JUDGMENT Hon’ble Pramod Kumar Srivastava, J.—Heard learned counsel for the parties on point of admission of second appeal and perused the records. 2. In Original Suit No. 563/1995, Mohd. Faizaan v. Smt. Husn @ Hasan, plaint case was that defendant had entered into registered contract dated 14.12.1993 for sale of her disputed property in favour of plaintiff for Rs. 93,500/- and accepted Rs. 60,000/- as advance consideration. Thereafter defendant again received Rs. 15,000/- as advance consideration in Sub-Registrar office. Under the contract, defendant had to execute sale-deed of disputed property. Plaintiff had been ready and willing to perform his part of contract, but defendant had not executed sale-deed in spite of repeated request and written notice served on her. Then plaintiff had filed suit for specific performance of said contract. 3. In written-statement, the defendant denied the plaint averments and pleaded that her house was damaged in rainy season in year 1993, then her husband has taken bricks of Rs. 12,000/- from defendant and as security for payment of said amount, defendant and her husband were asked to execute document. Then on insistence of plaintiff, defendant had signed documents and placed thumb impression on them. When defendant had refunded the amount of loan, then plaintiff had not cancelled those documents and filed this suit. Defendant had never intended to execute agreement to sell, but the documents in question were result of fraud played by plaintiff. Therefore, plaintiff’s suit should be dismissed. 4. After framing issues and accepting evidences of the parties, the Additional Civil Judge (Senior Division), Saharanpur had decreed the suit for relief of specific performance by its judgment dated 24.10.2013. In this judgment, trial Court had given specific finding that plaint case about execution of registered agreement to sell by defendant in favour of plaintiff and receiving of Rs. 60,000/- and Rs. 15,000/- as advance consideration by defendant in that regard is proved. Trial Court has also held that during cross-examination defendant had admitted that she had purchased bricks of Rs. 12,000/- from plaintiff on cash payment, so her those averment of written-statement is incorrect that she had executed documents for securing payment of Rs. 12,000/- as price of bricks. On the basis of the evidences, trial Court had found that plaint case is proved, therefore, it had decreed the original suit. 5. 12,000/- from plaintiff on cash payment, so her those averment of written-statement is incorrect that she had executed documents for securing payment of Rs. 12,000/- as price of bricks. On the basis of the evidences, trial Court had found that plaint case is proved, therefore, it had decreed the original suit. 5. Against the judgment of trial Court, Civil Appeal No. 84/2013 was preferred by the defendants, which was heard and dismissed by the judgment dated 6.2.2016 of Additional District Judge, Court No.10, Saharanpur. In this judgment, first appellate Court had decided all the issues relating to this matter in favour of plaintiff and against defendants. By independently appreciating evidences, lower appellate Court had confirmed the judgment of trial Court with finding that plaint case regarding execution of registered agreement to sell and the plaintiff’s readiness and willingness to perform his part of contract is proved. 6. Against the judgment of trial Court as well as the first appellate Court, present second appeal has been preferred by defendant of the original suit. 7. Learned counsel for the appellant contended that description of the property mentioned in plaint is incorrect. He submitted that the disputed property does not belong to defendant-appellant. He further submitted that execution of registered agreement to sell in question is admitted by appellant only up to the extent that defendant had executed this document for security of loan. He further pleaded that finding of trial Court as well as lower appellate Court on facts are incorrect. He contended that no notice was given to defendant before institution of suit and that the appellate Court had wrongly confirmed the finding of trial Court. Therefore, appeal should be admitted for being allowed. 8. Learned counsel for the respondent refuted the contentions of appellants’ side and contended that in written-statement the defendant-appellant had pleaded that she had purchased bricks of Rs. 12,000/- without payment and for securing that payment, she had executed document in question, but in her cross-examination she had admitted that purchase of bricks of Rs. 12,000/- by her was on cash payment basis, so defence taken in written-statement is incorrect and false. He further contended that concurrent finding of the two lower Courts are neither erroneous nor incorrect. Such findings cannot be reversed in second appeal. 12,000/- by her was on cash payment basis, so defence taken in written-statement is incorrect and false. He further contended that concurrent finding of the two lower Courts are neither erroneous nor incorrect. Such findings cannot be reversed in second appeal. He also submitted that description of property given by plaintiff is not vague or erroneous, and no plea of non-identifiability of disputed property was taken in written-statement; so judgment of lower Courts should be confirmed and appeal should be dismissed. 9. So far main contention of appellants’ side regarding alleged wrong description of disputed property is concerned, this plea is not acceptable. From the available record, it is found that not only the identifiability of disputed property was not challenged in written-statement or memorandum of first appeal by defendant-appellants but also the descriptions of disputed property mentioned in document of registered agreement to sell dated 14.12.1993 and in plaint are same and identical. Apart from it, such plea was not taken by appellant in his written-statement specifically. Even in memorandum of first appeal such plea was not set forth by defendant-appellants. Neither had they sought permission in first appeal to raise such objection. Under Order XLI, Rule 2 CPC, such plea cannot be raised even in first appeal to the prejudice of respondent. Therefore, such plea cannot be raised by them directly in second appeal. 10. So far the appellants’ argument of non giving of notice before institution of original suit is concerned, this contention is also not acceptable. In their oral testimony, plaintiff-respondent side had given evidences regarding giving and service of notice to defendant-appellants. No evidence was given in this regard by defendant side to controvert the evidences of plaintiff. So on facts, the finding of lower Courts appear correct and acceptable. This plea of non-service of alleged notice was also not raised in memorandum of first appeal. Under Order XLI, Rule 2 CPC, such plea cannot be raised even in first appeal, causing prejudice to respondent. Accordingly, such plea cannot be raised directly in second appeal. 11. Learned counsel for the appellant had placed arguments on facts of execution of registered agreement to sell in question. In this regard, trial Court as well as the first appellate Court had independently and separately appreciated all the evidences available on record. Accordingly, such plea cannot be raised directly in second appeal. 11. Learned counsel for the appellant had placed arguments on facts of execution of registered agreement to sell in question. In this regard, trial Court as well as the first appellate Court had independently and separately appreciated all the evidences available on record. After meticulous scrutinizing the evidences, they have given independent but a concurrent finding that plaintiff had proved the plaint case but defendants’ plea of defence mentioned in written-statement were found incorrect and unacceptable. Those conclusions reached by the trial Court as well as first appellate Court are apparently correct and acceptable without any infirmity. Such findings cannot be interfered in second appeal by re-appreciation of evidences. 12. The points to be determined in this matter was as to whether defendant had willingly executed registered agreement to sell of disputed property in favour of plaintiff-respondent for consideration of Rs. 93,500/- and accepted Rs. advance consideration, and had been ready and willing to perform his part of contract. These are not question of law, but are questions of fact that could be decided on the basis of evidences, as has been done by the lower Courts. The another point to be determined was as to whether defence of execution of deed in question for alleged security of amount of Rs. 12,000/- is also not a question of law but is a question of fact. This question could be decided only on the basis of evidences, and has been done so by the two lower Courts. There appears no question of law involved in this matter before this Court for determination. The findings in this regard by lower Courts are found correct acceptable. 13. On examination of the reasonings recorded by the trial Court, which are affirmed by the 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 evidences on record. No question of law, much less a substantial question of law, is involved in this case before this Court. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial Court 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, is involved in this case before this Court. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial Court that has been affirmed by the first appellate Court to warrant interference in this appeal. None of the contentions of the learned counsel for the appellants-defendant can be sustained. 14. In view of the above, this appeal is dismissed. ——————