JUDGMENT Hon’ble Pramod Kumar Srivastava, J.—Original suit No. 934/2006 (Ankur Agrawal v. Smt. Hirakali and others) was filed for specific performance of registered contract dated 25.6.2009 executed between the plaintiff Ankur Agrawal and Om Prakash (predecessor in interest of defendants) for sell of disputed property in favour of the plaintiffs. According to plaint case, plaintiffs and Om Prakash had executed said registered sale-deed in which it was agreed that owner of disputed property Om Prakash will sell the said property for a consideration of Rs. 1,60,000/- in favour of plaintiffs, and at the time of execution of said agreement to sell Om Prakash had received advance of Rs. 70,000/-. The plaintiff had been ready and willing to perform his part of such contract but earlier Om Prakash and thereafter his successor in interest, namely, defendants had not executed the sale-deed; therefore, plaintiffs had filed suit for specific performance of said contract. 2. Defendants (present appellants) had filed written-statement in original suit. Then trial Court had framed issues, accepted evidences of the parties and thereafter Additional Civil Judge (S.D.) Court No. -4 Bareilly had passed the judgment dated 25.5.2009, by which suit was decreed and defendants were directed to receive a consideration of Rs. 90,000/- from plaintiffs and execute the sale-deed in his favour. 3. Aggrieved by the said judgment dated 25.5.2009, defendants had filed Civil Appeal No. 50/2009 (Smt. Hirakali and another v. Ankur Agrawal and another. This appeal was preferred by the three defendants of original suit whereas the defendant Sunil Kumar s/o Om Prakash had not preferred appeal, so he was made formal respondent in first appeal. The Additional Judge/Special Judge (SC/ST Act), Bareilly had afforded opportunity of hearing to the parties, heard their arguments, framed point of determination and thereafter passed judgment dated 30.7.2015, by which first appeal was dismissed and judgment of trial Court was confirmed. Aggrieved by the judgments of trial Court as well as the first appellate Court, this second appeal has been preferred by the appellants of first appeal. (two defendants of original suit). 4. Learned counsel for the appellants contended that appellants had no knowledge of registered agreement to sell, but the two Courts below had erroneously passed the judgment against it. He also contended that finding of the two Courts below are erroneous and perverse which cannot sustained. (two defendants of original suit). 4. Learned counsel for the appellants contended that appellants had no knowledge of registered agreement to sell, but the two Courts below had erroneously passed the judgment against it. He also contended that finding of the two Courts below are erroneous and perverse which cannot sustained. He also placed alternative arguments that at the time of specific performance of contract of sale of property, Court should consider the equity that after long time of passing of the agreement to sell the value of property would enhance, thereafter at the time of granting of relief for specific performance, amount of consideration should be enhanced. 5. A perusal of the records reveal that it has been admitted fact that Om Prakash was original owner of the disputed property for which registered agreement to sell was executed, and later on Om Prakash had died. The defendants/appellants had challenged the execution of registered agreement to sell by Om Prakash in favour of plaintiffs/respondents. On this point, the trial Court had framed issue No. -1 to the effect that whether predecessor in interest of defendants, namely, Om Prakash had executed the registered agreement to sell dated 25.6.2005 in favour of plaintiff for sale of disputed property. On this point trial Court had accepted evidences of the parties. In this regard, plaintiff had adduced four witnesses in oral evidences and defendants/appellants side had also adduced three witnesses in oral evidences. Trial Court had discussed oral and documentary evidences and thereafter gave specific finding of fact in favour of plaintiffs/respondents holding that Om Prakash had executed registered agreement to sell with plaintiff for sale of disputed property to plaintiff for consideration of Rs. 1,60,000/- and thereafter accepted Rs. 70,000/- as advance consideration. When these findings were challenged by the appellants side in first appeal, then first appellate Court had also considered the facts, circumstances and evidences and confirmed findings of trial Court on this point. 6. So far as perversity of appreciation of evidences by two Courts below is concerned, in this regard a perusal of evidences and findings reveal that both the Courts below had rightly reached to the conclusion that Om Prakash had entered into agreement with plaintiffs/respondents and executed registered agreement to sell disputed property as mentioned in the plaint. The case of defendants (present appellants) was simply of denial. The case of defendants (present appellants) was simply of denial. Admittedly they were not a party to said agreement to sell and had no personal knowledge about it when plaintiff had properly proved the plaint case regarding execution of registered agreement to sell in question and discharged his burden. Then the trial Court as well as first appellate Court had rightly reached to the conclusion mentioned in the judgment on this point. There appears no illegality or perversity in finding of the two Courts below. The dispute between the parties in this matter is only that whether predecessor in interest and owner of disputed property (Om Prakash) had executed disputed registered agreement to sell in favour of Ankur Agrawal as mentioned in plaint or not. It is a question of fact that can only be decided on the basis of evidences. There was nothing in it that may be treated as point of law. Two Courts below had appreciated facts, evidences, circumstances and thereafter gave concurrent findings of facts that plaint case in this regard has been proved and Om Prakash and Ankur Agrawal had executed the registered agreement to sell as mentioned in plaint. By the decree of two Courts below the defendants were directed to receive remaining amount to sale consideration to the extent of Rs. 90,000/- and execute the sale-deed of said property. No question of law arises in this matter relating to dispute between the parties. 7. Learned counsel for the appellants had cited the case of Pratap lakshmand Muchandi v. Shamlal Uddavadas Wadhwa, Laws (SC)-2008-1-13 and also sited in ( (2008) 12 SCC 67 ), in which Apex Court had held as under: “16. But at the same time it is also true that the agreement to sell was executed way back in the year 1982. Since after 1982 much water has flown under the bridge, the value of the real estate has shot up very high, therefore, while exercising our jurisdiction under Section 20 of the Specific Relief Act, 1963 we would like to be equitable and would not allow the sale of property to be executed for a sum of Rs. 1,20,000. The litigation has prolonged for almost 25 years and now at last reached at the end of the journey. Therefore, we have to settle the equity between the parties. 1,20,000. The litigation has prolonged for almost 25 years and now at last reached at the end of the journey. Therefore, we have to settle the equity between the parties. We hold that the agreement to sell was genuine and it was executed for bona fide necessity but because of the passage of time we direct that the respondents shall pay a sum of Rs. 5 lakhs in addition to Rs. 1,10,000 as out of Rs. 1,20,000, Rs. 10,000 has already been paid as advance. On receipt of Rs. 1,10,000 and Rs. 5 lakhs (Rs 6,10,000) the appellants shall execute the sale-deed for the property in question.” 8. I am in agreement with this contention that if litigation has prolonged for about 25 years or so, then equity should be considered so that any party may not be prejudiced without sufficient reason. The citation as above discussed the agreement executed between the parties for almost 25 years but in present matter this is not a case. In present matter the registered agreement to sell was executed on 25.6.2005 and it was agreed between the parties and within one year the registered sale-deed would be executed. Since then plaintiffs/respondents is showing his eagerness and willingness to get the said contract executed. Earlier he had sent several notices before the lapse of period of one year. Thereafter he again sent notice for specific performance of said agreement to sell. On the other hand defendants/respondents had been ignoring those notices and taking undue benefit of their possession and had been delaying the matter. It is pertinent to mention that no plea of the escalation of value of property was taken by the defendants/appellants either in their written statement or in first appeal. In fact no such plea was raised by the appellants in first appeal and its plea has suddenly been taken directly in second appeal before this Court. Rule 2 of Order XLI CPC provides for the grounds which may be taken in appeal. It lays down that the appellant shall, not except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal. Therefore this reason also the new plea of the escalation of value of property should be permitted to be taken directly in second appeal. It lays down that the appellant shall, not except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal. Therefore this reason also the new plea of the escalation of value of property should be permitted to be taken directly in second appeal. In absence of such plea before first appellate Court, appellant had no right to argue on this point even before first appellate Court then permitting him on such point in second appeal directly for admission of appeal may cause pre judice to rights of respondents. 9. On examination of the reasoning recorded by the trial Court, which are affirmed by the learned first appellate Court in first appeal, I am of the view that the judgments of the trial Court as well as the first appellate Court are well reasoned and based upon proper appreciation of the entire evidence on record. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial cout that has been affirmed by the first appellate Court to warrant interference in this appeal. No question of law, much less a substantial question of law was involved in the case before this Court. None of the contentions of the learned counsel for the appellant-plaintiffs can be sustained. 10. In view of the above, this Court finds that no substantial question of law arises in this appeal. The second appeal is dismissed. ———————