Kirty, J. - (1.) THIS appeal is directed against the decree passed by the learned Ad ditional Civil Judge, Saharanpur, dismissing the suit filed by the appellant against the two respondents for specific performance of the contract to reconvey a house along with some land which the appellant had sold to respondent No. 1 for Rs. 25.000/- by sale deed dated 12-12-1958. On that very data two other documents were executed. One Was an agreement for the reconveyance of the property in question to the appellant by respondent No. 1. The other document was a rent-note executed by the appellant in favour of respondent No. 1 agreeing to pay rent at the rate of Rs. 250/- per month for the property in question. Respondent No. 2 is a transferee from respondent No. 1. On 21-1-1959 respondent No. 1 transferred the property which he had purchased from the appellant for the same consideration of Rs. 25.000/-. In the plaint the appellant prayed that a decree for specific perform ance of the agreement to reconvey be passed either against defendant No. 1, i.e. the pre sent respondent No. 1, or against the two defendants or against any one of them who may be found by the court to be liable to perform the contract. The suit was contested by defendant No. 2 only. Defendant No. 1, namely, Piarey Lal alias Budh Sain does not appear to have entered appearance. No written statement was filed by him. The trial Court, on the pleadings of the parties, framed in all eight issues. Issues numbered 1, 2 and 3 related to a question which had arisen as to whether the transfer in favoin of defendant No. 1 by the plaintiff made on 12-12-1958 was a mortgage by conditional sale or it was an out and out sale. Here it may be mentioned that in the plaint the plaintiff had set up an alternative case that the transaction was a mortgage by condi tional sale and he had also sought an alter native relief by way of redemption. The suit was decided by the trial Court against the plaintiff and the relief for redemption was also refused. The learned Counsel for the appellant rightly conceded that the plea that the transaction was a mortgage by con ditional sale was not tenable. Similarly issue No. 6 was also an issue dealing with a question incidental to the main question whe ther the transaction was a mortgage by con ditional sale. The remaining issues are as follows:- (3) Whether defendant No. 2 is bound by the agreement dated 12-12-1958 between the plaintiff and defendant No. 1 as alleged in para 19 of the plaint? If so, its effect? (5) Whether defendants Nos. 1 and 2 are to re-sell the property in favour of the plain tiff? If so, on payment of what amount? (7) Plaintiff's relief, if any? (8) Whether the suit is barred by time? These issues were also answered against the plaintiff and it was held that the plaintiff had no right to any of the reliefs claimed by him. The suit was, therefore, dismissed in to.
(2.) AS has already been mentioned, on 12-12-1958 three documents were executed. In this appeal we are not really concerned With the rent-note, nor are we directly con cerned with the sale-deed dated 12-12-1958. The questions which directly arise and which require consideration are as follows: - (1) Whether under the agreement dated 12-12-1958, Ext. 2, time was of the essence of the contract? (2) Whether the subsequent sale by de fendant No. 1 in favour of defendant No. 2 on 21-1-1959 had the effect of repudiating the agreement to reconvey the property to the plaintiff by defendant No. 1? (3) Whether the suit was barred by limi tation? (4) Whether it was necessary for the plaintiff-appellant to prove that he was ready and willing to perform his part of the agree ment or that he had called upon the defen dants or defendant No. 1, at any rate, to re-convey the property within the stipulated pe riod of two years? Before proceeding to consider the above questions, we may mention that the trial Court has, found as a fact that the plaintiff did not within a period of two years from 12-12-1958 make any attempt nor offered to pay the amount of Rs. 25.000/- to the defendants or either of them. Here we may note that the trial Court has also re corded a finding to the effect that defendant No. 2 had never extended the period of two years mentioned in the agreement dated 12-12-1958; and another finding that defendant No. 2 is bound by the agreement dated 12-12-1958 between the plaintiff and defendant No. I. The finding that defendant No. 2 was bound by the agreement executed by defendant No. 1 in favour of the plain tiff to reconvey the property has not been assailed before us by the learned Counsel appearing for respondent No. 2. Learned counsel for the appellant did not also direct ly challenge this finding, but in the course of arguments submitted that defendant No. 2 was not a privy to the said agreement and, therefore, the plaintiff had no legal right to demand performance of the agreement from defendant No. 2.
(3.) SRI K. C. Saxena, learned counsel for the appellant challenged the finding of the trial Court that the plaintiff had not with in the stipulated period of two years offered to defendant No. 1 or defendant No. 2 to perform his part of the contract, nor tender ed or offered to tender the requisite sum of Rs. 25, 000/-. The material evidence on the point to which our attention was invited con sists of the oral testimony of the plaintiff himself and that of Premnath Bhatia (P. W. 2) who at the relevant time, was, according to the plaintiff and the witness himself, the plaintiff's manager. Besides this oral testi mony, there is only one other document on the record, namely, Ex. 6 dated 17-1-1961 which possibly may have some bearing on the matter. Ex. 6 is the reply given on be half of defendant No. 2 to a notice dated 4-1- 1961 which the plaintiff had given to de fendant No. 2. The plaintiff did not sum mon the original notice dated 4-1-1961 from defendant No. 2 nor did he produce any copy thereof as secondary evidence. There fore, we do not know what allegations had, in fact, been made in that notice dated 4-1-1961. Paragraph 3 of Ex. 6, however, sug gests that in the notice dated 4-1-1961 an allegation was made that prior to the giving of the notice either the plaintiff himself or some other person on his behalf had ap proached defendant No. 2 with the demand for the reconveyance of the property on pay ment of Rs. 25, 000/-. The said paragraph 3 reads: "That it is denied that you or any per son on your behalf ever approached or visit ed my client or that my client ever held out any promise to resell the property to you. The allegations made in the notice in this respect are totally baseless and false." It is, clear therefore, that even if there was some allegation in the notice dated 4-1-1961 about the plaintiff or his agent approaching defendant No. 2, that allegation was catego rically denied. In the plaint it was averred (vide paragraph 22) that towards the end of November, 1960, the plaintiff had sent his re presentative to defendant No. 2 for the pur pose of getting the property reconveyed on payment of the requisite sum, but defendant No. 2 said that he would have no time in December and that the plaintiff's representa tive should come in January with the requi site sum and that then the deed of re-con veyance would be executed with the concur rence and assistance of defendant No. 1. It was also afieged in the defendant No. 2 had assured the plaintiff's representa tive that no question of limitation would really arise. It was further alleged in the plaint (vide paragraph 23) that on such as surance being given by defendant No. 2, the plaintiff's representative went to defendant No. 1 in the beginning of December, 1960 and intimated the said defendant about the allegations contained in paragraph 19 of the plaint and also about his visit to defendant No. 2. Defendant No. 1, it was alleged in the plaint, assured the plaintiff's representa tive that there was nothing to worry about and that the property would be re-conveyed and that there would be no question of limi tation. It was also alleged in the plaint that defendant No. 1 asked the plaintiff's repre sentative to come to him before going to de fendant No. 2 again, as asked by the latter, in the month of January for obtaining the deed of re-conveyance and that defendant No. 1 would also accompany the plaintiff's representative and get the necessary deed of re-conveyance executed. In evidence how ever, a departure was made by the plaintiff himself as also by his manager. The court below pointed out that there was substantial variation between the oral testimony of the plaintiff's witnesses and the averments made in the plaint. This was stated to be one of the reasons for not treating the plaintiff's witnesses as reliable. After hearing the learn ed counsel for the parties and after consider ing the relevant portions of the evidence of the plaintiff's witnesses, we are in full agree ment with the view taken by the trial Court. There is also some inherent improbability hi the version given by the plaintiff as regards sending his manager to defendant No. 2 in November and to defendant No. 1 in Decem ber 1960. Had it been a fact that the said Manager had visited defendant No. 1 and defendant No. 2 both and they had given certain assurances in regard to the execution of the deed of reconveyance, there appears to exist no reason why the plaintiff did not either go personally to the defendants or, at any rate, send his manager to them in Janu ary along with the requisite money for getting the deed of re-conveyance executed. In their depositions the plaintiff's witnesses have made no mention of any such visit in the month of January to either of the defen dants. On the contrary, it seems that on 4-1-61 a notice was given by the plaintiff to both the defendants. The giving of the notice itself without making a second visit to the defendants suggests that the version given by the plaintiff about sending his manager to defendant No. 2 in November, 1960 and to defendant No. 1 in December, 1960 is not true. The finding given by the trial Court that prior to sending the notice dated 4-1-1961 the plaintiff did not approach either of the defendants for getting the deed of re-con veyance executed on payment of the requi site sum must therefore be affirmed. ;