JUDGMENT

VENKATACHALIAH, J.:- Special leave is granted and the appeal taken up for final hearing and disposed of by this judgment. We have heard Shri Manoj Swarup, learned counsel for the appellant and Shri Goodwill Indeevar for the respondent.

2. Appellant was defendant in a suit for specific performance. He seeks special leave to appeal to this Court from the judgment and order dated 5-4-1991 of the High Court of Allahabad in Second Appeal No. 3395 of 1978 decreeing, in reversal of the decrees of dismissal entered by the two Courts below, specific performance of an agreement for sale of land.

3. On 3-7-1973 respondent-Natthu Singh sold Plot No. 195 measuring 5 bighas and 18 biswas and Plot No. 196 measuring 9 bighas and 8 biswas of Gulistapur Village, Pargana Dadri to the appellant for a consideration of Rs. 15,000/-. On the very day, i.e., 3-7-1973, another agreement was entered into between the parties whereunder appellant agreed to reconvey the said properties to the respondent against payment of Rs. 15,000/- within two years.

On 2-6-1975, well within the period of two years stipulated for the performance of the agreement to re-sell, respondent instituted the suit for specific performance alleging that despite offer of performance and tender the price, appellant, with the dishonest intention of appropriating the properties to himself refused reconveyance. The appellant contested the suit principally on the ground that respondent was never ready and willing to perform the contract and that respondent himself was in breach.

4. The trial Court framed the necessary and relevant issues stemming from the pleadings and on its own appreciation of the evidence on record came to find against the respondent that he was ready and willing to perform the contract; and that the agreement, being one of reconveyance, time was of its essence. The suit was accordingly dismissed. Respondents first appeal before the learned IInd additional District Judge, Bulandshahar was also unsuccessful.

5. However, in respondents second appeal, the High Court reversed the findings of the two Courts below and allowing the appeal held that respondent-plaintiff was ready and willing to perform the contract; that the appellant was the party in breach; and that, therefore, respondent was entitled to a decree. This decree is assailed in this appeal.

6. Sri Manoj Swarup appearing in support of the appeal urged two contentions: The first is that the High Court was in error in embarking upon a reappraisal of the evidence in a second appeal to disturb concurrent findings of fact that respondent was not willing and ready to perform the contract. The second contention is that contract itself became incapable of specific performance in view of the fact that during the pendency of second appeal the State had initiated proceedings for compulsory acquisition of the suit properties and the subject-matter of the suit itself ceased to be available. Counsel says the power to give compensation as an alternative to specific performance did not extend to a case in which the relief of specific performance had itself become impossible.

7. On the first question, as to the readiness of the respondent to perform his obligations, the High Court noticed that on 30th January, 1974 even before institution of the suit respondent and his brother had sold another property belonging to them for a price of Rs. 30,000/ - and that respondent had the necessary wherewithal to perform his part of the bargain. The High Court held:

"..... Thus, the plaintiff admittedly had received Rs. 15,000/- on 30-1-1974 and soon thereafter the first notice was issued to the defendant asking him to indicate a date for executing the sale deed and also expressing his readiness and willingness. There is no evidence on the record that between 30-1-1974 and the date of suit or thereafter the plaintiff had parted with this money."

The High Court also noticed that the two notices dated 23-3-1974 and 6-5-1975 respectively issued