RAHAT JAN Vs. HAFIZ MOHAMMAD USMAN DECEASED

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree of the Addl. Civil Judge, Moradabad, dated 28- 11-1972, dismissing the plaintiffs suit for specific performance of an agreement dated 30-12-1970.

(2.) THE plaintiff appellant filed the suit on the allegations that the defendants are the owners of the Bhumidhari land specified at the foot of the plaint, situated in village Moore within the Municipal limits of Moradabad. On 30-12-1970 defendants executed an agreement under which they agreed to sell the land in dispute to the plaintiff for a consideration of Rs. 20,000/-, out of which the plaintiff had paid a sum of Rs. 2600/- on the date of the execution of the agreement. THE plaintiff asserted that under the terms of the agreement the defendants had agreed to put him into possession by getting the foundation laid within one month of the execution of the agreement and to execute sale-deed within one year after receiving the balance amount of consideration. It was obligatory for the defendants to put the plaintiff into possession within one month of the agreement and the plaintiff was ready to pay Rs. 3400/- according to the terms of the agreement but the defendants failed to perform their part of the contract as they did not put the plaintiff into possession and further in spite of a written notice they failed to accept the remaining amount of consideration or to execute the sale-deed. THE plaintiff, has all along been ready and willing to perform his part of the contract; but, the defendants have failed to perform their part of the contract. Hence, the suit.

(3.) LEARNED Counsel for the appellant assailed the findings of the trial Court and urged that since time was not the essence of the contract and as such even it the plaintiff had failed to pay Rs. 3400/within one month from the date of the agreement, the defendants could not avoid the agreement as the plaintiff had all along been ready and willing to perform his part of the contract and the finding of the Crial Court is erroneous and unsustainable on the evidence on record.