LexGAURI SHANKAR PRASAD AND ORS versus BRAHMA NAND SINGH
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[2008] 10 S.C.R. 839 """ ~ GAURI SHANKAR PRASAD AND ORS. A II. BRAHMA NANO SINGH (Civil Appeal No. 1756 of 2002) JULY 11, 2008 B ' ..,, [DR. ARIJIT PASYAT AND P. SATHASIVAM, JJ] Specific Relief Act, 1963: s. 16(c) - Suit alleging non-performance of agreement to re-convey the purchased land - HELD: If sale and agree- c ment to repurchase are embodied in separate documents, it cannot be a case of mortgage and as regards re-conveyance time is always essence of contract - Plaintiffs had failed to perform their part within stipulated period - Mortgage. -~ The plaintiff-appellants filed a suit stating that they D were in need of Rs.15,000/- and, therefore, offered to mort- gage the suit land to the defendant-respondent and P.W.7 with a condition to repurchase the same; that two docu- ments were executed on 5.2.1986 - one a registered sale deed and another a registered deed of agreement to re- E convey the purchased land to the plaintiffs for a sum of Rs.36,000/-; that PW7 received the consideration money of his share, i.e. Rs. 18,300/- and executed the deed of sale re-conveying half of the suit land to them; that they .. -" paid some amount to the respondent who promised to F re-convey the suit land and extended the time for execut- ing the deed of re-conveyance, but when they requested him to receive the balance consideration and to re-con- vey the land of his share, he failed to perform his part of the contract. The respondent contested the suit contend- G ing that the agreement contained a limitation of three years - to pay back the amount and since the plaintiffs were nei- i!- ther willing to perform their part nor did they pay the money within the stipulated period, they lost their right of 839 H 840 SUPREME COURT REPORTS [2008] 10 S.C.R. A re~conveyance. The trial court decreed the suit. But the first appellate court set aside the decree. The plaintiffs having failed· in the second appeal, filed the instant ap- peal. B Dismissing the appeal, the Court HELD: 1. It is to be noted that the evidence of PW-7, the co-vendee, clearly shows that no payment was made in his presence. The High Court has rightly observed that the trial court has made a new case which was not the c case of the parties. [para 1 O and 12] [844-B & G] 2.1 This Court has in several cases held that if sale and agreement to repurchase are embodied in separate documents, it cannot be a case of mortgage and in such cases relating to re-conveyance, time is always the es- D sence of the contract. [para 13] [845-A & B] r Chunchun Jha v. Ebadat Ali AIR 1954 SC 345; Bismil/ah ~ Begum (Smt.) v. Rahmatullah Khan (dead) by Lrs. AIR 1998 SC 970 - relied on. E 2.2 The High Court also noticed that the claim of the appellants that they paid the consideration amount on 10.4.1992 is also of no assistance because the period of limitation expired on 5.2.1992 and the suit was filed on 23.5.1992. As rightly noted by the High Court, there was F an agreement for re-conveyance and there was specific ~ ......- stipulation for re-conveyance of the land within a period of ·3 years which was admittedly not complied by the plain- tiffs-appellants. [para 15] [846-B & C] CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1756 G of 2002 From the Judgment and final Order dated 22/6/2001 of the High Court of Jharkhand at Ranchi in Second Appeal No. 80 of 2000 (R) H Ajay Veer Singh Jain and Goodwill lndeevar for the Appellants. GAURI SHANKAR PRASAD & ORS. v. BRAHMA 841 ~ NANO SINGH [DR ARIJIT PASAYAT, J.] .... Himanshu Munshi for the Respondents. A The Judgment of the Coutt was delivered by Dr. ARIJIT PASAYAT, J. 1. 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 B Court, this appeal has been filed. The Title Suit No.17/92-49/93 was decreed by the learned Additional Munsif, Garhwa. The judgment and decree were upset by learned District Judge, Palamau in Title Appeal No.10 of 1997. Second Appeal was filed by the plaintiffs before the High Court. ·C 2. 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 condition to repurchase the same on consideration of Rs.36,600/- The defendant-re- ~--i spondent, namely, Brahmanand Singh and one Dasrath Prasad D Keshri were willing to p
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