- (1.) N. L. Ganguly, J. This second appeal by the plaintiff is against the concurrent judgment of the two courts below refusing to decree the plaintiff's suit for specific performance of the contract in respect to the property in question. Admittedly, the property in question was sold by the plaintiff by registered sale-deed for a consideration of Rs. 1500 on 18-1-65 in favour of the defendants. The same day, Banne Ali also execution agreement to resale the property in question in favour of the plaintiff on the terms and conditions as written thereunder. One of the conditions in the agreement for resale was that the property will be purchased by the plaintiff within a period of four years from the date of execution of the said agreement failing which the agreement shall stand cancelled. Banne Ali died before expiry of four years period, leaving his heirs and wife as legal representatives. The defendants- respondents voluntarily extended the period of four years further by two years and executed the agreement of resale on 12-1-69 in continuation of the original agreement.
(2.) THE plaintiff in the plaint stated that he was willing and ready to purchase the said property and comply his own part in fulfilment of the agreement. It has also been said that on 10-1-71 the plaintiff- appellant had contacted the defendants and tendered the entire sale consideration to them. THE defendant No. 1 could not accept the request of the plaintiff since his brother was not present there. On the request, the plaintiff left the defendants' house and again on 8-2-71, the plaintiff contacted the defendants and asked them to execute the sale-deed. THE defendants declined to execute the sale-deed in favour of the plaintiff. The defendants contested the suit on the ground that on 12-1-69, the time for resale was extended by them on express-condition that after the expiry of the period of extension of two years, the agreement would go unenforceable and would be deemed as cancelled. It was pleaded that during this period, the plaintiff never showed his willingness to repurchase the property in question. It was also pleaded that after 12 months, the agreement was no longer enforceable. Thus, the suit was pleaded to be liable for dismissal. The learned Senior Counsel for the appellant Sri Guru Dayal Srivastava argued whether the time was essence of the contract. The period of contract to resale was to expire on 12-1-71, the fact that the agreements were executed between the parties was not disputed. It was submitted that the ridder by the minor are not bound by same. It was argued by Sri Srivastava that the time was not essence of contract and even though in the agreement, the period of two years was got mentioned, they did not necessarily mean that after expiry of the said period, the plaintiffs right to get the sale deed for the property had extinguished. In support of the argument, the learned counsel placed reliance on a decision 1972 ALJ 865 Diwan Man Mohan Lai v. L. Pyare Lai alias Budhsen and others. The learned counsel for the appellant submitted that the observations of the Division Bench in the said judgment it is true that ordinarily time may not be of the essence of the contract in agreement of sale of immovable property but there is no law which provides that in no case shall time be of the essence of the contract to sell immovable property even though in agreement itself a definite time is fixed. "
(3.) THE submission of the learned counsel for the appellant cannot be accepted as correct. THE decision of the Division Bench further observed that there is a fundamental difference between an agreement to sell and agreement to reconvey the property already sold. It is true that these are both agreements but it has been declared by the Supreme Corut in K. Simrathmull v. Manglinguachgauder, AIR 1963 SC 1182. It is the law that a contract to recovery is in reality a concession made by the vendee to the vendor and also in a nature of a privilege. THE lower appellate court also quoted a passage from 1972 ALJ 865 which also quotes passage from Halsbury's Laws of England as under: "where under a contract, conveyance or Will a beneficial right is to arise upon the performance by the beneficiary of some act, in a stated manner or at stated time, the act must be performed accordingly. . . . . . . . . . . . . . . . . . . . . . . " The learned counsel for the appellant could not assail the findings of facts recorded by the courts below and rightly had not placed the oral evidence for appreciation by this court. The findings of the court below that within the stipulated period, the plaintiff had failed to seek the enforcement of the agreement to contract is a finding of fact. The learned counsel have not raised any other argument except the arguments considered above. I am of the view, after perusal of the judgment and record of the case, that the judgments of the courts below are sound and legal and time was the essence of the contract, in view of the facts and circumstances of the case.;