JUDGMENT : The defendant in O.S.No.176/1999 on the file of the Principal Civil Judge (Jr.Dn.) & JMFC, Anekal, has preferred this second appeal challenging the judgment and decree passed by the Fast Track Court-III, Bangalore Rural District, Bangalore, in R.A.No. 60/2005, wherein it has allowed the appeal filed by the plaintiffs and set aside the judgment and decree passed by the trial Court in O.S.No.176/1999 and consequently, decreed the suit of the plaintiffs for specific performance of agreement to sale, by directing the defendant to execute sale deed relating to the plaint schedule property in favour of the LRs. of the original plaintiff by receiving the balance sale consideration of Rs.150/. 2. Heard the learned Counsel for the appellant/defendant and the learned Counsel for the respondents/plaintiffs. Perused the judgments and decrees passed by the Courts below including the lower Court records. 3. Sri. C.Pattabhiram, the learned Counsel appearing for the appellant/defendant submits that the judgment and decree passed by the first appellate Court is opposed to law, facts, material and all probabilities of the case. Learned Counsel submits, the first appellate Court has wrongly set aside the judgment and decree passed by the trial Court without appreciating the position of law and evidence on record. Learned Counsel submits, the alleged sale agreement entered into during the subsistence of legal bar in Prevention of Fragmentation and Consolidation of Holdings Act, for sale of fragmented land is illegal and the alleged sale agreement is not enforceable in law and hence the judgment and decree passed by the first appellate Court is liable to be set aside. Learned Counsel submits, the view taken by the first appellate Court that transaction does not create fragmentation and it results in augmentation is totally new to the law. Learned Counsel submits, suit filed by the plaintiff after three years from the date of repealing of Fragmentation Act is not maintainable and on this ground also the judgment and decree passed by the first appellate Court is liable to be set aside. Learned Counsel submits, plaintiff has not proved his willingness and readiness from the date of his alleged agreement and hence, suit filed by the plaintiff is not maintainable. Learned Counsel submits, plaintiff has not proved his willingness and readiness from the date of his alleged agreement and hence, suit filed by the plaintiff is not maintainable. With the above grounds, learned Counsel for the appellant prays for allowing the appeal by setting aside the judgment and decree passed by the first appellate Court by answering the substantial questions of law framed in the memorandum of appeal in favour of the appellant. 4. Sri. L. Rajanna, learned Counsel appearing for the plaintiffs/respondents submits, that the appellant having not preferred any appeal challenging the judgment and decree passed by the first appellate Court in dismissing his cross appeal, cannot question the findings of the trial Court on issue Nos. 1, 2 and 3. Learned Counsel submits, in the prayer column of the appeal, the appellant has expressly stated that he is not challenging the judgment and decree passed by the first appellate Court in the cross appeal. Thereby he submits, the findings of the trial Court on issue Nos. 1, 2, 3 and 4 have become final and cannot be reopened. Learned Counsel submits, judgment and decree passed by the first appellate Court is based on proper reappreciation of facts, circumstances and material evidence on record. Learned Counsel submits, in the facts and circumstances of the case, the first appellate Court was justified in holding the agreement of sale executed by the defendant in favour of the plaintiff is not hit by the provisions of Sections 5 and 6 of the Fragmentation Act. Learned Counsel submits, there is no illegality or infirmity in the judgment and decree passed by the first appellate Court on issue regarding fragmentation, warranting interference of this Court. With the above grounds, he prays for dismissal of the appeal. 5. The case of the plaintiffs is that the defendant who is his brother had entered into a contract of sale with the plaintiff on 02-11-1981 agreeing to sell the suit property in Sy.No. 111/4 measuring 1 acre 1 gunta, situated at Mahal Chowdadenahalli village, Sarjapura Hobli, Anekal taluk, for a sale consideration of Rs.1,550/. 5. The case of the plaintiffs is that the defendant who is his brother had entered into a contract of sale with the plaintiff on 02-11-1981 agreeing to sell the suit property in Sy.No. 111/4 measuring 1 acre 1 gunta, situated at Mahal Chowdadenahalli village, Sarjapura Hobli, Anekal taluk, for a sale consideration of Rs.1,550/. On the date of execution of the agreement of sale, the plaintiff had paid a sum of Rs.1,400/to the defendant towards advance sale consideration amount and defendant had duly acknowledged the receipt of advance sale consideration and delivered the possession of the suit property in favour of the plaintiff on the date of agreement to sale itself. It is further case of the plaintiffs that since the Fragmentation Act was in force, the sale deed could not be executed and after repeal of Fragmentation Act, the defendant prolonged to get the sale deed executed. Hence, plaintiff had issued a legal notice calling upon the defendant to execute the sale deed. But in spite of receipt of notice, the defendant had failed to execute the registered sale deed in favour of the plaintiff. The plaintiff had expressed his readiness and willingness to perform his part of the contract by paying balance sale consideration amount, but the defendant had not come forward to get the sale deed executed in favour of the plaintiff. Thus plaintiff had filed the present suit. 6. That on service of summons, defendant appeared through his Counsel and filed his written statement. The defendant in his written statement has admitted that plaintiff is his elder brother, but he has denied the execution of agreement to sale dated 02-11-1981 in respect of the suit property. He has contended that suit property was purchased jointly by the defendant and his two other brothers and the plaintiff was looking after the property for himself and on behalf of this defendant and other brother. The defendant was working as a mason and the other brother was in service. He has further contended that, he and his brothers wanted to cultivate their properties on retiring from their services, but the plaintiff had failed to deliver the possession of the property to them. The defendant was working as a mason and the other brother was in service. He has further contended that, he and his brothers wanted to cultivate their properties on retiring from their services, but the plaintiff had failed to deliver the possession of the property to them. On plaintiff’s failure to deliver the possession of the property to the defendant and to his other brother, filed a suit in O.S.No. 178/1999 on the file of the Principal Civil Judge (Jr.Dn.) and JMFC, Anekal, for possession and for mesne profits and they also filed a suit in O.S.No. 615/1998 on the file of the learned II Additional Civil Judge (Sr.Dn.), Bangalore rural district, Bangalore. In the said suit, plaintiff herein is the defendant. It is further contended that the defendant is addicted to alcohol. Whenever the defendant went to his native place, the plaintiff and defendant used to take alcohol together. Taking advantage of one such situation, plaintiff had taken the signatures of the defendant on some papers or stamp papers which had been used by the plaintiff to concoct the sale agreement. It is contended that, sale agreement produced by the plaintiff in the present suit is not the agreement executed by the defendant. The defendant had not received any notice from the plaintiff. It is contended that, plaintiff is not entitled for any relief and hence, he has sought for dismissal of the suit. 7. The trial Court by considering the rival pleadings of the parties has framed the following issues for its consideration : 1. Whether the plaintiff proves that the defendant entered into an agreement to sell the suit schedule property and received part of sale consideration as alleged? 2. Whether the defendant proves that the plaintiff obtained his signatures on some stamp papers when he was inebriated? 3. Whether the plaintiff proves that he was/is always willing to perform his part of the contract? 4. Whether the suit is in time? 5. Whether the plaintiff is entitled for the relief of Specific performance as prayed? 6. What order or decree? 8. Plaintiff in order to prove his case has examined his GPA holder, who is none other than his son Munivenkatappa as P.W.1, two independent witnesses as P.Ws. 2 and 3 and his daughter Venkatamma as P.W.4 and produced as many as 8 documents, which were marked as Exs. P.1 to P.8. 6. What order or decree? 8. Plaintiff in order to prove his case has examined his GPA holder, who is none other than his son Munivenkatappa as P.W.1, two independent witnesses as P.Ws. 2 and 3 and his daughter Venkatamma as P.W.4 and produced as many as 8 documents, which were marked as Exs. P.1 to P.8. Whereas the defendant in support of his defence has examined himself as D.W.1 and produced a document which was marked as Ex.D.1. 9. During the pendency of trial, the original plaintiff died and his wife, daughters and son had come on record as his legal representatives and they were described as plaintiffs 1(a) to (f) in the cause title of the suit and they pursued the suit. 10. The trial Court after hearing the learned Counsel appearing for the parties and after considering the oral and documentary evidence on record, by judgment and decree dated 19-01-2005 has answered Issue nos. 1 and 4 in the affirmative and Issue no. 2 in the negative and dismissed the suit of the plaintiff in respect of the relief of specific performance of contract and decreed the suit in respect of other reliefs and directed the defendant to pay a sum of Rs.1,550/with interest at 6% p.a. from the date of agreement – Ex.P.1, within six months from the date of the order to the plaintiff. 11. The plaintiff aggrieved by the said judgment and decree of the trial Court in dismissing his suit, challenged the same by preferring a Regular Appeal in R.A.No.60/05 before the first appellate Court. 12. Defendant long after receipt of notice in R.A.No.60/05 had preferred cross appeal challenging the finding of the trial Court on issue Nos. 1, 2, 3 and 4 which were held against him. 13. The first appellate Court after hearing the learned Counsel appearing for the parties and reappreciating the oral and documentary evidence on record, allowed the appeal preferred by the plaintiff and set aside the judgment and decree passed by the trial Court in O.S.No.176/99 and consequently decreed the suit of the plaintiff and directed the defendant to execute sale deed in respect of the plaint schedule property in favour of the LRs. of the plaintiff after receiving balance sale consideration of Rs.140/within a span of three months and on his failure to do so, plaintiffs can get the document registered through Court and has dismissed the cross appeal preferred by the defendant. 14. The defendant aggrieved by the said judgment and decree of the first appellate Court in R.A.No.60/05 has preferred this Regular Second Appeal. 15. Though in the above appeal itself, defendant could have challenged the judgment and decree passed by the first appellate Court on his cross appeal which he had preferred challenging the findings of the trial Court on issue Nos.1, 2, 3 and 4 which were held against him by paying separate Court fee, but in the prayer column of the above appeal, defendant has expressly stated in prayer `B’ that “this appellant is not challenging the judgment and order passed in respect of the cross appeal filed by this appellant in the first appellate Court”. 16. It appears that the above aspect was not brought to the notice of the Court while admitting the appeal and framing substantial questions of law, consequently, the following substantial questions of law were framed by this Court on 11-04-2016: “1. Whether sale agreement entered into during the subsistence of legal bar under Prevention of Fragmentation and Consolidation of Holdings Act, 1966 for sale of fragmented land is valid and enforceable ? 2. Whether the suit filed after three years from the date of repealing of the Fragmentation Act is maintainable? 3. If the agreement of sale is not fragment land (but `augmentation’ as observed by the Court below) whether the suit filed after three years from the date of agreement of sale is maintainable ? 4. Whether the willingness and readiness of the parties is proved from the date of agreement ? Or is it sufficient if it is proved from the date of filing of the suit ? 17. In view of the above, only substantial question of law that arises for consideration in this second appeal is: `Whether the finding of the first appellate Court on an issue relating to fragmentation, that agreement of sale entered between the parties is not hit by the provisions of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 is sustainable in law ?’ 18. In order to answer the above substantial question of law, it is necessary to refer to certain provisions of the Act. Section 4 of the Act deals with Entry in the Record of Rights. As per Section 4(1) as soon as may be after the commencement of this Act, all fragments in a village shall be entered as such in the Record of Rights, or where there is no Record of Rights, in such village record as the State Government may prescribe. As per Section 4(2), Notice of every entry made under subsection (1) shall be given in the manner prescribed for the giving of notice under Chapter XI of the Karnataka Land Revenue Act, 1964 (Karnataka Act 12 of 1964), of an entry in the Register of Mutations.” 19. As could be seen from the record of rightsEx.P6, there is no entry in the record of rights relating to the suit survey number as fragment as required under Section 4 of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act. No notice under subSec.(2) of Section 4 had also been given and no determination of standard area as required under Section 3 of the Act had been made. Therefore, suit property could not be recorded as `fragment’ as defined under Section 2(g) of the Karnataka Act. Hence, the bar against alienation contained in subSection 5(1)(a) was not attracted, as held by this Court in the case of Kallanagouda Somanagouda Patil v. Rudragouda and others reported in AIR 1978 Karnataka 61. 20. As per a Division Bench judgment of this Court in the case of B.H.Honnahalage Gowda v. Karnataka Appellate Tribunal reported in ILR 1991 Kar. 4408, a person can be debarred from alienating the land to any one, other than the contiguous land owner only, if an entry has been made in the record of rights or other appropriate land record that it is a `fragment’ and notice in that behalf has been served upon him. Unless this is shown to have been done, the provisions of Section 5 of the Act cannot be enforced against the owner and he cannot be obliged to sell the land to a contiguous land owner. 21. Unless this is shown to have been done, the provisions of Section 5 of the Act cannot be enforced against the owner and he cannot be obliged to sell the land to a contiguous land owner. 21. In the instant case also, either in the record of rightsEx.P6 or in any other appropriate land record, no entry has been made relating to the suit survey number as fragment and further no notice in that behalf has been served upon the defendant. 22. Further, it is to be noted that it is not the case of the defendant that entry has been made in the record of rights or any other appropriate land record that suit land is a fragment and it is not his case that notice in that behalf has been served upon him. Therefore, the agreement of sale executed by the plaintiff in favour of the defendant is not hit by Sections 5 and 6 of the Karnataka Act. 23. This Court in the case of Ninge Gowda v. Smt. Jayamma and others reported in AIR 1980 Karnataka 166, has held as under : “It is clear from the provisions of S.6 that what has been prohibited is a transfer or partition or a subdivision so as to create a fragment. If the land was already a fragment, S.6 cannot be a bar.” It has also held, bar of alienation imposed under Section 6 can be applied only in the event of notifying the land as fragment, as required under Sec.4(2) so as to fall within the scope of Section 5 of the Act. In the instant case also, as could be seen from the record of rights marked as Ex.P.6, suit Sy.No. is already divided and phoded as 111/4 and agreement of sale does not create further fragment. 24. As already stated, defendant – the khatedar in respect of a portion of the suit Sy.No. has agreed to sell his portion of the land in favour of the plaintiff who is his brother and a holder of other portion of the suit Sy.No. 25. As per the aforesaid judgments, it is clear that agreement of sale executed by the defendant in favour of the plaintiff is not hit by the provisions of the Karnataka Act, as rightly held by the first appellate Court. 26. As per the aforesaid judgments, it is clear that agreement of sale executed by the defendant in favour of the plaintiff is not hit by the provisions of the Karnataka Act, as rightly held by the first appellate Court. 26. I have carefully gone through the judgment and decree passed by the first appellate Court on the issue relating to fragmentation and do not find any illegality or infirmity in the said judgment, warranting interference. The substantial question of law framed is answered accordingly and against the appellant. Hence, the following : Appeal is dismissed as devoid of merit. No order as to cost.