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IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 31^ST DAY OF JANUARY 2020

BEFORE

THE HON’BLE MR. JUSTICE ASHOK S. KINAGI

REGULAR SECOND APPEAL No. 1225 OF 2004 (SP)

BETWEEN

SMT.KALA SARASWATHI

W/O.KALA SATYANARAYANA

AGED 36 YEARS, OCC: AGRICULTURE

R/O. VIDYANAGAR CAMP,

GANGAVATHI.

... APPELLANT

(BY SRI.S G KADADAKATTI, ADVOCATE)

AND

G CHANDRASHEKAR REDDY

S/O. VENKATREDDY

AGED 29 YEARS, OCC: AGRICULTURE

R/O. BAPIREDDY CAMP, GANGAVATHI.

... RESPONDENT

(BY SRI.SHIVARAJ S. BALLOLI AND

SRI. RAMESH I. ZIRALI, ADVOCATES.)

THIS RSA IS FILED U/SEC 100 R/W ORDER 42 RULE 1

CPC AGAINST THE JUDGMENT AND DECREE DATED : 5.10.2004

PASSED IN RA.NO. 5/02, ON THE FILE OF THE CIVIL JUDGE

(SR.DN.), GANGAVATHI, ALLOWING THE APPEAL AND SETTING

ASIDE THE JUDGMENT AND DECREE DATED:24.2.1995 PASSED

IN

OS.NO.

129/89,

ON

THE

FILE

OF

THE

MUNSIFF,

GANGAVATHI.

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THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE

COURT MADE THE FOLLOWING:

JUDGMENT

This appeal is filed by the defendant challenging

the judgment and decree dated 05.10.2004 passed in

R.A. No.5 of 2002 by the learned Civil Judge (Senior

Division), Gangavathi.

2.

For the purpose of convenience, the parties

are referred to as per their ranking before the trial

court.

3.

Brief facts of the case are that the plaintiff

has filed a suit for specific performance of contract

contending that the defendant has entered into an

agreement of sale on 16.09.1983 with the plaintiff and

the defendant has received part consideration amount

of Rs.3,050/- as an earnest money and agreed to

receive the balance consideration amount at the time

of registration of the sale deed. It was agreed that

the defendant should execute a registered sale deed

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on or before 31.12.1983 and delivered the possession

of the suit land to the extent of 2½ acres which was in

possession

of

the

defendant

to

the

plaintiff.

Remaining land was encroached by one Krishnappa

and Fakiramma, the adjoining land owners. It was

agreed that defendant should deliver the remaining

portion to the plaintiff after Krishnappa delivers the

possession. The defendant could not deliver the full

extent of land as some portion of the land was

encroached by the adjoining land owners. The

defendant agreed to get the land surveyed by the

competent authority and will deliver the remaining

land free from all encroachments. The plaintiff claims

that he is in possession of 4 acres 6 guntas as the

same is free from encroachments since six months.

Since the defendant could not keep all the records

ready for registration before 31.12.1983, she has

agreed that whenever the records are ready, she will

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intimate the plaintiff and thereafter the plaintiff should

get the land registered within one week from such

intimation. One of condition was got inserted in the

original agreement of sale deed on 31.12.1983.

Subsequently,

the

land

was

got

measured

on

31.07.1984

by

the

plaintiff

himself.

After

measurement it was noticed that an area of 1 acre 25

guntas had been encroached by the adjoining land

owner and the plaintiff intimated this fact to the

defendant by sending a legal notice to her in the

month of August calling upon her to get back the

encroached portion of land and to execute the

registered sale deed of the entire suit land itself from

the date of receipt of the notice. The defendant has

sent a letter dated 08.08.1984 to the plaintiff calling

upon him to make payment of remaining sale

consideration amount and to get a registered sale

deed completed within a week. The plaintiff insisted

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for removal of encroachment before registration of

sale deed but the defendant was not yet ready to do

so. The plaintiff got issued a legal notice on

06.08.1986 calling upon the defendant to receive the

balance consideration amount and to execute a

registered sale deed. In spite of service of notice,