably, defendant has been trying to get over the agreement of sale by hook or crook. The defendant has issued notice dated 04.06.2012 informing that aforesaid power of attorney is terminated. The plaintiff has sent a true reply dated 08.06.2012. There are two valuable jackfruit trees in the suit property and defendant is now threatening to cut and remove the said trees. The defendant is negotiating to sell the property on the basis of entries in record of rights and also to dispossess the plaintiff. Therefore, plaintiff issued legal notice on 26.02.2013 calling upon the defendant to refrain from interfering with possession and enjoyment of the ‘A’ schedule property. The defendant had sent a reply denying the agreement of sale and even alleging forgery and fabrication by the plaintiff. There was an earlier agreement of sale dated 29.06.1995 of the same property. The defendant has denied the same in the reply notice. On 24.03.2013 defendant brought outsiders to the property informing that he would sell the two jackfruit trees situated in the property and also brought some surveyor stating that he would put up fence around the house so as to prevent the plaintiff from using the remaining property. The defendant is permanently residing in Udupi. The plaintiff and her family are residing in the very same property and in the house bearing Door No. 6-18 of Hebri Village situated in the suit property. The defendant is denying the agreement of sale as well as possession of the plaintiff over the suit property.

3. It is also contended that bar against the sale of land of first item of plaint schedule property stipulated in the assignment order dated 02.01.1999 has expired. The defendant has agreed to sell the property to the plaintiff as per agreement of sale dated 19.11.2004 after the said period i.e., after 02.01.2014. The defendant has also agreed to sell the second item of plaint ‘A’ schedule property after 21.06.2018 i.e., after the period of 15 years as per the order of assignment dated 21.06.200