RAM KRISHNA SARDAR Vs. SREE KANTA MONDAL

JUDGEMENT

(1.) This is an appeal in a suit for specific performance of a contract. The facts, on which the question of law raised by this appeal depends lie within a short compass. It appears that defendant 1 held a jama of Rs. 5 for two and half bighas of land under the superior landlords Ramsebak Sana and others. He contracted to sell this jama to the plaintiff for a sum of Rs. 250 on 29 Magh 1329 B. S. and executed a bainanama after taking an advance of Rs. 85. He promised further to execute a deed of sale within 15 Chaitra 1329 B. S. He, however, failed to perform his part of the contract notwithstanding repeated requests from the plaintiff and, instead of performing the said contract, he as the plaintiff alleged in his plaint, joined with his son defendant 2 who is the appellant in this Court in settling one bigha out of the two and half bighas of land in suit with defendant 3. The present suit had consequently to be instituted by the plaintiff. Defendant 1 died during the pendency of the suit in the primary Court. The main contention of defendant 2 who is the appealing defendant was that, as he was claiming under a title different from that of his father defendant 1, the suit for specific performance and for recovery of possession of the disputed land as against him was not maintainable, and that he had been improperly joined in the suit.

(2.) This objection was taken in the Court of first instance ; but the Munsif negatived it and decreed the plaintiff's suit against defendants 1 and 2 and dismissed the claim for khas possession as against defendant 3 on the ground that he took his lease without notice of the contract for sale, in favour of the plaintiff. The plaintiff, it was ordered by the decree, was to get khas possession of one and half bighas of land and, with regard to the remaining one bigha leased out to defendant 3, the suit for khas possession was dismissed and the plaintiff was declared entitled to rent. The Court of first instance found that the land belonged to defendant 1 and that he was competent to enter into the contract for sale. On appeal to the lower appellate Court, the learned District Judge affirmed the finding of the trial Court on the question of fact as to the plaintiff's title and also held that the objection of the defendant that the suit was bad for multifariousness or misjoinder of parties and causes of action must be overruled, as having no substance in it.

(3.) A second appeal has been preferred to this Court by defendant 2 and the main contention advanced by the learned advocate for the appellant is that, as defendant 2 was claiming under a distinct title to that of his father, the suit was not maintainable as against him and that he ought either to have been dismissed from the suit or that the suit should have been dismissed as against him. In support of this contention, reliance has been placed on several decisions both of the English Court of Chancery and of the Indian Courts. It is argued that the general rule is that a person who is a stranger to a contract is not a proper party to a suit for specific performance of the said contract. It may be conceded that that is the ordinary rule as it is founded on the ground of convenience. But hero the plaintiff's case being that defendant 2 in conjunction with his father defendant 1 set up a title in himself to a portion of the property contracted to be sold, in those circumstances, the ordinary rule, in my opinion, has no application to the facts of the present case. This case really resembles the case which was before this Court and is reported in Mukund Lall V/s. Chhotey Lall [1884] 10 Cal. 1061. It was pointed out by Romesh Chunder <JGN>Mitter</JGN> , J., that the plaintiff in that case: charged defendant 1 with having resorted to certain devices in concert with defendant 3 to defeat his rights arising out of the contract under which he was suing ; he called defendant 3 a mere benamidar and there was no admission on the face of the plaint or in the plaintiff's case that defendant 3 had a separate or distinct interest from that of defendant 1.