Abani Kumar Kirty, J. - (1.) This appeal is directed against the decree passed by the learned Additional 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 date two other documents were executed. One was an agreement for the reconveyance of the property in question to the appellant by respondent No. I. 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 performance of the agreement to reconvey be passed either against defendant No. 1, i.e. the present 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 favour 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 conditional sale, and he had also sought an alternative 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 conditional sale was not tenable. Similarly issue No. 6 was also an issue dealing with a question incidental to the main question whether the transaction was a mortgage by conditional 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 plaintiff? 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 toto.
(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 concerned 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 defendant 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 limitation? (4) Whether it was necessary for the plaintiff -appellant to prove that he was ready and willing to perform his part of the agreement or that he had called upon the defendants or defendant No. 1, at any rate, to re -convey the property within the stipulated period of two years?
(3.) 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 recorded 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. 1. The finding that defendant No. 2 was bound by the agreement executed by defendant No. 1 in favour of the plaintiff 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 directly 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.;