KRISHNAMMAL Vs. MSOUNDARARAJA AIYAR

JUDGEMENT

(1.) The question is whether the suits is barred by Order II, Rule 2 of the Civil Procedure Code. The plaintiff obtained a decree in his favour for the execution of the deed of sale in accordance with an agreement to sell property to him. Having obtained the sale deed in execution of the decree he now sues for possession on the strength of the sale-deed. The defendant s contention is that having failed to claim possession also in the previous suit, the present suit is barred and they rely on Narayana Kavirayan v. Kandasami Goundan (1898) I.L.R., 22 Mad., 24. It is true that it was open to the plaintiff to sue not only for the execution of a deed of sale but also for possession in the previous suit. But was he bound to do so? At the time he brought that suit the right to possession was not vested in him. He would acquire that right only on the execution of the deed of conveyance. Possession is not merely an incident or subsidiary to the sale-deed. In a suit for a specific performance the parties to the contract alone need be parties. In a suit for possession all persons in possession are proper parties. I am therefore of opinion that the suit is not barred.

(2.) We dismiss the Second Appeal with costs. Tyabji, J.

(3.) The plaintiff is the purchaser from the defendants Nos. 1 and 2 of the land referred to in the plaint. He sues for possession of the land on the strength of a conveyance executed in his favour by his vendors, the first and second defendants.