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TMI Blog2017 (12) TMI 1709X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment/decree dated 29.11.1995 passed by the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel 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 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect 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 establi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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 foun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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