R.R.Mishra, J. - (1.) THIS is a plaintiff's second appeal arising out of a suit filed by him for specific performance of the contract. The trial court has decreed the suit. On appeal the lower Appellate Court has allowed the appeal of the defendant and has dismissed the suit of the plaintiff The case of the plaintiff is that he is Bhumidhar of four plots, as described in the plaint situate in village Bhairampur Pargana Aurangabad Tahsil Misrikh district Sita- pur. In the year 1958 the plaintiff was in need of money He, therefore, secured a sum of Rs. one thousand by contacting the defendant- It was agreed between the two that the plaintiff should execute a simple mortgage with possession of the land in favour of the defendant in respect of the land. The plaintiff averred that he went to the Registration Office in connection with the said mortgage but the defendant got a sale-deed executed by him instead of the mortgage deed. Hence the defendant refused to sign the deed. Thereupon it was settled between the parties that the plaintiff shall be entitled for the retransfer of the land from the defendant within a period of 20 years on payment of lumpsum amount of Rs. one thousand to the defendant. In pursuance thereof besides the sale-deed executed on 3rd February, 1958, an agreement to sell was also executed on the same date, i.e. 3rd February, 1938. It may be mentioned that admittedly since the date of the execution of the sale deed in question the defendant had been using the land in dispute. However, it is alleged that later on the plaintiff visited the defendant several times with Rs. one thousand but the defendant did not respond to reconvey the said land Hence the suit for specific performance was filed by the plaintiff. In the present suit between the parties admittedly the plaintiff had always been ready and willing to pay the sum of Rs. one thousand and perform his part of the contract. In defence it was stated on behalf of the defendant that the plaintiff has executed the sale in his favour unconditionally and that since the defendant is an old man of 90 years he does not remember limitation to reconvey as given in the agreement.
(2.) I have heard Sri R. K. Sharma, learned counsel for the appellant and Sri Akhilesh Sahai, the learned counsel appearing for the respondent. From a perusal of the judgment of the lower Appellate Court it is evident that the appellate court has non suited the plaintiff on the ground that the agreement for sale in question being not registered, it could not be enforced; that the suit is barred by limitation and also that no case has been made out for the exercise of discretion in favour of the plaintiff for decreeing the suit for specific performance. First submission, made by the learned counsel for the plaintiff is that admittedly in the present case a copy of the sale-deed dated 3rd February, 1958 has not been filed by the plaintiff. Along with the assistance of learned counsel for both the parties, 1 have also scrutinised the record of the lower court. I also do not find that a copy of the sale-deed dated 3rd February, 1958 has been filed in the present case. Hence it is not clear as to whether in the said sale-deed there was any stipulation regarding reconveyance of the property. The lower Appellate Court while . coming to the conclusion that the agreement to sell dated 3rd February, 1958 required registration has, in my opinion, omitted to consider the proviso of section 58 sub-clause (c) of the Transfer of the Property Act. The same reads as follows : - "Provided that no such transaction shall be deemed to be a mortgage unless the condition is embodied in the document which effects or purports to effect the sale" As I have stated above the plaintiffs have not filed the sale-deed in question. Therefore, it is not established that the sale-deed embodied any condition. Hence under the law the sale-deed in question shall be taken to be an out and out sale. In my opinion, the Lower Appellate Court has approached the case by omitting to take into consideration the said proviso and has wrongly arrived at the said finding. The finding of the Lower Appellate Court that since the sale-deed as well as the agreement to sell were entered on the same date, they were part and parcel of the same transaction is virtually in the teeth of the said proviso of section 58 (cj Transfer of Property Act and, therefore, cannot be upheld fa case the sale-deed dated 3rd February, 1958 is not a mortgage and is an out and out sale then question arises as to whether the other document which is an agreement to sell requires registration. From perusal of section 54 of the Transfer of Property Act, it is clear that a contract for sale of immovable property does not itself create any interest or charge on the said property. In this view of the matter the agreement to sell in question, in my opinion, did not require any registration It is made clear that the agreement to sell in the present case is dated 3rd February, 1958 and, therefore, the amended provision which came into force from the year 1977, with regard to the registration of the agreement to sell, will not apply to the present case. Thus I conclude that the Lower Appellate Court was wrong in law in holding that the agreement to sell in 1he present case could not be enforced as it was not registered On the other hand, I find, in view of the above discussion that the said agreement to sell did not require any registration. Next point that is up for consideration in the present appeal is as to whether the Lower Appellate Court is right in law in holding that the suit is barred by limitation. For coming to this finding the Lower Appellate Court has recorded a peculiar reason. It has stated in its judgment that since the plaintiff had visited the defendant after five years from the execution of the deed of agreement to sell then by filing the suit after 14 years of execution of the said agreement the suit becomes barred by time. In the judgment the Lower Appellate Court has no doubt taken into consideration the argument, advanced on behalf of the plaintiff that 20 years period was given in the agreement and therefore the suit, which was filed in the year 1974, was within the period of 20 years from 3rd February, 1958. The argument raised on behalf of the plaintiff has been met by the Lower Appellate Court by stating as under : "In fact the agreement had allowed maximum period of 20 years for the retransfer of the land but as soon as the plaintiff visited defendant for the first time after five years for the execution of the sale deed, the cause of action arose to him then and there and he could file the suit within three years thereafter." At this stage it will be relevant to point out that in the agreement to sell, a copy which has been filed as Ext. 2 in the case there is specific stipulation as under : "Agar 20 sal beet jave aur rupiya na ada kar sake to koi majaj manda gopal ko bainama vapas karne ka na hoga aur koi hak aaraji par baki na rahega."
(3.) IN view of the above specific stipulation it is, therefore, clear that the amount of Rs. one thousand could have been tendered by the plaintiff up to 20 years. IN my opinion, the view taken by the Lower Appellate Court is manifestly erroneous on the face of the above specific stipulation of 20 years for payment by the plaintiff To my mind the amount could have been tendered by the plaintiff up to 20 years from 3rd February. 1958 and the mere fact that he tendered the amount within five years will not disentitle to him to claim the remedy. Hence the view taken by the Lower Appellate Court that the suit is barred by time is also erroneous in law. Last comes the question as to whether the Lower Appellate Court was right in law in refusing the relief of specific performance on the ground that it is discretionary. The said relief has been refused on the ground that the value of the property has increased due to improvements, made by the defendant and also due to irrigation facilities along with the increase of price of the land itself with the passage of time. From a perusal of the record, I find that the land in dispute was Banjar in nature. The trial court has recorded a finding that for ploughing the said land, the defendant had invested a sum ranging from Rs 500/- to Rs. 700/- only. No finding has been recorded by the trial court regarding irrigation facilities and the said finding so given by the Lower Appellate Court is without any material on record. The only thing that has happened is that there has been an appreciation in the value of land. That may be so but in the face of the specific stipulation entered into by the parties in the present case, that the property in question shall be reconveyed in case payment is made within 20 years, it cannot, in law, be held that the plaintiff is not entitled to the relief of specific performance in case he has otherwise made out a case for the same. Therefore, the finding recorded by the Lower Appellate Court refusing the' relief on the last ground is also, in my opinion, not justified in law. In view of what has been stated above, in my opinion, the plaintiff is entitled to relief, sought for, by him.;