JUDGMENT S.N. Srivastava, J.
1. Present second appeal has its genesis in the judgment and decree dated 7.9.1983 passed by appellate court in Civil Appeal No. 49 of 1981, whereby the judgment and decree dated 25.4.1980 passed by the trial court in Original Suit No. 163 of 1973 was affirmed.
2. A brief resume of necessary facts is that the plaintiff, to begin with, instituted a suit for specific performance of contract on the premises that under the agreement defendant was called upon to execute sale deed within a span of five years on payment of sale consideration of Rs. 4,000/-. The plaintiff according to the facts on record, executed sale deed as against his 1/2 share of the property in question in favour of defendant No. 1 on 6.7.1968 for a consideration of Rs. 4,000/- subject to the stipulation as contained in the agreement that the defendant No. 1 would re-convey the property in favour of the plaintiff in case the amount of sale consideration was repaid to him within a period of five years. Subsequently, the defendant it would further appear from the record, prevaricated on re-conveyance of property despite willingness and readiness expressed by the plaintiff on various occasions and ultimately, repudiated the contention that any such agreement was effected between the parties and hence the suit was instituted for specific performance and also for cancellation of sale deed dated 24.5.1974 which was executed by the defendant No. 1 in favour of defendant No. 2. The suit instituted by the plaintiff culminated in judgment and decree in favour of the plaintiff and against the defendant mandating the defendant to execute sale deed within a month and also to hand over possession to the plaintiff and attended with further relief of rescinding the impugned sale deed executed by the defendant No. 1 in favour of defendant No. 2. In appeal, the judgment and decree received affirmance by means of judgment and decree dated 25.4.1980.
3. The defendant repudiated the plaint case and also denied execution of agreement to re-sale attended with further plea that suit was pre-mature the same having been instituted before expiry of the period of five years. However, the defendant admitted sale deed having been executed by him in favour of defendant No. 2.
4. While admitting the present second appeal, the Court framed the following issue.
"Because it has been proved from the evidence on record that the suit was clearly premature as filed on 28.5.1973."
5. I have heard Sri Pankaj Agrawal, learned counsel holding brief of Sri V. K. Gupta, learned counsel for appellant as well as Sri V. D. Ojha and Sri K. D. Tripathi, learned counsel for opposite parties. The main plank of argument was that the suit was premature as it was instituted within five years which was the limitation fixed under the agreement and by this reckoning, proceeds the submission, the decree passed by the Courts below is erroneous being vitiated in law.
6. The word 'agreement' as used in the Contract Act refers both to a promise and a set of promises forming the consideration for each other. In the instant case, it was agreed between the parties that in case plaintiff repays the amount of sale consideration within the span of five years, the defendant would re-convey the property in favour of the plaintiff and in case of failure on the part of the defendant, the plaintiff would be entitled to enforce his rights from a court of law. It was also specifically mentioned that plaintiff will lose his right of re-conveyance after five years. The relevant portion of the agreement may be excerpted below for ready reference.
^^;g fu'p; gq;h fd Hkwfe fuEu dk fcØh vkt dh frfFk ls 5 o"kZ ds Hkhrj Øsrk le; jftLVªh :i;k eq>dks [ksr [kkyh gksus ij oSlk[k ds eghus esa ns nsxk rks eSa Hkwfe fuEu dk foØh i= Øsrk ds izfr dj nwaxk vkSj vf/kiR; djk nwaxk vxj fcØh i= dh jftLVªh u d:a rks Øsrk dk vf/kdkj gksxk fd U;k;ky; }kjk rdehy fcØh i= dh djk ysos O;; U;k;ky;
esjs ftEes gksxk fe;kn ds i'pkr~ Øsrk dks foØh i= djkus dk vf/kdkj u gksxk A** Before dwelling on the enforceability of the agreement, it would be useful to notice that findings recorded by the trial court vis-a-vis the denial of any agreement prior to execution of sale deed. The trial court framed specific question as contained in question No. 2 with regard to agreement dated 6.7.1968. As many as three witnesses were examined including plaintiff himself. P.W. 2 Basdeo and P.W. 3 Ram Bharosey Lal were witness and scribe respectively of the sale deed as well. The trial court held the evidence of these witnesses reliable and in the ultimate analysis, found that the agreement was effected between the parties prior to the execution of the sale deed. The appellate court also held the self-same view and gave affirmance to the finding of the trial court. Now the question that surfaces for consideration is whether the institution of suit was premature or not. It is borne out from the record that agreement containing condition to re-convey the property within a span of five years was reduced to writing and such writing was signed by both the parties. It remains a fact that reconveyance of the property was accepted by the defendant subject to a condition expressly stated in the agreement and as such the condition was binding on the defendant. The condition as incorporated in the agreement between the parties which was arrived at before the execution of sale deed was executed and subject to which the property was conveyed to the defendant by the plaintiff and as such it does not lie in the mouth of the defendant to say that he was not bound by the condition requiring him to re-convey the property on payment of sale consideration at any time within five years of the sale.
7. In so far as the question whether the suit was premature or not, the relevant clause in the agreement may be noticed. It is explicitly stated in the agreement that the vendee would be bound to re-convey the land to the vendor at any time within five years on payment of the amount for which the property had been sold. It is noticeable from the finding recorded by the Courts below that from the date of execution of agreement between the parties, i.e., on 6.7.1968, the period of five years would be completing on 5.7.1973 while the suit itself was instituted on 28.5.1973. The notice was given by the plaintiff to the defendant on 2.5.1973 which it has been held was proved by papers i.e., registered receipt No. 36 Ka 1 Ex. 2 and 37 Ka 1 Ex 3. It was clearly stated in the notice that the defendant should re-convey the property on acceptance of sale consideration of Rs. 4,000. It would thus transpire that the suit was instituted before expiry of the period of five years. It is clearly stipulated in the agreement that if the transferee repays the sale consideration within five years, he (the defendant) would re-convey the property in favour of the plaintiff. The expression "within the period of five years", in my considered opinion, means within the period, which ends with the last day of limitation, prescribed in the agreement. The expression 'within five years' cannot be stretched to mean after the expiry of the period of five years but within the time before the last date of the period of expiry. As stated supra, the period of five years would be completing on 5.7.1973 and the suit having been instituted on 28.5.1973, cannot be said to be premature. In the circumstances, the suit having been filed before expiry of the period of five years was rightly within the stipulated period and the argument that the suit filed was premature cannot be held to be sustainable In law. The findings of the Courts below on this point does not suffer from any illegality or any infirmity. No substantial question of law arises in the case.
8. In the above conspectus, I am of view that the agreement containing stipulation of re-conveyance of property within five years was effected between the plaintiff and the defendant No. 1 and further that the suit was rightly instituted within the period of five years on account of failure on the part of the defendant No. 1 to perform his part of agreement. No other point was pressed before me.
9. As a result of forgoing discussion, the second appeal fails and is dismissed with costs quantified at Rs. 10,000/- apart from other expenses which may be found payable by the defendant appellant.