Balwant Vithal Kadam vs Sunil Baburaoi Kadam

Balwant Vithal Kadam ….Appellant(s)

VERSUS

Sunil Baburaoi Kadam …Respondent(s)

JUDGMENT

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

Signature Not Verified Judge, Satara in R.C.A. No.9/1996, which arose out Digitally signed by ASHA SUNDRIYAL Date: 2017.12.05 17:28:50 IST Reason: of judgment/decree dated 29.11.1995 passed by the

1 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 1/12 th 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

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.

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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

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.

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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

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

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