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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1756 OF 2002
Gauri Shankar Prasad and Ors. ...Appellants
Versus
Brahma Nand Singh ...Respondent
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. Appellants' Second appeal in terms of Section 100 of the
Code of Civil Procedure, 1908 (in short the `Code') having been
dismissed by the Jharkhand High Court, this appeal has been
filed. The Title Suit No.17/92-49/93 was decreed by the
learned Additional Munsif, Garhwa. The judgment and decree
were upset by learned District Judge, Palamau in Title Appeal
No.10 of 1997. Second Appeal was filed by the plaintiffs before
the High Court.
2. The case of the plaintiffs-appellants is that the plaintiffs
were in need of money, hence, offered to mortgage their land
detailed in Schedule D of the plaint with condition to
repurchase the same on consideration of Rs.36,600/- The
defendant-respondent, namely, Brahmanand Singh and one
Dasrath Prasad Keshri were willing to purchase jointly the
land of Schedule D and, accordingly, the plaintiffs executed a
registered deed of sale dated 5.2.1986. The respondent and
Dasrath Prasad Keshri on the same day also executed a
registered deed of agreement and agreed to re-convey the
purchased land to the plaintiffs on payment of consideration
money to them. It has been alleged that though the deed of
sale was executed by the plaintiffs-appellants in favour of the
respondent and Dasrath Prasad Keshri, they always remained
in cultivating possession of the lands, as described in
schedule D of the plaint. It is also alleged that the plaintiffs-
appellants were in need of rs.15,000/-. The respondent and
Dasrath Prasad Keshari became ready to keep the land in
mortgage, but only after calculating the interest thereupon at
the rate of 4 per cent for three years, the price was accordingly
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fixed at Rs.36,600/-. It is further alleged that the plaintiffs--
appellants in the first week of January, 1989, repaid
Rs.5,500/- to the respondent in presence of the witnesses
upon which he promised to re-convey the suit land, but even
thereafter he did not re-convey the land and extended time for
execution of the deed of re-conveyance Ultimately on
l0.4.1992, Dasrath Prasad Keshri received consideration
money of his share i.e. Rs.18,300/- and executed the deed of
sale re-conveying half of the land of Schedule D in favour of
the plaintiffs. It is also claimed that the plaintiffs also
requested the respondent to receive his consideration money
and to re-convey the schedule D land of his share but he
delayed the matter, whereupon the plaintiffs sent registered
legal notice to defendant No.l but even then the respondent
failed to perform his part of contract and hence, the plaintiffs
filed the suit.
3. The respondent contested the suit and filed written
statement alleging therein that the deed of agreement
contained a specific terms that if the plaintiffs paid back the
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consideration amount at any point of time within three years
then the respondent and Dasrath Prasad Keshri would re-
convey the land of Schedule 'D' . It is also claimed that the
plaintiffs remained in possession of the land after execution of
the sale deed. The plaintiffs-appellants had never been willing
to perform their part of contract nor they had paid money
within the stipulated period of three years as contained in the
agreement. According to him, the plaintiffs-appellants never
paid any money to the defendant nor they had requested for
extension of time nor the defendant ever orally agreed to
extend the time. He has also denied that on 10.4.1992 the
plaintiffs tendered any consideration money nor there had
been any such occasion till date and, as such, the plaintiffs
have lost their right of re-conveyance.
4. Ten issues were framed by the trial court and the
witnesses were examined. After having heard both the parties
and considering the evidence on record, the trial court decreed
the suit in favour of the plaintiffs-appellants. The defendant-
respondent preferred appeal before the District Judge against
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the judgment and decree of the court below, who after hearing
both sides and considering the evidence on record, allowed the
appeal after setting aside the judgment and decree of the
court below.
5. The appellate court framed the following points for
consideration:-
I. Whether the suit of the plaintiffs is barred by law of
Limitations?
II. Whether the plaintiffs-appellants were always ready and
willing to perform their part of contract as envisaged u/s
16(c) of the Specific Relief Act?
III. Whether the time was essence of contract?
IV. Whether the plaintiffs-appellants are entitled to get
decree of specific performance of contract, as prayed
for?
V. Whether the judgment in question is fit to be set
aside?
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6. The lower Appellate Court allowed the appeal by setting
aside the judgment and decree of the trial Court. The question
which was formulated by the High Court was as follows:
"Whether the time was an essence of
agreement (Ext.2) and whether the
plaintiffs/appellants were ready and willing to
perform their part of contract."
7. The lower Appellate Court considered the question as to
whether the plaintiffs-appellants had performed or had always
been ready and willing to perform the essential terms of the
contract to be performed by him. The first Appellate Court
held that the plaintiffs never offered the consideration amount
within the period fixed by the contract. The other alleged
vendee Dasrath was examined in the Court below as PW-7.
The High Court noted that there was no material to show that
the consideration amount was offered within the stipulated
period of three years. With these findings, the appeal was
dismissed.
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8. In support of the appeal, learned counsel for the
appellants submitted that the co-vendee had accepted the
money. The first Appellate Court and the High Court should
not have held that the suit was barred by time or that there
was no evidence for offering payment of the balance money.
9. Learned counsel for the respondent on the other hand
supported the judgment and submitted that the findings
recorded by the first Appellate Court were arrived at after
analysing the evidence in great detail. Therefore, the Second
Appeal was really not competent.
10. Coming to the facts of the case it is to be noted that the
evidence of PW-7 the co-vendee clearly shows that no payment
was made in his presence. His evidence is to the following
effect:
"After 3 years Gauri Shankar did not return
the whole amount but returned 5-7 thousand
in three instalments. How much in total he
paid to me I do not remember. Like this only
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he paid money to B.N. Singh but the same was
not paid in front of me.
That Gauri Shankar Bind and other failed to
return the money till the date of 5.2.1989 as
per the agreement said amount to me and B.N.
Singh."
11. The evidence of PW-2 is also not of any assistance to the
appellants. In his evidence in paras 3 and 6 it has been stated
as follows:
"Dashrath Saav has returned the land to
the petitioners when they have returned the
money. But B.N. Singh has not returned the
land to the petitioner in spite of the fact that
they are ready to pay the money. The
petitioners are also ready today to return the
money.
I have knowledge about the negotiation
about this land. I have no idea about the
documents which are prepared. No talks about
sale of the land were held in front of me. The
paper are for the mortgage for the value of
Rs.36,000/-."
12. The High Court has rightly observed that the trial Court
has made a new case which was not the case of the parties.
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13. Learned counsel for the appellants fairly conceded that
though the clinching evidence about the payment in the
presence of the witnesses may not be there, according to him
the evidence has been wrongly analysed by the first appellate
court and the High Court. This Court has in several cases held
that if sale and agreement to repurchase are embodied in
separate documents, it cannot be a case of the mortgage and in
such cases relating to re-conveyance time is always the essence
of the contract. (See Chunchun Jha v. Ebadat Ali (AIR 1954 SC
345). In Bismillah Begum (Smt.) v. Rahmatullah Khan (dead)
by Lrs. (AIR 1998 SC 970)) it was held as follows:
"We may also add that in contracts
relating to re-conveyance of property, time is
always the essence of the contract as laid
down by the Federal Court in the case of
Shanmugam Pillai v. Analakshmi Ammal (AIR
1950 FC 38) and also laid down by this Court
in Caltex (India) Ltd. V. Bhagwan Devi Marodia
(AIR 1969 SC 405). The relevant passage in
the judgment of this Court in Caltex (India)
Ltd. At page 407 in para 3 reads as follows:
"At common law stipulations
as to time in a contract giving an
option for renewal of a lease of land
were considered to be the essence of
the contract even if they were not
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expressed to be so and were
construed as conditions precedent.
Equity followed the common law
rule in respect of such contracts
and did not regard the stipulation
as to time as not of the essence of
the bargain. An option for the
renewal of a lease, or for the
purchase or re-purchase of property
must in all cases be exercised
strictly within the time limited for
the purpose otherwise it will lapse."
14. In Chunchun's case (supra) it was observed as follows:
"If the sale and agreement to repurchase
are embodied in separate documents, then the
transaction cannot be a mortgage, whether the
documents, are contemporaneously executed
or not.
In the case of agreement of re-purchase,
the conditions of repurchase must be
construed strictly against the original vendor
and the stipulation with regard to time of
performance of the agreement must be strictly
complied with as the time must be treated as
being of the essence of the contract in the case
of an agreement of reconveyance."
15. The High Court also noticed that the claim of the
appellants that they paid the consideration amount on
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10.4.1992 is also of no assistance because the period of
limitation expired on 5.2.1992 and the suit was filed on
23.5.1992. As rightly noted by the High Court, there was an
agreement for re-conveyance and there was specific
stipulation for re-conveyance of the land within a period of 3
years which was admittedly not complied by the plaintiffs-
appellants. It is to be noted that the question formulated by
the High Court, by no stretch of imagination, is a substantial
question of law.
16. The appeal is dismissed.
..............................J.
(Dr. ARIJIT PASAYAT)
.............................J.
(P. SATHASIVAM)New Delhi,
July 11, 2008 11
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