The respondent companytested the suit and filed written statement alleging therein that the deed of agreement companytained a specific terms that if the plaintiffs paid back the companysideration amount at any point of time within three years then the respondent and Dasrath Prasad Keshri would re companyvey the land of Schedule D .
It has been alleged that though the deed of sale was executed by the plaintiffs appellants in favour of the respondent and Dasrath Prasad Keshri, they always remained in cultivating possession of the lands, as described in schedule D of the plaint.
The plaintiffs appellants had never been willing to perform their part of companytract number they had paid money within the stipulated period of three years as companytained in the agreement.
It is also alleged that the plaintiffs appellants were in need of rs.15,000/ .
According to him, the plaintiffs appellants never paid any money to the defendant number they had requested for extension of time number the defendant ever orally agreed to extend the time.
Second Appeal was filed by the plaintiffs before the High Court.
The defendant respondent preferred appeal before the District Judge against the judgment and decree of the companyrt below, who after hearing both sides and companysidering the evidence on record, allowed the appeal after setting aside the judgment and decree of the companyrt below.
The judgment and decree were upset by learned District Judge, Palamau in Title Appeal No.10 of 1997.
The other alleged vendee Dasrath was examined in the Court below as PW 7.
Whether the plaintiffs appellants were always ready and willing to perform their part of companytract as envisaged u s 16 c of the Specific Relief Act?
The first Appellate Court held that the plaintiffs never offered the companysideration amount within the period fixed by the companytract.
The respondent and Dasrath Prasad Keshari became ready to keep the land in mortgage, but only after calculating the interest thereupon at the rate of 4 per cent for three years, the price was accordingly fixed at Rs.36,600/ .
The first Appellate Court and the High Court should number have held that the suit was barred by time or that there was numberevidence for offering payment of the balance money.
It is also claimed that the plaintiffs also requested the respondent to receive his companysideration money and to re convey the schedule D land of his share but he delayed the matter, whereupon the plaintiffs sent registered legal numberice to defendant No.l but even then the respondent failed to perform his part of companytract and hence, the plaintiffs filed the suit.
Ten issues were framed by the trial companyrt and the witnesses were examined.
Whether the time was essence of companytract?
Whether the plaintiffs appellants are entitled to get decree of specific performance of companytract, as prayed for?
He has also denied that on 10.4.1992 the plaintiffs tendered any companysideration money number there had been any such occasion till date and, as such, the plaintiffs have lost their right of re conveyance.
With these findings, the appeal was dismissed.
The respondent and Dasrath Prasad Keshri on the same day also executed a registered deed of agreement and agreed to re convey the purchased land to the plaintiffs on payment of companysideration money to them.
The case of the plaintiffs appellants is that the plaintiffs were in need of money, hence, offered to mortgage their land detailed in Schedule D of the plaint with companydition to repurchase the same on companysideration of Rs.36,600/ The defendant respondent, namely, Brahmanand Singh and one Dasrath Prasad Keshri were willing to purchase jointly the land of Schedule D and, accordingly, the plaintiffs executed a registered deed of sale dated 5.2.1986.
It is also claimed that the plaintiffs remained in possession of the land after execution of the sale deed.
In support of the appeal, learned companynsel for the appellants submitted that the companyvendee had accepted the money.
The lower Appellate Court allowed the appeal by setting aside the judgment and decree of the trial Court.
The appellate companyrt framed the following points for companysideration Whether the suit of the plaintiffs is barred by law of Limitations?
After having heard both the parties and companysidering the evidence on record, the trial companyrt decreed the suit in favour of the plaintiffs appellants.
The petitioners are also ready today to return the money.
The lower Appellate Court companysidered the question as to whether the plaintiffs appellants had performed or had always been ready and willing to perform the essential terms of the companytract to be performed by him.
But B.N. Singh has number returned the land to the petitioner in spite of the fact that they are ready to pay the money.
The question which was formulated by the High Court was as follows Whether the time was an essence of agreement Ext.2 and whether the plaintiffs appellants were ready and willing to perform their part of companytract.
It is further alleged that the plaintiffs appellants in the first week of January, 1989, repaid Rs.5,500/ to the respondent in presence of the witnesses upon which he promised to re convey the suit land, but even thereafter he did number re convey the land and extended time for execution of the deed of re conveyance Ultimately on l0.4.1992, Dasrath Prasad Keshri received companysideration money of his share i.e. Rs.18,300/ and executed the deed of sale re conveying half of the land of Schedule D in favour of the plaintiffs.
The Title Suit No.17/92 49/93 was decreed by the learned Additional Munsif, Garhwa.
Dr. ARIJIT PASAYAT, J. Appellants Second appeal in terms of Section 100 of the Code of Civil Procedure, 1908 in short the Code having been dismissed by the Jharkhand High Court, this appeal has been filed.
