JUDGMENT : V. SRISHANANDA, J. Heard Sri B.S. Raghu Prasad, learned counsel for the appellant and Sri M. Shivaprakash, learned counsel for the respondent. 2. Unsuccessful plaintiff is the appellant challenging the dismissal of the suit in O.S.No.2253/1996 in this appeal. 3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under: 3.1. Plaintiff filed a suit against the defendant with the following prayer in respect of the following property (hereinafter referred to as ‘suit property’): “WHEREFORE the plaintiff prays for a judgment and decree to declare that the agreement of sale dated 12.2.1990 entered into between the plaintiff and defendant is not binding on the plaintiff, and for permanent injunction against the defendant restraining the defendant, his agent followers, henchmen, workmen or anybody claiming through or under him from interfering with the peaceful possession and enjoyment of the plaintiff in respect of the suit Schedule Property and for an order of permanent injunction restraining him from digging trenches and putting up construction on the suit schedule property and for costs of the suit and for such other relief or reliefs as this Hon'ble Court may deem fit to grant in the circumstances of the case in the interest of justice. Schedule All that piece and parcel of dry land situated in S.No.19/1, measuring 37 ½ guntas of Yelachenahalli Village, Uttarahalli Hobli, Bangalore south Taluk, bounded on the East by Ramaiah Reddy's land, West by Shanbog Inamti Land, South by Narayanappa's land and North by Muniamma's land.” 4. Contention of the plaintiff in the nutshell before the trial Court in the plaint is that plaintiff is the absolute owner of the land, measuring 37 ½ guntas in Sy.No.19/1, situated at Yalachenahalli Village, Uttarahalli Hobli, Bengaluru South Taluk. She had purchased the same from Smt. Narayanamma and others on 16.06.1972 under a registered sale deed. Ever since then, plaintiff was in possession and enjoyment of the suit property by mutating the revenue entries in her name. 5. Defendant approached the plaintiff to purchase suit land for a total consideration of Rs.5,50,000/- and an agreement came to be executed on 04.07.1989. Under the agreement, defendant agreed to pay additional advance of Rs.1,75,000/- within a period of 75 days from the said agreement. 6. There was yet another agreement on 19.02.1990 as the earlier agreement could not be enforced between the parties. Under the agreement, defendant agreed to pay additional advance of Rs.1,75,000/- within a period of 75 days from the said agreement. 6. There was yet another agreement on 19.02.1990 as the earlier agreement could not be enforced between the parties. Under the said agreement, property was agreed to be sold in a sum of Rs.6,10,000/- as against Rs.5,50,000/- and advance amount of Rs.1,00,000/- paid under the agreement dated 04.07.1989 was considered as the consideration in respect of the fresh agreement dated 19.02.1990. 7. In addition to the same, sum of Rs.1,00,000/- was paid through cheque by the defendant to the plaintiff on 19.02.1990. Thus, the total advance amount towards the fresh agreement dated 19.02.1990 is in a sum of Rs.2,00,000/- and defendant had agreed to pay balance sale consideration within 70 days from the date of fresh agreement. 8. When the matter stood thus, on the date of agreement of sale, a suit in O.S.No.18/1988 was filed by V.Manjunath Reddy and others against the defendants including the plaintiff and in the said suit, there was an order of temporary injunction restraining the plaintiff from alienating the suit property. 9. By an order dated 18.11.1989 passed in the said suit, there was a finding that suit property is prima facie held to be the joint family property. 10. In view of the said order, there was a further agreement between the parties that in the event plaintiff is unable to get the order passed in O.S.N o.18/1988 set aside or obtain the stay, there will be extension of time. 11. Plaintiff also contended that against the order of injunction, an appeal came to be filed in miscellaneous first appeal before this court in MFA No.285/1990 and in the said appeal, there was an order of status quo. 12. Thereafter, since there was a restriction on the plaintiff to execute the sale deed as per the agreement dated 19.02.1990, the matter could not be proceeded further. 13. However, it is contented that during the pendency of the litigation, defendant paid to the plaintiff a sum of Rs.5,10,000/-. 14. By notice dated 10.02.1992, plaintiff called upon the defendant to pay the balance sale consideration and get the sale deed register. 15. In the said notice, plaintiff also made it clear that MFA No.285/1990 was dismissed and there was no hindrance for the plaintiff to complete the transaction. 16. 14. By notice dated 10.02.1992, plaintiff called upon the defendant to pay the balance sale consideration and get the sale deed register. 15. In the said notice, plaintiff also made it clear that MFA No.285/1990 was dismissed and there was no hindrance for the plaintiff to complete the transaction. 16. Plaintiff also notified the defendant that failure to pay the balance sale consideration, the entire agreement stands cancelled. 17. Though the said notice is received by the defendant, defendant did not pay the balance consideration but issued a reply on 09.03.1992 stating that looking for a settlement in the suit in O.S.No.18/1988 or dismissal of Miscellaneous First Appeal for completion of the sale transaction. Therefore, defendant was not ready and willing to complete the obligations under the agreement. 18. Defendant did not follow the schedule of payment as per the agreement. Therefore, the plaintiff filed the said suit with aforesaid prayer. 19. Pursuant to the suit summons, defendant appeared through his advocate and filed detailed written statement reiterating that because of the pendency of the suit in O.S.No.18/1988 and further appeal, the defendant did not pay the balance sale consideration and denied other averments in the plaint. 20. Based on the rival contentions, the trial Court raised the following issues: “1. Whether the plaintiff proves here lawful possession over the suit property as on the date of suit? 2. Whether the plaintiff proves the alleged interference by the defendant? 3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? 4. What order or decree?” 21. In order to prove the case of the plaintiff’s, General Power of Attorney Holder by name Sri R. Narayanaswamy Reddy is examined as P.W.1. He has placed on record six documents which were exhibited and marked as Exs.P.1 to P.6, comprising of General Power of Attorney, cancellation of the agreement, notice, complaint, endorsement and RTC extract. 22. As against the evidence placed on record by the plaintiff, defendant got examined himself as D.W.1 and placed on record the original agreement to sell, receipt and copy of the legal notice as Exs.D.1 to D.3. 23. Based on the material evidence placed on record by the parties, the learned trial Judge heard the arguments of both sides and dismissed the suit of the plaintiff. 24. 23. Based on the material evidence placed on record by the parties, the learned trial Judge heard the arguments of both sides and dismissed the suit of the plaintiff. 24. Being aggrieved by the same, the plaintiff has filed the present first appeal on the following grounds: - The Judgment of the Court below manifestly erroneous and is the result of not looking into the records of the case in full and non-application of mind to the material on record, - That the court below did not look into the records of the case is manifestly evident from the fact that it has not referred to the additional issue framed on 24.6.03. The additional issue is not even referred to in the Judgment and no the said not even referred to in finding whatsoever has been given on issue. - Thus, it is clear, that the court below totally erred in not applying its mind to the material on record and has erroneously given finding on issue Nos. 1 and 2. - Case The court below failed to appreciate that it is an admitted fact that on the date of agreement of sale, Ex.D1, there was an order against the Plaintiff in the case to maintain satusquo in respect of the suit schedule property by virtue of the order passed by the Hon'ble High Court of Karnataka in MFA No.285/90. Having regard to the same, neither the plaintiff in the suit not the defendant in the suit who claims under the nor Plaintiff could have carried out any activity of whatsoever nature in the suit schedule property. - The court below erred in holding ??ssession of the suit schedule property has delivered to the Defendant under Ex.D1 Agreement of sale. - The court below while giving a finding on Issue Nos. 1 and 2 has not at all looked into the agreement of sale Ex.D1 and has not applied its mind to the recitals in the agreement of sale. - The court below failed to appreciate that in Clause 2 of Ex.D1 the recitals to the effect that the purchaser is put in possession of the suit schedule property is struck out and the said correction is signed by the Defendant. - The court below failed to appreciate that in Clause 2 of Ex.D1 the recitals to the effect that the purchaser is put in possession of the suit schedule property is struck out and the said correction is signed by the Defendant. - The court below also failed to read clause 4 of the agreement of sale Ex.D1 which reads as follows: - That the purchaser shall pay the additional advance of Rs.1,00,000/- (Rupees One lakh only) within a period of 30 (thirty) days from this date and the balance sale consideration of Rs.3,10,000/- (Rupees Three lakhs and Ten thousand only) shall be paid within a period of Seventy days (70 days) from this date and thereafter the Vendor shall execute in favour of the purchaser or his nominee a Sale Deed or Irrevocable General Power of Attorney or any other document or documents at the discretion of the purchaser in order to perfect the right, interest and title of the purchaser in respect of the schedule land and also to safeguard the interest of the prospective purchasers of the sites formed out of schedule land and sold by the purchaser after paying the full value of the vendor and putting him in possession of the schedule property. " - The court below erred in holding that undes Ex.D1. the Defendant was permitted to form a Layout. Nowhere in Ex.D1, it is stated that the Defendant was permitted to form a layout in the suit schedule property. All that Ex.D1 states is that the Defendant was permitted to enter into agreements of sale for buying sites in the proposed Layout in the event of the Defendant deciding to form a layout and any agreement which he may enter into are binding on the plaintiff only after the entire sale consideration is paid. It is admitted fact that the entire sale consideration is not paid. - The court below failed to appreciate that the Defendant in the cross-examination has stated that except Ex.D1 he has no other document to show that he is put in possession of the suit schedule property. It is admitted fact that the entire sale consideration is not paid. - The court below failed to appreciate that the Defendant in the cross-examination has stated that except Ex.D1 he has no other document to show that he is put in possession of the suit schedule property. A reading of Ex.D1 clearly shows that it was agreed between the parties that the of Defendant/Purchaser shall be put in possession of the suit schedule property only after full sale consideration is paid and it is not a dispute in the case that the whole sale consideration is not paid. - The court below held that the Defendant has formed a layout and he could not have formed a layout without being put in possession. In so doing, the court below assumed that a layout has been formed, while it has clearly come in evidence that even on the date when the evidence was recorded, the suit schedule property remained on an agricultural land. It is not converted into non-agricultural purposes. No approval of any authority for forming a layout has been taken and the Defendant does not show that he actually formed a layout in the land. - The court below failed to appreciate that the Defendant has not stated that he has formed a layout and sold sites to the intending buyers and he has not placed any material on record to show that a layout has been formed in the land. - The court below clearly erred in holding that the plaintiff has authorised the defendant form a layout of sites while Ex.D1 does not show that Defendant was permitted to form a layout. - The observation of the court below that the recitals in Ex.D1 clearly indicate that after putting the Defendant in possession of schedule property, the plaintiff authorized defendant to form a layout of sites and also authorised him to enter into agreements of sale with the intending purchasers is clearly erroneous, and contrary to the terms of Ex.D1. The said observation itself clearly shows that the court below has not read the agreement of sale- Ex.D1. It has not applied its mind and it has proceeded to pass judgment on the basis of things which are not borne out by the material on record. The said observation itself clearly shows that the court below has not read the agreement of sale- Ex.D1. It has not applied its mind and it has proceeded to pass judgment on the basis of things which are not borne out by the material on record. - The court below erred in holding that Plaintiff was not at all in possession of the suit schedule property on the date of filing of the suit. - The court below failed to appreciate that the defendant has not sought for specific performance of the agreement of sale. Even as on this date, the Defendant has not sought execution of the sale deed from the plaintiff after paying the balance of sale consideration and as such, it is not open to the Defendant to claim any rights in respect of the suit schedule property. - The court below ought to have appreciated that the suit for specific performance of the agreement of sale dated 19.2.90 is clearly barred by limitation and the defendant is not entitled to get any sale deed executed from the Plaintiff as on this date. In the circumstances, it is not open to him to claim any rights in respect of the suit schedule property. - It is submitted that the Judgment and Decree of the court below is otherwise erroneous and is not sustainable either on facts or in law and the same is liable to be set aside.” 25. Sri B.S. Raghu Prasad, learned counsel for the appellant reiterating the grounds urged in the appeal memorandum, vehemently contented that even though suit is not properly framed, the parties have understood the rival contentions between them and went into the trial based on the issues framed in the suit. Therefore, dismissal of the suit has resulted in miscarriage of justice. 26. He would further contend that even though the properties acquired by the bankers, officers and housing society limited in the year 1985, the question of solemn contract between the parties was not enforced. Therefore, the plaintiff is entitled to forfeit the advance sale consideration filed under Ex.D.1 and to that extent at least the suit could have been decreed. 27. He would further contend that even though the properties acquired by the bankers, officers and housing society limited in the year 1985, the question of solemn contract between the parties was not enforced. Therefore, the plaintiff is entitled to forfeit the advance sale consideration filed under Ex.D.1 and to that extent at least the suit could have been decreed. 27. He would further contend that the reasoning assigned by the learned trial Judge while answering issue Nos.1 and 2 especially in paragraph No.15 is totally uncalled for inasmuch as the agreement is not in dispute between the parties. Therefore clauses of the agreement could bind the parties irrespective of the subject matter of the agreement and sought for allowing the appeal to that extent. 28. Sri M. Shivaprakash, learned counsel for the respondent would submit that the contract became incapable of performance on account of acquisition of the land and litigation ensued with regard to the acquisition and the individual site owner which ultimately reached to the Hon'ble Apex Court in SLP No.11753-11837/2012 and there was a direction issued by the Hon'ble Apex Court to the individual site owners to approach the society which is the owner on account of acquisition to get their title to the property perfected by process known to law. 29. Therefore, the question of the plaintiff's claiming that the agreement is not binding on her could not have been considered by the trial Court and rightly dismissed the suit and thus sought for dismissal of the appeal. 30. Insofar as forfeiture clause is concerned, Sri M.Shivaprakash filed a memo to the effect that the defendant has filed no objection that advance sale consideration amount paid under Ex.D.1 may be forfeited and to that extent suit may be decreed. Contents of memo reads as under: “The Counsel for the respondent most respectfully submits as under: 1. The land in question under the sale agreement Sy.No.19/1 measuring to an extent of 0.37 Guntas of Yelachenahalli. The land notified for acquisition by the Government under Land Acquisition Act, in the year 1985. The entire proceedings concluded in the year 1988, award is passed in the year 1989. 2. The agreement between the parties in five of notification the principles of Doctrine of frustration is applicable and cannot be enforced. 3. This Hon'ble Court allowed the appeal dated 24/11/2025, wherein the advance amount has been forfeited. The entire proceedings concluded in the year 1988, award is passed in the year 1989. 2. The agreement between the parties in five of notification the principles of Doctrine of frustration is applicable and cannot be enforced. 3. This Hon'ble Court allowed the appeal dated 24/11/2025, wherein the advance amount has been forfeited. The defendant and his family members have withdrawn the award amount passed as per records. In view of this situation, the plaintiff has to work out with the office of the Land Acquisition to receive the amount under deposit. 4. It is submitted that the defendants in pursuance of the agreement sites are formed several persons are put in possession on the sites, the persons have developed the properties with their dwelling house, few photographs are also annexed to this Memo. 5. By virtue of the order passed before the Hon'ble Apex Court in Civil Appeal No.4301- 4385/2019 dated 25/4/2019 and public notice vide BOOHBCS/26/CIR/2019-20 dated 22/5/2019, the site holder with documents may approach the authority of BOOHBCS to secure necessary and proper deeds on payment of the amount as stipulated in the public notice. The public notice dated 22/5/2019 is already placed on record, a copy of the same is enclosed to this memo also, in the interest of justice and equity.” 31. In view of the above rival contentions of the parties and also taking note of the fact that the subject matter of the contract has resulted in frustration, the sole point that would arise for consideration is: Whether the plaintiff’s suit needs to be decreed by permitting him to forfeit the advance amount? 32. In the case on hand there is no dispute as to the agreement between the parties. However, there was a subsequent development that has taken place inasmuch as the suit property came to be acquired by the bankers, officers and housing society limited. 33. Pursuant to the said acquisition, there were certain litigations by the individual site owners as well. In the case on hand there is no dispute as to the agreement between the parties. However, there was a subsequent development that has taken place inasmuch as the suit property came to be acquired by the bankers, officers and housing society limited. 33. Pursuant to the said acquisition, there were certain litigations by the individual site owners as well. Those litigations ultimately reached to the Hon’ble Apex Court and the Hon’ble Apex Court passed an order in the case of Srikanth H Kulkarni and others vs. The State of Karnataka and others, Civil Appeal No.4301-4385 of 2019 (Arising out of SLP (Civil) No.11753-11837 of 2012), which reads as under: “Considering the aforesaid facts, we are of the view that these appeals deserve to be disposed of in view of the joint memos of settlement filed by the appellants and the society. We further observe that word 'confirmation' used in the conditions under the joint memos settlement should be read as 'conveyance'. Appellants shall pay all necessary stamp duty as payable under the Karnataka Stamp Act treating it as a deed of title.” 34. As such, the contract has become incapable of performance. However, the trial Court did not take into notice of the fact that there was an advance amount paid and under the agreement there was a forfeiture clause. Therefore, dismissal of the suit in entirety has resulted in miscarriage of justice. 35. The forfeiture clause in the agreement – Ex.D.1 is clause No.9 which reads as under: “9. That in the event of the Purchaser failing to set in terms of this Agreement, the advance amount paid by him shall stand forfeited. If the Vendor and the consenting witnesses fail to act in terms of this agreement they shall jointly and severally refund all the amounts received from the Purchaser together with expenses incurred by the purchaser with interest thereon at 18% per annum (Eighteen percent per annum) from this date till realisation.” 36. Therefore, the suit ought to have been decreed in part. When this aspect of the matter is brought to the notice of Sri M. Shivaprakash, learned counsel for the respondent, he has filed a memo in this regard as referred to supra. 37. Therefore, the suit ought to have been decreed in part. When this aspect of the matter is brought to the notice of Sri M. Shivaprakash, learned counsel for the respondent, he has filed a memo in this regard as referred to supra. 37. Thus, dismissal of the suit in toto cannot be countenanced in law and needs to be set aside and suit needs to be decreed in part by answering the point in favour of the appellant. 38. Accordingly, the following: ORDER (i) Appeal is allowed in part. (ii) Dismissal of the suit in O.S.No.2253/1996 is hereby set aside. (iii) Plaintiff is entitled to forfeit the advance sale consideration amount mentioned in Ex.D.1.