BEHARI LAL UPPAL Vs. SAWAN SINGH AND ANOTHER

JUDGEMENT

(1.) THE suit, which culminated in this appeal, was instituted by Sawan Singh (now Respondent 1) for specific performance of agreement to sell land, measuring 54 Bighas 14 Biswas, described in the heading of the plaint (hereinafter referred to as the land). Bihari Lal Uppal (now the appellant) was owner of the land and Sawan Singh had been in its possession, most probably as a tenant. N.K. Uppal is his (Bihari Lal Uppal's) son and Mukhtiar -i -Am and he had been acting and prosecuting the case on his behalf in the capacity of Mukhtiar -i -Am.

(2.) THE case of Sawan Singh was that on August 20. 1969, Bihari Lal, through N.K. Uppal, executed agreement to sell (hereinafter called the agreement) the and at the rate of Rs. 475/ - per Bigha to him (Sawan Singh) and received Rs. 500/ - by way of advance money from him. June 15, 1970 was fixed as the date for execution and registration of the sale -deed and the balance of the sale money was to be paid before the sub Registrar. Bihari Lal Uppal or N.K. Uppal did not turn up on the said date to execute the sale deed. Thereafter Bihari Lal Uppal and N.K. Uppal had been dilly -dallying and by the passage of time the price of land had increased, as a result of which Bihari Lal Uppal entered into another agreement to sell the land to Gurdial Singh (now Respondent 2) Therefore, he (Sawan Singh) sent a notice on April 16, 1971, by registered post to Bihari Lal Uppal to complete the sale within one month by executing and registering the necessary deed in his favour It did not bear any fruit. So Sawan Singh brought the suit, claiming decree for specific performance of the agreement with the allegations that he had always been ready and willing to perform his part of the contract and Bihari Lal Uppal had failed to perform his part of the contract. In the alternative, he claimed Rs. 25,982 50 by way of damages. Gurdial Singh was also impleaded as a defendant. He (Gurdial Singh) preferred to remain absent despite his service. So, he was proceeded against ex -pane. The suit, was contested by Bihari Lal Uppal He admitted the execution of the agreement and also the receipt of Rs. 500/ - from Sawan Singh, but pleaded, inter alia, that the said amount was received by him as earnest money, that time was of the essence of the contract and it was Sawan Singh who had committed breach of the agreement by not turning up on June 15, 1970 at Rajpura, where the sale -deed was to be executed and registered and he (Sawan Singh) was a poor man and had never possessed funds to pay the balance of the sale money and had always been delaying the execution and registration of the sale -deed. It was under these circumstances that he (Bihari Lal Uppal) agreed to sell land to Gurdial Singh. Hence, the suit was tired on the following issuer : - -

(3.) The proposition is now well settled that in a contract of sale of immovable property, time is not ordinarily of the essence of the contract unless the parties make it so by express agreement in the contract itself or it can be inferred from the nature of the property required to be sold; and it is supported by Amba Lal Umrao Singh Ji v. L. Harish Chander : A.I.R. 1955 P&H. 189 and Gomathinavagam Pillai v. Palaniswami Nadar : A.I.R. 1967 S.C. 868. Therefore, the ordinary presumption is that in the case of contract of sale of immovable property, time is not of the essence of the contract and it is for the party who alleges that it was so (i.e. that the time was of the essence of the contract) to displace the said presumption by the contents of the agreement the circumstances and facts of the particular case. This proposition was not, and could not be, disputed by the Learned Counsel for the appellant. He, however, argued that it was essential for Sawan Singh to call upon Bihari Lal Uppal to execute and register the sale deed in his favour on payment of the balance of the sale money within reasonable time, and added that since Sawan Singh did not take steps to secure the execution and registration of the sale deed within reasonable time, he had disentitled himself to the relief of specific performance the contract. I would agree with him that in a contract of sale of immovable property, it is expected of the parties to take steps to complete the sale by execution and registration of the deed within reasonable time, but I have been unable to agree with him that Sawan Singh did not act within reasonable time for securing the execution and registration of the deed from the appellant June 15, 1970 had been fixed as the date for execution and registration of the deed at Rajpura. It is an admitted fact that Sawan Singh had sent notice (Exhibit P 3) by registered post on April 16, 1971, i.e., about 10 months after the appointed date, for execution and registration of the deed to Bihari Lal Uppal, giving him one month to execute and register the sale deed. Bihari Lal Uppal gave reply (Exhibit P. 4) to the said notice on April 23, 1971 to Sawan Singh and the latter sent rejoinder (Exhibit P. 5) to Bihari Lal Uppal on April 30, 1971. The period of 10 months that elapsed from June 15, 1970, when Sawan Singh demanded Bihari Lal Uppal by registered notice (Exhibit P. 3) to execute and register the sale, deed, cannot, in the instant case, when Sawan Singh had been in possession of the land throughout, be said to be unreasonable. True, Ghanshamdas (D.W. 5) asserted that the grand daughter of Bihari Lal Uppal was to be married to his son on September 12, 1970 and the said marriage was actually performed on November 22, 1971. On the strength of his testimony, the Learned Counsel for the appellant contended, though faintly, that time was of the essence of the contract in the instant case, since Bihari Lal Uppal required money for the expenses of marriage of his granddaughter. This contention cannot be accepted. Admittedly, Ghanshamdas is a close relation of Bihari Lal Uppal and, as such, he would not hesitate to make statement favourable to him. N.K. Uppal, who appeared as D.W.4, did not state that the sale money was required for the expenses to be incurred on the marriage of his daughter or that her marriage could not be performed in the month of September, 1970, on account of non -availability of the sale money. It is not recited in the agreement that the sale money was required for the marriage of the granddaughter of Bihari Lal Uppal. No such plea had even been taken in the written statement. Neither the land nor any other property had been sold by Bihari Lal Uppal or N.K. Uppal in the month of September, October or November, 1971, which could indicate that Bihari Lal Uppal or N.K. Uppal had, in fact required any money for performing the marriage of the granddaughter of Bihari Lal Uppal. Thus there is no recital whatsoever in the agreement from which it can be inferred, even remotely, that the date June 15, 1970, fixed for the execution and registration of the deed was of the essence of the contract. The land is arable. As indicated above, it was in the possession of Sawan Singh. The conduct of the parties too does not warrant an inference that time was of the essence of the contract. Therefore, on the said state of affairs, I unhesitatingly find that the appellant has been unable to show that time was of the essence of the contract. Rather, the circumstances, indicated above, read consistent with the presumption, referred to above, and 1 find that the trial Court was right in holding that time was not of the essence of the contact. So its finding on issue No. 4 -A is affirmed.