This appeal is filed by the appellant challenging the

judgment and decree passed in R.A.No.42/2011 by the I

Additional District and Sessions Jude, D.K., Mangaluru

confirming

the

judgment

and

decree

passed

in

O.S.No.173/1999 dated 23.02.2011 by the III Additional

Senior Civil Judge, Mangalore, D.K.

2.

The parties are referred to as per their status

and ranking before the trial Court. The appellant is plaintiff

and respondent is the defendant before the trial Court.

3. Brief facts of the case are as under:

It is the case of the plaintiff that the suit schedule

properties

belonged

to

Simon

Alphonso.

The

said

properties were granted in favour of him by the Land

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Tribunal vide order dated 30.08.1979. After the grant,

Simon Alphonso who was in need of money agreed to sell

the

suit

schedule

properties

to

the

plaintiff

for

consideration of Rs.90,000/-. The plaintiff agreed to

purchase the suit land for aforesaid consideration amount

and paid a sum of Rs.10,000/- towards part sale

consideration amount and the agreement came to be

executed on 02.01.1989 and it was agreed that the

balance consideration amount to be paid by the defendant

at the end of December 1989. As per the terms of

agreement, the plaintiff paid through cheques drawn from

the plaintiff's sister-in-law in the name of Simon Alphonso,

which has been credited to the account of Simon Alphonso

at Corporation Bank and the same was encashed by Simon

Alphonso and he had also executed an irrevocable power

of attorney in favour of the plaintiff duly attested before

the Notary. By virtue of agreement of sale and the

irrevocable power of attorney, the plaintiff is enjoying the

suit schedule properties and spent huge amount and made

improvements. It is contended that Simon Alphonso had

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entered into an agreement with the plaintiff's GPA holder

and brother in respect of other properties. He died about 3

years back leaving behind the defendant as his only legal

heir. It is contended that since the land was granted land

there was a bar of alienation to transfer the property for a

period of 15 years from the date of grant of form No.10. It

is contended that during the lifetime of Simon Alphonso

and after his death, the defendant has not obtained form

No.10 and the defendant was fully aware of execution of

an agreement of sale and the defendant was one of the

attesting witness. It is contended that suppressing the

agreement, the defendant at the instance of one Ruffs

Robert

D'Souza

filed

a

false

injunction

suit

in

O.S.No.218/1999 against the plaintiff's brother and

mother. Since the defendant was making arrangements to

sell the property through R.R. D'Souza, the plaintiff filed

an injunction suit in O.S.No.264/1999. It is contended that

as per the Karnataka Land Reforms Amendment Act

34/1998 which was published in the Gazette Notification

on 05.12.1998 and the bar of alienation in respect of

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declaration of properties is to be reckoned for a period of

15 years from the date of order of the Land Tribunal and

not from the date of issuance of from No.10. Since 15

years has been lapsed from the date of order, the plaintiff

requested the defendant to execute a registered sale

deed. But the defendant did not perform her part of

contract. The plaintiff got issued a legal notice dated

13.03.1999 the defendant calling upon her to perform her

part of contract. The defendant gave reply to the said legal

notice denying the execution of agreement of sale. Hence,

cause of action arose for the plaintiff to file a suit for

specific performance of contract.

4.

The

defendant

filed

written

statement

contending that the suit is not maintainable. The plaintiff is

none other than the successor in interest of late Baptist

Alphonso, the borther of the defendant's husband Simon

Alphonso and taking advantage of such relationship, the

plaintiff had fabricated the document and on the strength

of fabricated document, the plaintiff has filed this suit

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against the defendant. It