HARI NARAIN Vs. SHIV KUMAR

JUDGEMENT

(1.) THIS is a plaintiff's second appeal arising out of a suit filed by him for specific performance of the contract. The trial court has decreed the suit. On appeal the lower Appellate Court has allowed the appeal of the defendant and has dismissed the suit of the plaintiff The case of the plaintiff is that he is Bhumidhar of four plots, as described in the plaint situate in village Bhairampur Pargana Aurangabad Tahsil Misrikh district Sita- pur. In the year 1958 the plaintiff was in need of money He, therefore, secured a sum of Rs. one thousand by contacting the defendant- It was agreed between the two that the plaintiff should execute a simple mortgage with possession of the land in favour of the defendant in respect of the land. The plaintiff averred that he went to the Registration Office in connection with the said mortgage but the defendant got a sale-deed executed by him instead of the mortgage deed. Hence the defendant refused to sign the deed. Thereupon it was settled between the parties that the plaintiff shall be entitled for the retransfer of the land from the defendant within a period of 20 years on payment of lumpsum amount of Rs. one thousand to the defendant. In pursuance thereof besides the sale-deed executed on 3rd February, 1958, an agreement to sell was also executed on the same date, i.e. 3rd February, 1938. It may be mentioned that admittedly since the date of the execution of the sale deed in question the defendant had been using the land in dispute. However, it is alleged that later on the plaintiff visited the defendant several times with Rs. one thousand but the defendant did not respond to reconvey the said land Hence the suit for specific performance was filed by the plaintiff. In the present suit between the parties admittedly the plaintiff had always been ready and willing to pay the sum of Rs. one thousand and perform his part of the contract. In defence it was stated on behalf of the defendant that the plaintiff has executed the sale in his favour unconditionally and that since the defendant is an old man of 90 years he does not remember limitation to reconvey as given in the agreement.

(2.) I have heard Sri R. K. Sharma, learned counsel for the appellant and Sri Akhilesh Sahai, the learned counsel appearing for the respondent.

(3.) IN view of the above specific stipulation it is, therefore, clear that the amount of Rs. one thousand could have been tendered by the plaintiff up to 20 years. IN my opinion, the view taken by the Lower Appellate Court is manifestly erroneous on the face of the above specific stipulation of 20 years for payment by the plaintiff To my mind the amount could have been tendered by the plaintiff up to 20 years from 3rd February. 1958 and the mere fact that he tendered the amount within five years will not disentitle to him to claim the remedy. Hence the view taken by the Lower Appellate Court that the suit is barred by time is also erroneous in law.