A.K. Sinha, J.
1. These two appeals arise cm! of a common judgment and decree of the trial Court passed in two suits namely T. S. 44 of 1960 re-numbered as T. S. 21 of 1963 in the additional Court of Subordinate Judge, Contai 'instituted by respondent Nos. 1 and 2 as plaintiffs and another suit being T. S. 48 of 1962 in the same Court instituted by the present appellants (hereinafter referred to as the first suit and second suit), briefly, in the following circumstances.
In the first suit the plaintiff-respondents prayed for declaration of their title and recovery of possession on subsequent amendment of the plaint and for injunction and other necessary reliefs regarding certain lands which they purchased from one Abinash Chandra Maity respondent No. 3 in the present appeal. Their case, briefly, was that respondent No. 3 entered into an agreement for sale of certain immovable properties with appellant No. 2 on receiving a sum of Rs. 400/- by way of earnest money and putting him into possession. But as he failed to pay the balance of consideration money within 15th Magh 1366 B. S. the agreement for sale stood cancelled. The respondent No. 3 thereafter took possession of the property and sold some of the properties described in Ka schedule of the plaint to respondent No. 1, Provabati, by a registered conveyance dated May 30, 1960 and Kha schedule property by another registered deed of conveyance dated June 4, 1960 to Tamini respondent No. 2, her daughter, and put them in possession of another property. The present appellants in collusion with each other thereafter subsequently forcibly dispossessed them.
2. This suit was contested jointly by the present appellants and in their written statement apart from the general denial of material allegations the specific case that was set up in substance was that the agreement for sale dated 27th May, 1959 was still then subsisting and valid and in spite of their being ready and willing to perform their part of the contract at all material times Abinash wrongfully refused to execute and register a conveyance on accepting the balance of the consideration money. In the circumstances, they were entitled to specifically enforce the agreement and the plaintiffs could not have acquired any title or possession of the suit property. Their further case was that Trailakyanath appellant No. 1 obtained the above agreement for sale in the 'benami' of Jogesh and he had been all along and was still then in possession of the disputed property.
3. The present appellant filed second suit on 9th July, 1962, praying for specific performance of the above agreement for sale on repetition practically of the pleadings set up as defence in the first suit. This suit was contested by both the respondents Nos. 1 and 2 and their defence was virtually the representation of their case made in the plaint of the first suit.
4. The trial Court, it appears, after framing a number of issues on the evidence adduced, both oral and documentary, by the parties found that a registered 'Nadabi' document dated June 20, 1960 was not valid and effective document and Trailakya, the appellant No, 1, was not the benamdar of logesh. On the question of the validity of the agreement for sale the learned trial Court on a consideration of evidence and other relevant materials on record took the view that time was the essence of the contract and the appellants not having performed their part of the contract by tendering the balance of consideration within the time stipulated, they lost their right to enforce the agreement for sale. The trial Court also held with a further finding that the respondent No. 3 cancelled the agreement because of such non-performance of their part of the contract by the present appellants and took possession of the property.
5. As regards the possession of the properties the learned trial Court found that the appellant No. 1 was never put in possession and although the appellant No. 2 was put in possession by virtue of the agreement for sale such possession was taken back by respondent No. 3 and then after purchase of the properties by the respondent Nos. 1 and 2 put them in possession. But sometime in 1960 they were forcibly dispossessed by the appellants. Although such was the finding of the trial Court on the question of mis-joinder and non-joinder of parties the trial Court held that the respondent No. 2 could not have jointly filed the suit and accordingly on amendment of the plaint Jamini was expunged from the category of the plaintiff in the first suit. In the result the learned trial Court decreed the first suit in favour of respondent No. 1, Provabati, and passed a decree declaring her title and right to recover possession of the disputed property and dismissed the suit of the present appellants for specific performance. That is how in short, the present appellants felt aggrieved and preferred the present appeal.
6. Now, in this case the admitted facts are that there was an agreement for sale executed by respondent No. 3 on 27th May, 1960 in favour of the appellant No. 2 for sale of the property at a total price of Rs. 12,714/- and on receipt of Rs. 400/- as earnest money from Jogesh Abinash put him into possession of the property. The respondent Nos. 1 and 2. it is also admitted, obtained registered conveyance from respondent No. 3 on different dates as noticed above in respect of the same properties as described in Ka and Kha schedules of the plaint in the first suit with knowledge of agreement for sale. The main question, therefore, on ad-milted facts of this case is whether the appellants are entitled to get a decree for specific performance of the agreement for sale, for if they are not, an found by the trial Court, then, clearly, they cannot have any right or status to challenge the title and possession of the respondent No. 1 or 2. Now, this question has to be considered on the facts of this case in three parts. Firstly, whether the appellant No. 2 is the benamdar of appellant No. 1. Secondly, if appellant No. 1 Trailakya was the holder of the agreement as real owner thereof then, whether the time was the essence of the contract and if so whether the appellants were ready and willing to perform their part of the contract within the time stipulated. Thirdly, in the alternative, whether the appellants were ready and willing to perform their part of the contract within a reasonable time even if the time was not the essence of the contract.
7. We think the first and the second part of the main question are really interlinked for if Jogesh is found not to be a benamdar of appellant No. 1, Trailakya, or in other words, if Trailakya did not obtain the agreement for sale from Abinash in the benami of Jogesh then, clearly, the suit for specifio performance must at once fail because it is admitted by Jogesh in his evidence that he has not tendered any money either earnest or the balance of consideration for obtaining the conveyance from Abinash within the stipulated time or at any time. It is, therefore, to be seen whether the story of benami as set up by the appellant is substantiated by the evidence in this case. The learned trial Court after considering this question from three aspects namely, fiduciary relationship, the possession and the motive found that such a case of benami was not established. In our view the learned trial Court was right, for, apart from the question of fiduciary relationship between Jogesh and Trailakya we find that wholly an inconsistent case had been made out by the appellants at the trial. For it appears that in the written statement as found by the trial Court, the ground for taking the agreement for sale in the benami was that some of the agnates of Trailakya was competitive purchaser and therefore he wanted to suppress his own name and took the agreement for sale in the benami of Jogesh. But at the trial, from the documentary evidence, namely, 'Nadabi' adduced on behalf of the appellants, it appears that the ground for taking the agreement in the bonami of Jogesh is otherwise. It is stated that Trailakya had enmity with Abinash and therefore, on suppression of his name he used the name of Jogesh lest Abinash should refuse to execute a conveyance if he directly took the agreement for sale in his own name. This apart there is no evidence in this case showing that Trailakya did anything to exert his right as the real holder for the agreement of sale to the knowledge of Abinash except on two alleged dates to which we shall come later, for tendering the balance of consideration money for obtaining the conveyance from him. On the question of possession, we entirely agree with the finding of the trial Court as it has very carefully considered the evidence on the point and came to the conclusion that Trailakya at the material time was neither put nor came into possession of the disputed property. On the facts of this case and on consideration of materials and evidence on record we are fully satisfied that this deed of 'Nadabi' was merely created by Trailakya as an afterthought to put pressure upon the respondents to part with their property out of grudge and ill-will against Lalmohan Guria who was the husband of respondent No. 2, Jamini. From the correspondence series between Trailakya and Tal-mohan it appears that Trailakya was in the habit of asking for loan often from Guria. It is quite possible that Trailakya, who was a man of doubtful integrity and a speculator in land purchases, as appears from his own evidence, was out to create mischief by creating such a document just because Guria would not satisfy his demands for advancing loan from time to time. Then again, no explanation is forthcoming why after lapse of more than a year there was necessity for taking such a registered 'Nadabi' from Jogesh particularly when according to the terms of the agreement time for completion of conveyance by tendering balance of consideration money long expired. It is the specific case of the appellants that respondent No. 3 had full knowledge that Trailakya took the agree-ment for sale in the benam of Jogesh and Trailakya along with Jogesh went to tender the balance of consideration money to Abinash within the stipulated time. Tf that be so, there cannot be any point in taking such a document from Jogesh. It would, therefore, be only reasonable to hold that this was purely an afterthought of Trailakya who created this document in collusion with the appellant No. 2 to defeat the claims of plaintiff's respondents Nos. 1 and 2. We are satisfied on the facts of this case after consideration of materials and evidence on records that the appellants have failed to establish the case of benami.
8. In view of the above finding it is not necessary for us to go into the two otherparts of the same question for, as already noticed by us, if Trailakya is not the benam-dar, then, clearly on the admission of Jogesh he has failed to perform his part of the contract and their suit, on this ground alone, must fail. Even so, we will proceed to examine the other two parts of the question as the learned trial Court has, after elaborate considerations of all the evidence and materials on record decided the issue. Now, whether or not the time is the essence of the contract must depend on the facts and circumstances of each case having regard to the provisions of Section 25 of the Indian contract Act. It is well-established that indention of the parties together with the surrounding circumstances has got to be looked into to ascertain whether the parties intended that in the agreement for sale in question in a given case the time would be essence of the contract. We think, the learned trial Court correctly followed the principle relying on several decisions noticed by it in the judgment and on consideration of entire evidence and relevant materials on record came to the conclusion, we think rightly, that time in the impugned agreement for sale was the essence of the contract and the appellants having failed to perform their part of the contract by tendering the balance of consideration money within the stipulated date lost their right to enforce that agreement. On reassessment and review of the evidence, we are unable to take a view different from that of the trial Court. It is the appellant's own case, apart from other evidence in this case that they knew that the time would expire within 13th Magh. 1366 B. S. and on that basis their story is that they went to the respondent No. 3 on two occasions with some outsiders and actually wanted to tender the money but respondent No. 3 on some pretext or other refused to accept the consideration money and execute the conveyance in their favour. It is, however, contended by Mr. Mitter, learned Advocate for the appellant, that time was not the essence of the contract, firstly, because the only stipulation that was made in case of failure to tender the balance of consideration money within the date specified in the agreement for sale was forfeiture of earnest money. There was no mention of cancellation of the contract in the agreement for sale. We, however, think that even though the cancellation of the contract is not embodied in the document in so many words, by the terms provided therein for forfeiture of the earnest money, the agreement for sale in case of such failure would automatically lapse by necessary implications. The other factors which would be relevant as noticed by the trial Court is that only by payment of Rs. 400/- Jogesh was put into possession of the entire property and a fixed date was marked out in the agreement for payment of the balance of the consideration money. It is rightly pointed out by the trial Court that by taking possession only by pay-ment of a paltry sum of Rs. 400/-, practically, the entire consideration money remaining unpaid, the respondent No. 3 could not have intended to allow the agreement to hang on for an indefinite period. Further, there is not an iota of evidence to show that any attempt was made either to contradict or vary the terms of the sale or to have extension of time so that a reasonable view might have been taken that the intention of the party was to complete the agreement for sale within a reasonable time. Mr. Mitter, however, relying on a Supreme Court decision in Goma-thinayagam Pillai v. Palaniswami Nadar, : 1SCR227 has sought to argue that normal rule is that time would not be regarded as the essence of the contract. While the proposition laid down in the above decision cannot be disputed, we have already said, that each case has to be decided on its own facts. Intention of the parties has to be looked into together with all the surrounding circumstances to determine whether in a given case time was or was not the essence of the contract. On a fair reading of the agreement for sale and on consideration of evidence adduced by the parties together with surrounding circumstances it must be held that the time was the essence of the contract in the instant case.
9. The next question is whether the appellants were ready and willing to perform their part of the contract as stipulated in the agreement for sale. We are considering this question only on the supposition, although we have already held that Trailakya was not the real holder of the agreement for sale and Jogesh was not his benamdar, that Tralaikya is the real contracting party. The appellants attempted to prove by adducing oral evidence of some outsiders and also by their own evidence that on two occasions in the month of Magh 1366 B. S. they went to the place of Abinash and Trailakya tendered the balance of consideration money but Abinash refused to accept such consideration and execute and register a conveyance in respect of the disputed property in favour of Trailakya. The learned trial Court has considered the evidence on this point of either side and for the reasons given disbelieved the evidence adduced by the appellants and we do not find any reason to differ from the view taken by the trial Court. Mr. Mitter has, however, contended that the testimony of these persons as also of the appellants must be accepted as there was no counter evidence of denial given by Abinash himself. It is said that although he was a party in both the suits he did not contest either of the suits nor he has given any evidence denying, at least, that such balance of consideration money was not tendered by Trailakya or that he did not refuse to execute and register a conveyance on receiving such money from Trailakya. We do not think, there is much of substance in this argument. It is true that Abinash was the competent person to say whether or not the facts tried to be established by the appellants by their evidence adduced were true. But this is not a case where non-examination of Abinash would automatically lead to establish the truth of the statement made by the appellants in their evidence or by their other Witnesses. We cannot hold also that because of absence of any evidence given by Abinash, any adverse inference ought to be made against the respondent in this case. For it appears that after the expiry of the terms stipulated in the agreement for sale for execution of the conveyance on payment of balance of consideration money Abinash wrote two registered letters exhibits 4 and 4A to Jogesh but they came back with the endorsement 'refused'. These letters were however, admitted in evidence and marked exhibits without objection. So the effect of such letters being admitted in evidence without objection is that the contents of the said letters are also admitted (See P. C. Purushothama v. S. Pcrumal, : 2SCR646 ). It is therefore admitted that the balance of consideration was not paid within the stipulated period. That being so the story of tender of balance of consideration sought to be supported by some oral evidence must be rejected as denied by Abinash in his letters. Much argument has of course been made about the receipt of these letters by Jogcsh. It is said that these letters were never tendered to Jogesh nor he refused to accept the letters. Mere endorsement of refusal in the circumstances, it is submitted, could not be accepted as a valid service upon him. We however, in agreement with the learned trial Court hold that the tender in this case, of these letters has been sufficiently proved and the refusal as endorsed by the serving postal peon on these letters must be treated as valid service upon Jogesh. In our opinion, therefore, non-examination of Abinash as a witness in this case has not affected the merits of the case and no adverse inference can be drawn on this account against the respondents. We however, find from the records in passing that the respondents cited Abinash as a witness but for the reasons known to him, in spite of service of summons, he did not come to the witness box. Be that as it may on consideration of the evidence and materials on record, it seems quite clear that the appellants failed to substantiate their story of tendering the balance of consideration money within the stipulated period and to get a conveyance executed and registered by Abinash.
10. In the above view of the matter if is not necessary to go into the other alternative part of the same question as indicated earlier but even if we do so, granting that time was not the essence of the contract, we are unable to hold that the appellants are entitled to get any relief by wav of specific performance. It is fairly established that he who seeks such an countable remedy must have to establish by cogent and clear evidenceamongst other things that he has been always ready and willing to perform his part of the contract within a reasonable time. In this case, it may be that respondent Nos. 1 and 2 have purchased the property with the knowledge of such prior agreement for sale but that fact by itself without more cannot shift the burden of proof upon them. It still remains on the appellants and not on the respondents to discharge that burden but the appellants have utterly failed to do so. For excepting vague and uncorroborated oral testimony of the appellants there is no independent evidence either oral or documentary adduced by them in proof of their assertion that they were ready and willing to perform their part of the contract within a reasonable time. On the contrary, conduct of the appellants reveals that they did not tender the balance of consideration money and take other suitable steps for obtaining execution of the conveyance within a reasonable time even after the expiry of the simulated date. It cannot be disputed that the appellants had the knowledge of the sale of the disputed property to the respondents Nos. I and 2 by respondent No. 3 at the latter part of 1960 but even then they did not do anything for protection of their right under the impugned agreement for sale except filing a written statement with a mere assertion that they were always ready and willing to perform their part of the contract. It is only after the lapse of two years, thereafter, they filed a suit claiming specific performance of the contract and that too without depositing the balance of consideration money in Court in accordance with the terms of the agreement for sale. Such being the conduct of the appellants it leaves us in little doubt that they were not ready and willing to perform their part of the contract within a reasonable time even after the expiry of the stipulated dale. So, in either view of the matter it is clear that the appellants have forfeited their right to enforce the agreement for sale against the respondents
11. It remains to be seen whether, although not equally necessary in this case, Trailakya was at all in possession of the dis-puted property at any time. On this question the trial Court has succinctly analysed the evidence of both parties and found that the evidence adduced on behalf of the annellanls of several witnesses were not at all dependable. They were more or less interested witnesses and the story of construction of a hut by Traihkya, we think, in the land, was rightly disbelieved by the Court. It is unnecessary over again to assign our reasons for not reiving upon the evidence of these witnesses for it is well established that the First Appellate Court, though a final Court of facts will not normally set aside the finding of facts made by the trial Court on consideration of evidence unless there are compelling circumstances to do so. We do not find any such circumstances in this case which compel us to take a different view of the evidenceadduced by the parties in this case on this aspect of the matter. We, therefore agree with the finding that Trailakya had no possession. Jogesh was put into possession and after the expiry of the stipulated period in the agreement for sale possession was taken by Abinash. Thereafter, with the execution of the conveyance in favour of the appellants they were put into possession but subsequently dispossessed some time in November, 1960. The decision of the trial Court on question of misjoinder of parties has not been disputed before us by any of the parties. We, therefore, come to the same conclusion as reached by the learned trial Court though on additional reasons.
12. In the result both the appeals are dismissed with one set of costs. Hearing fee assessed at Ten Gold Mohurs.
Sen Gupta, J.
13. I agree.