HARI SHANKAR PRASAD, J. - (1.) THIS second appeal is directed against the judgment dated 27-7-1996 and decree dated 7-8-1996 passed in Title Appeal No. 15/92, whereby and whereunder the learned First Additional District Judge, Palamau at Daltonganj dismissed the appeal.
(2.) WHILE admitting this appeal, the following substantial question of law was formulated : "Whether the learned 1st appellate court and the learned trial court erred in law in not considering the non-mention of time limit in the agreement of reconveyance for the purpose of contract under the specific performance of contract which is a discrepancy one and that the decision arrived at by the learned 1st appellate court considering 11 years as the reasonable time limit can be illegally construed ?" The case of the plaintiff in brief is that the plaintiff-respondent and the defendant-appellant are the residents of same village and are neighbours and good relations always prevailed between them. The plaintiff and the defendant agreed to sell the land fully described in the schedule on consideration amount of Rs. 9,500 with right to the plaintiff over such sale to obtain reconveyance on the same consideration amount and as per agreement, the defendant-appellant paid Rs. 2000/- as advance money out of total amount of Rs. 9,500/- and promised to pay the balance consideration amount of Rs. 7,500/- at the time of execution of sale deed and defendant-appellant also agreed to execute an agreement in favour of the plaintiff allowing him right to obtain reconveyance of the suit land on the same consideration amount. Pursuant to the agreement the plaintiff-respondent executed a sale deed on 10-1-1979 transferring the suit land in favour of the defendant-appellant after receiving the balance consideration amount of Rs. 7,500/- and got the same registered under the Indian Registration Act. The plaintiff delivered the registration receipt to the defendant after endorsing and also delivered the possession of the suit land. After execution of the sale deed the defendant on the same day executed an agreement to reconvey the suit land on the same consideration amount of Rs. 9,500/- but it was also agreed between plaintiff and defendant that time will not be the essence of the contract. Hence, consequently no time was fixed in the agreement to obtain the reconveyance and as per terms of agreement plaintiff was at liberty to obtain the reconveyance on suit land as and when he becomes capable to pay the consideration amount of Rs. 9,500/- to obtain the sale deed in his favour with respect to the suit land as no time limit was fixed between the parties. The further case of the plaintiff is that the plaintiff within the knowledge of the defendant- appellant was always willing and representing to perform his part of contract and when as per terms of the agreement he was having Rs. 9,500/- in his hand, he informed the defendant-appellant for the same and requested him to execute and register the sale deed on several dates. The plaintiff on 31-3-1990 tendered Rs. 9,500/- to the defendant as consideration money for reconveyance of the suit land and requested him to execute and register the sale deed in his favour. The defendant-appellant did not accept the tender and directed the plaintiff to appear before him on 15-4-1990 when he will be able to fix a date for execution and registration of the deed. The plaintiff went to the defendant at his house on 15-4-1990 and tendered Rs. 9,500/- as consideration amount and requested him to receive consideration amount and to fix a date for execution and registration of the sale deed but again the defendant avoided to receive the consideration money and asked the plaintiff to again come on 1-5- 1990 with the money. Plaintiff again went to him on 1-5-1990 and tendered the amount and requested him to fix a date but the defendant verbally refused to receive the money and to register the sale deed and, therefore, being aggrieved by the conduct of the defendant-appellant the plaintiff deposited the consideration amount in the State Bank of India, Daltonganj in S.B. Account No. Agr. 5/241 and served a notice on the defendant under registered post with A/D through his lawyer Sri Sidheshwar Singh on 8-5-1990 requesting him to fix a date within a week of receipt of the notice on which the defendant proposes to execute and register the sale deed. The notice was served on the defendant on 10-5-1990 and he sent a reply on 14-5-1990 through his lawyer Sri Murlidhar Pandey under registered post with A/D and denied the execution of agreement to sell. The reply of notice contains only wrong facts and the defendant simply intended to evade the execution of sale deed in favour of the plaintiff on wrong statement of fact.
(3.) THE further case of the plaintiff is that he is always ready to pay the amount of Rs. 9,500/- as and when court directs him to pay the amount to the defendant and if defendant agrees to receive the same.;