IMPORTANT POINTS
Agreement to sale does not create any interest in the land. Therefore section 48(d) of the Maharashtra Cooperative Societies Act, 1960 would not apply.
Findings of fact recorded by first appellate court are binding on High Court in second appeal.
New plea cannot be raised for the first time either before High court in second appeal or the Supreme Court under Article 136 of the Constitution.

JUDGMENT

Abhay Manohar Sapre, J.

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 Judge, Satara in R.C.A. No.9/1996, which arose out of judgment/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 1/12th 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. 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.

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 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.

15. This is how the High Court dealt with three pleas in the impugned judgment:

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