BIRBAL YADAV Vs. SUCHAN THAKUR

JUDGEMENT

(1.) This civil revision application is directed against the order dated 22-2-1997 passed by the Subordinate Judge, Madhepura, in Title Suit No. 55 of 1991 rejecting the petition filed by the plaintiff-petitioner for amendment of the plaint.

(2.) The plaintiff-petitioner instituted the aforesaid suit for a decree for specific performance of contract between him and defendant Nos. 1 and 2 in respect of the suit lands measuring 2 Bighas, 17 Kathas and 4 dhoors. The plaintiff' case is that by virtue of an agreement dated 28-10-1988, the defendant Nos. 1 and 2 agreed to sell and transfer the suit land in favour of the plaintiff on consideration of Rs. 53,000/- out of which a sum of Rs. 34,000/- was paid as advance and the balance was agreed to be paid at the time of execution and registration of the sale deed. The vendors-defendant Nos. 1 and 2 appeared and filed written statement stating, inter alia, that the suit land had been sold to various persons. The plaintiff' case is that after knowing the aforesaid fact from the written statement filed by defendant Nos. 1 and 2, a petition for amendment of the plaint was filed seeking permission to amend the plaint by impleading the purchasers as party defendants. The said petition was opposed by the defendant Nos. 1 and 2 on the ground, inter alia, that the plaintiff had knowledge about the sale of the suit property to different persons and, therefore, the petition for amendment is belated one. The learned Court below after hearing the parties rejected the amendment petition holding that the plaintiff had knowledge of the sale made by defendant Nos. 1 and 2 in favour of different persons.

(3.) I have heard learned counsel appearing for the parties and perused the impugned order passed by the learned Court below. It appears that the Court below neither correctly appreciated the law nor the facts of the case while considering the amendment of petition. It is well settled that in a suit for specific performance, the transferee from the vendors with notice of the prior contract of sale is necessary party in a suit. It is equally well settled that when promisor-defendant acts in concert with another person in order to defeat the plaintiff' right under the contract then such person is to be added as party-defendant in a suit for specific performance. Even the persons claiming under the earlier agreement of sale in their favour and in possession of the suit property are necessary and proper party to the suit for specific performance of agreement to sell notwithstanding that the suit was for specific performance simpliciter where no consequential relief of possession or injunction was claimed.