REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.6069 OF 2008

Balwant Vithal Kadam        ….Appellant(s)

VERSUS

Sunil Baburaoi Kadam           …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1. This appeal is filed by the defendants against

the  final  judgment  and  order  dated  24.07.2006

passed  by  the  High  Court  of  Bombay  in  Second

Appeal  No.  426  of  2004  whereby  the  High  Court

dismissed the second appeal filed by the appellants

herein and affirmed the judgment and order dated

03.10.2002  passed  by  the  8th Additional  District

Judge, Satara in R.C.A. No.9/1996, which arose out

of judgment/decree dated 29.11.1995 passed by the

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2nd Joint Civil  Judge, Satara in R.C.S. No. 265 of

1989.

2. In order to appreciate the controversy, which

lies in a narrow compass,  few relevant facts need

mention hereinbelow.  

3. The appellants are the defendants whereas the

respondent is the plaintiff in a suit out of which this

appeal arises.

4. The respondent filed a suit being Civil Suit No.

265/89 in the Court of 2nd Joint Civil Judge, Satara

against  the  appellants  for  specific  performance  of

the  two agreements,  dated 11.10.1982(Ex.48)  and

11.04.1983(Ex.68) to purchase 1/12th share of the

appellants  in  the  land  which  belonged  to  them

situated  at  Eastern  potion  of  Gat.  No.594/1

admeasuring  2  hectares  18  Acre  situated  at

Malegaon  Taluka  and  District  Satara(hereinafter

referred to as “suit land”).  

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5. The  sale  consideration  was  fixed  at

Rs.10,000/-.  The respondent had paid Rs.3,000/-

by way of earnest money to the appellants. The sale

deed was to be executed within 6 months. Since the

dispute arose between the parties and no sale deed

was executed,  the respondent filed a suit  to  seek

specific performance of the said agreement against

the appellants in relation to the suit land.  

6. The appellants contested the suit by filing their

written  statement.  Parties  adduced  evidence.  The

Trial Court, by judgment/decree dated 29.11.1995

in R.C.S. No.265/1989, dismissed the suit.  

7. The  respondent  (plaintiff)  felt  aggrieved  and

filed  first  appeal  being  Regular  Civil  Appeal  No.

9/1996  in  the  Court  of  VIIIth  Additional  District

Judge,  Satara.  By  judgment/decree  dated

03.10.2002, the VIIIth   Additional District Judge,

allowed the appeal, set aside the judgment/decree

of the Trial Court and decreed the respondent's suit.

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8. Felt aggrieved, the appellants (defendants) filed

second appeal in the High Court of Bombay being

S.A. No. 426/2004. By impugned judgment/decree,

the  High  Court  dismissed  the  defendants’  second

appeal, which has given rise to filing of the present

appeal by way of special leave in this Court by the

defendants.  

9. Initially, there were two appellants.  By order

dated 28.10.2013 passed by this Court, the appeal

against appellant No.1 was held abated.

10. Heard  Mr.  Sudhanshu  Chaudhari,  learned

counsel  for  the  appellant  and Mr.  Varun Mathur,

learned counsel for the respondent.

11. Learned counsel  for  the  appellant  (defendant

No.2) while assailing the legality and correctness of

the  impugned  judgment  argued  that,  firstly,  the

respondent's suit was misconceived inasmuch as no

specific performance in relation to the agreement in

question was permissible in the light of bar created

by  Section  31  of  the  Bombay  Prevention  of

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Fragmentation  and  Consolidation  of  Holdings  Act

(hereinafter  referred  to  as   “the  Act”)  which,

according  to  learned  counsel,  prohibited  any

transfer  of  holding  and,  more  particularly,  a

fragment such as the one in the case at hand.

12.  In the second place, learned counsel attacked

the  findings  of  the  High Court  recorded  on  three

pleas raised by the appellant in the second appeal

and contended that all the three pleas deserve to be

upheld in appellant’s favour.

13. Learned counsel for the respondent, in reply,

supported the reasoning and the conclusion of the

High  Court  and  contended  that  the  impugned

judgment  does  not  call  for  any  interference  and

hence deserves to be upheld.

14. Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case, we

are inclined to dismiss the appeal finding no merit

therein.

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15. This  is  how the High Court  dealt  with three

pleas in the impugned judgment:

“2. Shri Thorat appearing for the Appellants submitted that as the suit agreement for sale was  executed  in  contravention  of  section 48(d)  of  the  Maharashtra  Cooperative Societies Act, 1960 the agreement itself was void  and  therefore,  specific  performance  of the agreement could not have been granted. He  submitted  that  the  finding  of  the  trial Court  on  the  issue  of  readiness  and willingness of the original Plaintiff has been upset by the Appellate Court without dealing with the reasoning of the trial Court. Lastly he  submitted  that  the  suit  filed  by  the original Plaintiff was barred by limitation.

3. I have considered the submissions. In my view section 48(d) of the said Act of 1960 will not affect the legality of the suit agreement. In  view  of  section  54  of  the  Transfer  of Property Act,  1882 agreement for sale does not  create  any  interest  in  favour  of  the purchaser  in  respect  of  the  immovable property.  Therefore,  agreement  for  sale cannot  be  treated  as  alienation  or  transfer within the meaning of clause (d) of section 48 of the said Act of 1960. Apart from this fact, the  Appellate  court  has  observed  that  the original Defendant Nos. 1 and 2 have agreed to sell  only a small portion of the property over which charge has been created in favour of  the Land Development Bank and part  of the loan has been repaid.  

4. So far as the second submission regarding readiness and willingness is concerned, I find that  the  Appellate  Court  has  discussed  the entire  evidence.  The  Appellate  Court  after considering  the  pleadings  and  oral  and documentary evidence on record has come to the  conclusion  that  the  Plaintiff  has established his readiness and willingness to

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perform  his  part  of  the  contract.  The Appellate Court has observed that if at all any permission  for  transfer  was  to  be  obtained, the  same  was  the  obligation  of  the Defendants. So far as the bar of limitation is concerned, I find that in the Appellate Court the said issue was not specifically raised. The same was the case with the trial Court. The issue of limitation is a mixed question of law and fact considering the relevant provisions of the Limitation Act, 1963 which deal with the  limitation  for  suit  for  specific performance.”   

16. In our considered opinion,  no fault  could be

found  in  the  three  findings  of  the  High  Court

recorded on three pleas as the reasoning and the

conclusion arrived at by the High Court is just and

proper calling for no interference by this Court in

the appeal.

17.  So  far  as  the  plea  relating  to  validity  and

enforceability  of  the  agreement  in  question  is

concerned, it was rightly held by the High Court to

which we concur that the agreement in question is

not  hit  by  Section  48  of  the  Maharashtra

Co-operative  Society  Act  inasmuch  as  the

agreement  to  sell  in  itself  does  not  create  any

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interest  in  the  land  nor  does  it  amount  to  sale

under Section 54 of the T.P. Act. It only enables the

intending  buyer  to  claim  specific  performance  of

such  agreement  on  proving  its  terms.  In  other

words,  there  lies  a  distinction  between  an

agreement to sell, and sale.  The latter creates an

interest in the land once accomplished as defined

under  Section  54  of  the  T.P.  Act.     It  was  also

rightly held on facts to which we concur that since

the  dues  of  the  Land  Development  Bank  were

repaid,  the  question of  applicability  of  Section 48

did  not  arise.  We,  therefore,  find  no  ground  to

disagree with this factual finding.

18. So  far  as  the  plea  relating  to  readiness  and

willingness is concerned, it  was again rightly held

by  the  High  Court  to  which  we  concur  that  this

being a finding of fact, it could not be disturbed in

second appeal and was binding on the High Court.

It was more so when the first Appellate Court had

recorded  its  finding  by  appreciating  the  entire

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evidence on record. We, therefore, find no ground to

disagree with this finding of the High Court.

19. So  far  as  the  plea  relating  to  limitation  is

concerned, it was rightly held by the High Court to

which we again concur that, firstly, it was neither

raised before the Trial Court and nor before the first

Appellate  Court;  and  secondly,  it  being  a  mixed

question  of  law  and  fact,  the  same  could  not  be

examined, for the first time, in second appeal by the

High Court. We agree with the finding of the High

Court calling for no interference.  

20. Now, so far as the plea relating to applicability

of Section 31 of the Act to the agreement in question

is concerned, the appellant, in our view, cannot be

permitted to raise such plea, for the first time, in

this appeal.  

21. It is for the reason that, firstly, this plea was

neither  raised  by  the  appellant  before  the  Trial

Court and nor before the first Appellate Court and

lastly, nor before the High Court.  

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22. Secondly, in order to enable the appellant to

raise any challenge to any plea, the party concerned

has to first lay foundation in the pleadings of such

plea which,  in  this  case,  was not.   It  is  more so

when a plea is a mixed question of law and fact.  

23. This Court being the last Court of appeal does

not,  therefore,  consider  it  proper  to  allow  the

appellant to raise such plea, for the first time, under

Article 136 of the Constitution in this appeal.

24. Learned  counsel  for  the  appellant,  however,

contended that the appellant had raised this point

in  the  arguments  before  the  High  Court  but  the

same was not considered. We do not find it to be so.

When we read the impugned judgment, we find that

the High Court has specifically noted in Para 2 the

three pleas raised by the appellant, which did not

include this plea.

25. Learned  counsel  for  the  appellant  next

contended that the agreements in question were not

meant for sale of the land but were in the nature of

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security  for  the  loan  transaction  entered  between

the  parties.   We  are  afraid  we  can  go  into  this

question in this appeal.  It is again for the reason

that firstly, it is a question of fact and secondly, it

was not urged before the High Court.

26. In the light of foregoing discussion, we find no

merit  in  any  of  the  submissions  urged  by  the

learned counsel for the appellant dealt with supra.  

27. As a result, the appeal is found to be devoid of

any  merit  and  thus  it  fails  and  is  accordingly

dismissed.     

               ………...................................J.  [ABHAY MANOHAR SAPRE]

                                                           …...……..................................J.  [NAVIN SINHA]   

New Delhi; December 05, 2017  

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