( 1. ) THIS is an appeal by some of the defendants against the decree, dated 6-5-1967, passed by the Additional District Judge, East Nimar, khandwa, in Civil Appeal No. 24-A of 1966, reversing the decree, dated 19-1 1966, passed by the Civil Judge, Class I, Burhanpur, in Civil Suit No. 3-A of 1965.

( 2. ) THE respondents 1 and 2 filed a suit for specific performance of an agreement of conveyance of property, dated 17-6-1964 (Ex. P/l ). There were earlier transactions between the parties in respect of which there were documents, but which were not filed for one reason or the other. It was alleged by respondents 1 and 2 in their plaint that they had agreed to sell their bungalow with an open field attached to it to Jwalaprasad, the predecessor of the appellants, for a consideration of Rs. 14,000 by an agreement, dated 25-2-1955. Simultaneously on that very day, there was an agreement of re-sale and the condition was that if the plaintiffs re-paid an amount of Rs. 14000 within any time upto 10 years, they would be entitled to a re-conveyance of the property. It appears that the plaintiffs depended on their sons and daughter for supply of the necessary funds. But the funds could partly be available and, therefore, the plaintiffs on 17-6-1964 re-purchased the bungalow only with a small compound for a consideration of Rs. 6,000 On th it very day there was an agreement (Ex. P/l) providing that the plaintiffs could repurchase the attached field for rs. 8,000 till the expiry of the period fixed by the original agreement, namely, till 25-2-1965.

( 3. ) THE plaintiffs in their plaint further alleged that as they did not see any prospects of funds being made available to them by their children, they decided to raise the amount by taking a loan from one, Shrikishandas (P. W. 2 ). Having secured the necessary loan, the plaintiffs contacted Jwalaprasad on 23-2-65 and told him that they were ready with the money and that they wanted a re-conveyance of the field for a consideration of Rs. 8 000. Thereupon jwalaprasad showing sympathy for the plaintiffs expressed that it was not necessary to take a loan on such a high rate of interest as 25%. He stated that he would give up his right about time limit and that the plaintiffs might secure funds from their children and he would be willing to execute a deed of reconveyance even if the amount was tendered within two months of the expiry of 25-2-1965. On that assurance, the plaintiffs claimed that they did not incur loan from Shrikishandas and they got the necessary funds from their children in the first week of April, 1965. Bat when they demanded re-conveyance of the field, Jwalaprasad flatly denied to abide by that assurance. Hence on 16-7-1965 the present suit was filed.

( 4. ) THE defence was that time was of the essence of the contract and the stipulation of re-conveyance being a concession could not be enforced after the expiry of the period stipulated by the contract. It was contended on behalf of the defendants that section 92 of the Evidence Act was a bar to the proof of any oral agreement varying or modifying the terms of the contract.

( 5. ) THE trial Judge dismissed the suit holding that section 92 of the Evidence act was a bar to the proof of any oral agreement so as to vary the terms of a written contract. On the other hand, the learned appellate Judge reversed that decree expressing the view that time was not of the essence of the contract and that the proviso 4 to section 92 of the Evidence Act permitted the proof of a subsequent oral agreement amounting to waiver on the part of the defendant so as to create an estoppel against him. In that view of the matter, the plaintiffs suit was decreed.

( 6. ) IN the present appeal, I propose to take the finding of fact arrived at by the learned appellate Judge as concluded, which calls for no interference in the absence of an illegality or a misapprehension. The finding of the learned appellate Judge is that on 23-2-1965 the plaintiffs had