The plaintiff must perform his part of the contract within a reasonable time, and the time is not the essence of the contract.

HEMANT GUPTA, J. - The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit for specific performance of the agreement dated 23.4.1991, was decreed.

2. The plaintiff entered into an agreement of sale dated 23.4.1991 with the appellant for a total sale consideration of Rs.21,000/-. A sum of Rs.7000/-was paid as earnest money and the balance was to be paid at the time of execution of the sale deed which was contemplated on or before 10.6.1991. It is the case of the plaintiff that on 10.6.1991, she remained present in the office of Sub Registrar, Nawanshahr with the balance sale consideration and other expenses, but the defendant did not reach the office of Sub Registrar, to perform his part of the contract. The present suit for specific performance was filed on 26.5.1992. Such suit was resisted by the defendant, on the ground that he is not the exclusive owner of the property in dispute and also he is not in possession of the same. However, it was admitted that he was one of the co-owners to the extent of 7/45th share in the property in dispute. However, the execution of the agreement with the plaintiff was admitted. It was pointed out that the agreement was with the clear understanding that the defendant would prevail over the other co-owners of the property in dispute to sell the shop in question.

3. The learned trial Court found that the defendant has not produced his brothers or sisters as alleged by him to be the co-owners, as witnesses. Therefore, the plea that he is one of the co-sharers is not proved. It was held that even if the defendant is co-owner of the property in dispute, even then the plaintiff will step into the shoes of the defendant as co-sharer on the basis of purchase. In view of the said fact, the decree for specific performance was granted. Before the learned first Appellate Court, the argument raised was to the effect that unless and until the other co-owners of the property also agree to execute the sale deed of their share in favour of the plaintiff, the valid title cannot pass in favour of the plaintiff. Therefore, the decree for specific performance could not be passed by the learned trial Court and at the most a decree for refund of the earnest money could have been granted. The learned first Appellate Court, found that none of the brothers and sisters of the appellant have appeared in the witness box to depose that the said shop was earlier owned by Dr. Asa Nand, father of the appellant and after his death, the same was inherited by all the Class-I heirs of Dr. Asa Nand and, thus, dismissed the appeal.

4. Learned counsel for the appellant has raised two arguments in the present second appeal. Firstly, that the appellant is not the exclusive owner and, therefore, the decree for specific performance could not have been granted against the appellant in respect of the property in dispute. However, a perusal of the agreement dated 23.4.1991, does not show any recital to the effect that the property was owned by anybody else other than the defendant-appellant or that it was even earlier owned by father of the appellant. Therefore, the argument that Dr. Asa Nand was earlier the owner and after his death, property is inherited by all his legal heirs, is not tenable. It is admitted by the learned counsel for the appellant that Asa Nand, father of the appellant, died on 1.1.1978. The agreement of sale of the shop was entered into 13 years later on 23.4.1991. Till today, none of the legal heirs of Dr. Asa Nand has lodged any claim in respect of shop in dispute. Since the appellant has represented in the agreement to be the sole owner of the shop, therefore, the appellant cannot be permitted to dispute the representation made by him. The agreement is binding on the appellant, which is in respect of sale of a shop and, therefore, the decree for specific performance, cannot be permitted to be avoided by the appellant, for the reason that he is