KAFILADDIN Vs. SAMIRADDIN

JUDGEMENT

(1.) This appeal arises out of a suit for specific performance of a contract entered into with the plaintiff by-defendants 1 to 3 on their own behalf and on behalf of defendants 4 to 7. The appeal is by defendants 8 to 10 who are subsequent purchasers of the property agreed to be conveyed to the plaintiff. Both the Courts below have found that the appellants got the kobala from defendants 1 to 3 with knowledge of the agreement between them and the plaintiff. They have accordingly decreed the plaintiff's suit. But it has been argued before us on behalf of the appellants that defendants 4 to 7 were no parties to the contract and that defendant 7 was a minor; therefore the contract on their behalf could not be legally enforced. It appears that defendants 1 to 3 purported to enter into an agreement with the plaintiff for the sale of the property on behalf of themselves and defendants 4 to 7. They subsequently sold the property to the appellants in the same way acting on their own behalf and on behalf of defendants 4 to 7. Defendants 4 to 7 were made parties to the suit and a decree was passed against them by the trial Court. They however did not appear in the suit nor did they prefer any appeal to the lower appellate Court or to this Court. The plaintiff prayed in the suit that the contract with him and defendants 1 to 3 on behalf of themselves and defendants 4 to 7 ought to prevail over the contract entered into by them with defendants 8 to 10. The appellants contend that the plaintiff has not derived any title from defendants 4 to 7 and if therefore they are not bound by the contract the decree of the Court below must be set aside. We do not think that the appellants are entitled in this appeal to object to the specific performance of the contract on the ground that some of the defendants with whom the agreement was made were no parties to the contract in question. This disposes of the appellant's appeal with regard to the question raised by them before us.

(2.) The question that we wish to consider in this case is whether the decree passed by the trial Court is correctly worded. The decree is in these words: The plaintiff's right to the specific performance of the contract claimed be declared and he do get khas possession of the lands in suit. The plaintiff do pay the sum of Rs. 1,226 within a fortnight from the date of the signature of the decree and defendants 1 to 7 within a month thereafter do execute a kobala in favour of the plaintiff in respect to the disputed lands as claimed.

(3.) At the time of hearing of this appeal it struck us that this decree is not according to law. We therefore considered this matter with the help of the learned advocates of the parties. The decree as passed directs defendants 1 to 7 who. were the contracting parties with the plaintiff to execute a kobala in his favour. But it may be said that defendants 1 to 7 had already parted with their interest in the property in favour of the appellants and therefore a document executed by them may not convey the entire interest in the property to the plaintiff.