Case: Balwant Vithal Kadam Vs. Sunil Baburaoi Kadam

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").5. The sale consideration was fixed at Rs.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 respondents suit.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.

Reasoning:
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.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 MaharashtraSociety Act inasmuch as the agreement to sell in itself does not create any 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 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.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.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 thisdo 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 thisare 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.