Home Case Index All Cases Indian Laws Indian Laws + SC Indian Laws - 2017 (12) TMI SC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (12) TMI 1709 - SUPREME COURTSpecific Performance in relation to the agreement - bar created by Section 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act - HELD THAT:- 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 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. 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. Time limitation - HELD THAT:- 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. Appeal dismissed - decided against Revenue.
|