BALWANT VITHAL KADAMversusSUNIL BABURAOI KADAM

                            [2017] 12 S.C.R. 44



A                      BALWANT VITHAL KADAM
                                          v.
                        SUNIL BABURAOI KADAM
                        (Civil Appeal No.6069 of2008)
B                           DECEMBER 05, 2017
       [ABHAY MANOHAR SAPRE AND NAVIN SINHA, JJ.]
           Maharashtra Cooperative Societies Act, 1960 - s.48 - lf
    applicable - Agreement to sell between respondent-plaintiff and
    appellants-defendants to purchase l//2 1h share of appellants in the
c   suit land - Earnest money paid by respondent to the appellants -
    However, dispute arose between the parties and no sale deed was
    executed - Suit filed by respondent seeking specific performance,
    dismissed - First appeal filed by respondent, allowed - Second
    appeal filed by appellant in High Court was dismissed - Plea of
D   appellant that the agreement to sell in question amounted to an
    alienation or transfer in contravention of s.48(d) and was void,
    therefore, specific performance of the agreement could not have
    been granted - Held: The agreement"in question is not hit by s.48
    inasmuch it was an agreement to sell, which in itself did not create
    any interest i11 the land nor did it amount to sale u/s.54 of the Transfer
E
    of Property Act - lt 011/y enabled the intending buyer to claim
    specific performance of such agreement on proving its terms -
    Further, the defendants agreed to sell only a small portion of the
    property over which charge was created in favour of the Land
    Developme11t Bank and since the dues of the Bank were repaid, the
F   question of applicability of s.48 did not arise - Further, the
    respondent also p1vved its readiness and willingness as rightly held
    by the first Appellate Court after appreciati11g the evidence on record
    - Order of High Court is just and proper, calling for no inte1ference
    - Transfer of Property Act, 1882 - s.54 - Specific relief.
G           Limitation - Plea of - Mixed question of fact and law - Plea
    of appellant that the suit filed by the respondent was barred by
    limitation - Held: Plea relating to limitation being a mixed question
    of law and fact, the same could not have been examined, for the
    first time, in second appeal by the High Court.
H
                                     44
 BALWANT VITHAL KADAM v. SUNIL BABURAOI KADAM                          45



       Bombay Prevention of Fragmentation and Consolidation of A
Holdings_ Act- s.31 - Bar under- Plea of appellant that respondent's
suit was misconceived as no specific performance in relation to the
agreement in question was permissible in view of bar uls.31 - Held:
To raise a challenge to any plea, the party concerned has to first
lay foundation in the pleadings which was not done in the present B
case - It is more so when a plea is a mixed question of law and fact
- Appellant cannot be allowed to raise such a plea in Supreme
Court being the last Court of appeal, for the first time u/Art.136 -
Pleadings - Constitution of India - Art. I 36.
       Words and Phrases - "Agreement to sell" and "Agreement to
sale" - Distinction between - Held: Agreement to sell in itself does C
not create any interest in the land nor does it amount to sale uls. 54
of the T.P. Act - It only enables the intending buyer to claim specific
performance of such agreement on proving its terms - Agreement to
sale creates an interest in the land once accomplished as defined u/
s. 54 of the T.P. Act - Transfer of Property Act, 1882 - s.54.          D
      Dismissing the appeal, the Court
      HELD: 1. The agreement in question is not hit by Section
48 of the Maharashtra Co-operative Society Act, 1960 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            E
Transfer of Property Act, 1882 (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        F
54 of the T.P. Act. It was also rightly held on facts that since the
dues of the Land Development Bank were repaid, the <1uestion
of applicability of Section 48 did not arise. There is no ground to
disagree with this factual finding. [Para 17] [49-G-H; 50-A]
      2. The plea relating to readiness and willingness, bei11g a      a
finding of fact, it could not be disturbed in second appeal and was
binding on the High Court. It was more so ~hen the first Appellate
Court had recorded its finding by appreciating the entire evidence
on record. There is, therefore, no ground to disagree with this
finding of the High Court. [Para 18] [50-B-C]
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46            SUPREME COURT REPORTS                        [2017] 12 S.C.R.


A         3. The plea relating to limitation was neither raised before
   the Trial Court, nor before the first Appellate Court. It being a
   mixed question of Jaw and fact, the same could not be examined,
   for the first time, in second appeal by the High Court. The said
   finding of the High Court calls for no interference. [Para 19] [SO-
B D]
           4. The appelliint cannot be permitted to raise the plea
   relating to applicability of Section 31 of the Bombay Prevention
   of Fragmentation and Consolidation of Holdings Act, to the
   agreement in question, for the first time, in this appeal. It is for
   the reason that, firstly, this plea was neither raised by the appellant
C before the Trial Court and nor before the first Appellate Court
  ·and lastly, nor before the High Court. 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
D question oflaw and fact. This Court being the last Court of appeal
   it is, therefore, not proper to allow the appellant to raise such
   plea, for the first time, under Article 136 of the Constitution in
   this appeal. [Paras 20-23] [50-E-G]
          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6069
E    of2008.
          From the Judgment and Order dated 24.07 .2006 of the High Court
     of Bombay in Second Appeal No. 426 of 2004.
           Sudhanshu Chaudhari, Ms. Surabhi Guleria, Advs for the
     Appellant.
F          Varun Mathur, Ms. Anagha S. Desai, Venkateswara Rao Anumolu,
     Advs for the Respondent.
           The Judgment of the Court was delivered by
            ABHAY MANOHAR SAPRE, J. 1. This appeal is filed by the
     defendants against the final judgment and order dated 24.07 .2006 passed
G    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 s•h
     Additional District Judge, Satara in R.C.A. No.9/1996, which arose out
     of judgment/decree dated 29.11.1995 passed by the 2"d Joint Civil Judge,
H    Satara in R.C.S. No. 265 of 1989.
 BALWANT VITHAL KADAM v. SUNIL BABURAOI KADAM                                  47
            [ABHAY MANOHAR SAPRE, J.]

     2. In order to appreciate the controversy, which lies in a narrow         A
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     B
Court of 2•d Joint Civil Judge, Satara against the appellants (or specific
performance of the two agreements, dated 11. IO. l 982(Ex.48) and
I l .04. I 983(Ex.68) to purchase l/121h share of the appellants in the land
which belonged to them situated at Eastern potion of Gat. No.594/l
admeasuring 2 hectares 18 Acre situated at Malegaon Taluka and District
Satara(hereinafter referred to as "suit land").                                C

       5. The sale consideration was fixed at Rs. I 0,000/-. 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         D
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.
                                                                               E
       7. The respondent (plaintiff) felt aggrieved and filed first appeal
being Regular Civil Appeal No. 911996 in the Court ofVIIIth 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.                   F
       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.                                 G
      9. Initially, there were two appellants. By order dated 28.10.2013
passed by this Court, the appeal against appellant No. I was held abated.

      10. Heard Mr. Sudhanshu Chaudhari, learned counsel for the
appellant and Mr. Varun Mathur, learned counsel for the respondent.
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48            SUPREME COURT REPORTS                         [2017] 12 S.C.R.


A            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 Fragmentation and Consolidation of Holdings Act
B
     (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
c    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
D    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.

E         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,
F
           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
G          the suit flied 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
H
 BALWANT VITHAL KADAM v. SUNIL BABURAOI KADAM                                  49
           [ABHAY MANOHAR SAPRE, J.]

      interest in favour of the purchaser in respect of the                    A
      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
                                                                               B
      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 c
      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
      perform his part of the contract. The Appellate Court has
      observed that if at all any permission for transfer was to be D
      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 rnised.
      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 E
      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.                                   F

       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 interest in the land nor       G
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
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50             SUPREME COURT REPORTS                          [2017) 12 S.C.R.



A    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 factu:d finding.
B           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
c    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, tt
     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
D    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
E    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.
F
            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,
0
     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.
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 BALWANT VITHAL KADAM v. SUNIL BABURAOI KADAM                                   51
           [ABHAY MANQHAR SAPRE, J.]

When we read the impugned judgment, we find that the High Court has             A
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 security for the loan transaction entered between the parties.    B
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       c
supra.
        27. As a result, the appeal is found to be devoid of any merit and
thus it fails and is accordingly dismissed.

                                                                                D
Divya Pandey                                                Appeal dismissed.