JUDGMENT The suit No.43 of 1952 which has given rise to this second appeal was brought by Ningombam Mani Singh plaintiff in the Court of the Munsiff, Imphal for getting the sale deed dated 4-1-1952 regarding the northern half of the land under patta No.42/7 Khabam-panna in favour of defendant 3 (appellant 2) cancelled and the plaintiff prayed that he be allowed to re-purchase this land at Rs.500/- on the allegation that the plaintiff had sold this land to respondent 2 (defendant 1) on 2-9-1946 for Rs.500/- and there was an agreement to re-purchase at any time when plaintiff respondent 1s financial condition would improve. Respondent 2 (defendant 1) sold this property to appellant 2 (defendant 3) who is a minor, by means of the sale deed in question dated 4-1-1952 and this sale deed was obtained by the father of the minor who is now appellant 1 (former defendant 2). The plaintiff brought Suit No.43 of 1952 in order to re-purchase this property at Rs.500/-in accordance with the contract mentioned above. 2. Defendant 1 (respondent 2) contended that defendant 2 (appellant 1) had given the disputed land to him and so this defendant 1 should be declared to be the owner of this land in question. 3. Defendant 2 contended that defendnat 1 was allowed by him to remain in possession for maintenance and the suit was barred by waiver, and it was under valued and it was bad for multifariousness. It was further contended that there was no condition of re-sale to the vendor and so the plaintiff was not entitled to any relief. The learned Munsiff dismissed the suit on 11-3-1954, but the learned District Judge in Civil Appeal No.49 of 1954 set aside the decree passed by the learned Munsiff and plaintiff-respondent 1 was allowed to re-purchase or pre-empt the Ingkhol in question by paying Rs.600/- the sale price of the sale deed dated 4-1-1952 to appellant 2. Defendants 2 and 3 have now come in second appeal to this Court. 4. It has been contended by the learned counsel for the appellant that the learned District Judge was not justified in holding that there was a oral contract between Nigombam Mani Singh and Yumnam Dharama Singh regarding re-purchase of the property in question whenever the vendors financial condition improved on the basis of S.29, Indian Contract Act. 4. It has been contended by the learned counsel for the appellant that the learned District Judge was not justified in holding that there was a oral contract between Nigombam Mani Singh and Yumnam Dharama Singh regarding re-purchase of the property in question whenever the vendors financial condition improved on the basis of S.29, Indian Contract Act. It has been contended that the alleged contract is very vague as respondent 1 would according to this contract be entitled to repurchase this property even after 100 years. Such an unlimited period of limitation cannot possibly be allowed to any party in any suit. And then such a contract relating to immoveable property must be written and registered, but in this case it was alleged to be oral. In order to appreciate this argument it is necessary to examine the condition of the sale deed dated 2-9-1946 in order to find out whether there was any contract of repurchase at all between Nigombam Mani Singh and Yumnam Dharama Singh. The aforesaid sale deed is in the following terms: "Let it be known that I, Ningombam Mani Singh son of late Ibungohal Singh of Naharap Basti, have sold the northern half of the Ingkhol covered by patta No.42/7 Khabam Pana standing in the name of my late grand-father Angangmacha Singh (my late fathers father) and one 4-roomed house of wood and wooden posts having stone foundation standing thereon, to Yumnam Dharama Singh son of late Angou Singh of the same place for Rs.500/-(rupees five hundred only) for purchasing another one. I have no objection to the purchasers name being mutated on this property. Having received the money in full I execute the deed consciously and put my signature thereon with a revenue receipt and a certificate that it is less than 10 paris of land in the name of Mahajan. The patta has been lost. My late grand-father had left behind him only my late father who again left two sons only. The northern half of the Ingkhol is the share of my elder brother, and it is my share that was sold. I shall be responsible for any objection coming forward. Dated 2-9-1946." 5. The patta has been lost. My late grand-father had left behind him only my late father who again left two sons only. The northern half of the Ingkhol is the share of my elder brother, and it is my share that was sold. I shall be responsible for any objection coming forward. Dated 2-9-1946." 5. On a careful perusal of the deed executed by Ningombam Mani Singh shows that it was by means of a solemn registered document that the disputed property was conveyed through out and out sale and there was no condition of re-purchase attached to this deed. The mere fact that the word Mahajan was used will not in any way go to establish that this deed was really a mortgage deed by conditional sale. 6. Section 58(c), T.P. Act defines mortgage by conditional sale as follows: "58(c) Where the mortgagor ostensibly sells the mortgaged property- on condition that on default of payment of the mortgage money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale; Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale." 7. The above definition clearly shows that the sale deed dated 2-9-1946 can by no stretch of imagination be deemed to be a mortgage deed by conditional sale within the meaning of S.58(c), T.P. Act. 8. Ningombam Mani Singh plaintiff, Asanulla Mia, Ningombam Iboton Singh and Loitongbam Madhumangol Singh witnesses have not deposed that any separate agreement deed regarding repurchase was executed by Yumnam Dharama Singh in September 1946 or later. Saikhom Jhulon Singh P.W.5 has tried to show that the plaintiff asked him to request the appellant to reconvey the property in question to him and appellant 1 agreed to transfer the entire land (including the southern portion) for Rs.1600/-. The evidence of this witness thus shows that there was really no contract for re-purchase but the plaintiff wanted to purchase the land from the purchaser of Yumnam Dharama Singh after the present appellant had acquired the property from him. The evidence of this witness thus shows that there was really no contract for re-purchase but the plaintiff wanted to purchase the land from the purchaser of Yumnam Dharama Singh after the present appellant had acquired the property from him. The mere fact that the vendor was allowed to occupy a house in the property merely as a licensee at will, will not confer any title or any right of re-purchase on the plaintiff. 9. The learned counsel for the respondents has urged that the right of re-purchase will be deemed to be a covenant running with the land under S.40, T.P. Act. The covenant which is annexed to the land is one which binds the land in its inception or which affects the nature, quality or value of the land. The benefit of such a covenant runs with the land for the benefit of which it is expressed to be made, vide Mullas Transfer of Property Act, 3rd Edition, p.186. The right of re-purchase cannot be such a covenant and, therefore, the transferor of Yumnam Dharama Singh cannot be bound by any such covenant even if such covenant had been actually made between Ningombam Mani Singh and Yumnam Dharma Singh. I have shown above that the sale deed dated 2-9-1946 which is an out and out sale deed makes absolutely no provision for re-purchase and the alleged oral agreement regarding re-purchase had not been satisfactorily proved and both the Courts below have concurrently held that such a covenant had not actually been proved in this case. If such covenant had really been entered into, it should have found place in the sale deed dated 2-9-1946 itself. The mere fact that Yumnam Dharama Singh has been somehow pursuaded to depose something in favour of the plaintiff, will not be of any material consequence as he has already parted with the property for valuable consideration by means of the sale deed dated 4-1-1952 Ex.D-A, and mutation has been effected in favour of the present appellants vide Ex.D-B and the jamabandi for the patta No.42/7 I.E.T. Ex.P-A. Maibam Kokngang Singh, Mairenjao Mongoljam Singh and Nameirakpam Lukhoi Singh witnesses for the defendant have proved that this property has been acquired by appellant 2 for valuable consideration and he has got possession over it. After taking into consideration the entire oral and documentary evidence on this record I am definitely of opinion, in view of the law stated above that respondent 1 had no right of re-purchase regarding the disputed property and his suit could not succeed on the basis of that right and it was rightly dismissed by the learned Munsiff. 10. I now proceed to deal with the next and more important point on the basis of which the learned District Judge has decreed the suit. It has been held by him that the plaintiff had a right of pre-emption and this right could be enforced against the present appellant also when Yumnam Dharama Singh executed the sale deed Ex.D-A in favour of appellant 2. In the first place the plaintiff never made any allegation to the effect that he was pre-emptor and that he made the necessary demand as required by the pre-emption law and the present appellant got no opportunity of meeting this case during the course of their evidence as well as arguments. It is, I think not permissible for a Judge hearing an appeal to spin out a new case for a party during the hearing of an appeal. It has been laid down in - Udho Das v. Mehr Baksh, AIR 1933 Lah 262 (A), that the Judge of an appellate Court is not justified in making out a new case for a party which he has not taken in the lower Court. Similarly in - Asa Nand v Mahmud, AIR 1927 Lah 96 (B), it was held that Court ought not to decide a case on a point not raised by parties. In - Narano Mahapatro v. Ramchandra Mardaraja Deo, AIR 1925 Mad 357 (C), it has been held that reversing judgment of a lower Court on a new question not raised by the parties and for which there were not sufficient materials for the Court, is acting with material irregularity. In - Narano Mahapatro v. Ramchandra Mardaraja Deo, AIR 1925 Mad 357 (C), it has been held that reversing judgment of a lower Court on a new question not raised by the parties and for which there were not sufficient materials for the Court, is acting with material irregularity. In - Sujjad Ahamed Chowdhury v. Canga Charan Ghose, 9 Cal WN 460 (D), it was held that the lower appellate Court could not make for the defendant a case which was different from and inconsistent with that set up by him, vide also - Harendra Kumar v. Khemada Kinkar, AIR 1927 Cal 86 (E), in which it has been held that it is not open to an appellate Court to make a new case for the plaintiff and decree the appeal on the ground of abandonment which was never pleaded nor was any evidence gone into on that question; and - janendra Mohan Sen v. Hari Ram Rabha, AIR 1918 Cal 686 (F), in which it was held that where an appellate Court dismissed the plaintiffs suit and affirmed the decision of the primary Court on a case which was neither set up by the plaintiff nor by the defendant and which was inconsistent with the defendants case, the judgment of the appellate Court could not stand and that the case should be remanded to the appellate Court for a rehearing of the appeal. 11. The plaintiff being himself the vendor could not legally assume the role of a pre-emptor and as he had not produced any evidence that he had made any demands I do not think that the learned District Judge was justified in decreeing the plaintiffs suit on the ground of pre-emption. As such the plaintiffs suit could not succeed on any of the grounds on which reliance was placed by him. 12. I am, therefore, definitely of opinion that the decree passed by the learned District Judge is not legally sustainable and so it must be set aside. Accordingly I allow the second appeal and I set aside the decree passed by the learned District Judge and I restore the order of dismissal which was passed by the learned Munsiff. The appellants will get their full costs from the plaintiff-respondent in all the Courts. Respondent 2 will neither pay nor receive any costs. Appeal allowed.