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
1
2
nd 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”).
2
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.
3
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
4
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.
5
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
6
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
7
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
8
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.
9
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
10
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
11
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
1
2
nd 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”).
2
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.
3
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
4
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.
5
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
6
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
7
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
8
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.
9
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
10
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
11
