KALU DALPAT PATIL Vs. NARAYAN DAGADU SUTAR

JUDGEMENT

(1.) This is an appeal from an order of remand by the lower appellate Court. Two points have been urged in support of the appeal. In the first place, it is contended that the lower appellate Court is not right in its view that time was not of the essence of the contract on the terms of the contract in question. It may be mentioned that the contract in question is dated April 11, 1917, under which the defendants agreed to sell, to the father of the present plaintiffs, certain lands referred to in the contract for Rs. 300. The payment was to be made after four years from the date of the agreement and Rs. 5 were paid as earnest-money. It appears that the land in question originally belonged to the plaintiffs father and was sold by him in 1904 to the defendants father. The plaintiffs obtained possession of the land in question as tenants of the defendants after this agreement and continued in possession for about four years, when they were dispossessed by a decree of the Mamlatdar which was obtained by the defendants against them.

(2.) Subsequently, a suit was filed in 1921 on the basis that the transaction of 1904 was really a mortgage. But that suit was dismissed and the present suit was filed by the plaintiffs for specific performance of the contract in question.

(3.) The trial Court decided that the time fixed under the contract was of the essence of the contract having regard to the ratio decidendi in Samarapuri Chettiar. V/s. Sudarsanachariar. (1919) I.L.R. 42 Mad. 802. The trial Court taking that view of the matter proceeded to deal with other issues, and decided the suit without recording any finding on issue No. 4, which related to the amount which the plaintiffs were to pay to the defendants in case they were held entitled to get the lands and the sale-deed. The plaintiffs suit was dismissed by the trial Court.