JUDGMENT
Sanjib Banerjee, J.
1. The petitioner seeks to revise an order by which a stranger to the contract which she seeks to specifically enforce has been impleaded as a party. The petitioner suggests that as do minus litis it is her prerogative both to choose her defendants and to limit the scope of the adjudication in the suit.
2. The two key aspects that found favour with the Court below need to be noticed from the impugned order:
…the petitioner [the applicant in the Order 1 Rule 10(2) application! had purchased (a) part of the schedule property in the year 2002 and 2004 and entered into an agreement for purchase of the schedule property by agreement dt. 19.11.02 with the defendant Nos. 1, 2, and others….
I also hold my view that in a suit for specific performance by a purchaser, another purchaser of the same property is a necessary party.
3. On appreciating the fact as first quoted, the Court below came to the conclusion next quoted above, though the wording of the legal proposition may have been wider than necessary.
4. The petitioner urges that a stranger has no place in a suit for specific performance and the entire exercise by the added defendant is mala fide as the added defendant had been foisted on the petitioner and in the proceedings by the other parties to the relevant agreement in an attempt to confuse the issues, enlarge the scope of the suit and, thus, effectively deny the petitioner her rightful due.
5. The petitioner refers to a judgment of the Supreme Court reported at (Kasturi v. Iyyamperumal and Ors.) and submits that the added defendant had already instituted a suit for injunction for restraining the defendants in this suit from transferring certain lands which were distinct from the land being the subject-matter of this suit. The petitioner argues that the test in the Kasturi case laid down by the Supreme Court, in the context of a suit for specific performance, as to who is a necessary party and who is a proper party, were not met in the present case and the order impugned cannot be allowed to stand. The petitioner specifically refers to paragraphs 15 and 16 of the Kasturi case and also relies on the earlier decision of the Supreme Court reported at (Anil Kumar Singh v. Shivnath Mishra) which has been considered in the Kasturi case.
6. In the Anil Kumar Singh case, the party seeking to be impleaded in the suit for specific performance urged that he acquired subsequent interest as co-owner of the subject immoveable property by virtue of a decree. The argument by the stranger in that case was that upon his having secured an interest as a co-owner in the land by operation of the decree, to effectuate the ultimate decree of the specific performance that may be granted in favour of the plaintiff, he was a necessary and a proper party to the suit. Upon noticing the provisions contained in Order 1 Rule 3 and Order 1 Rule 10(2) of the Code of Civil Procedure, the Supreme Court held that the facts in that case were distinct from the facts obtaining in the case reported at (Durga Prasad and Anr. v. Deed Chand and Ors.) where the stranger to the suit in the Durga Prasad case claimed his right through a party to the suit for specific performance.
7. The added defendant has relied on the Durga Prasad case and on another Supreme Court judgment reported at (Ramesh Chandra Chandlok and Anr. v. Chuni Lal Sabharwal (dead) by his legal representatives and Ors.) which later case, may not be apposite in the context of the principal matter in issue at this stage. The added defendant has also referred to a judgment reported at (Vimala Ammal v. C. Suseela and Ors.) where it has been held that a subsequent transferee of an immoveable property can retain the benefit of his transfer by purchase only upon discharging the burden of proving that he had paid full value for the property, that he acted in good faith and that he had no notice of the prior agreement. Again, on facts, such decision may not be relevant here.
8. The added defendant makes a distinction as to who may be a proper party in a suit for specific performance. It is submitted that if the stranger seeking to be impleaded claims title to the subject property through a party to a suit, he would be a proper party whose presence would be desirable in course of the adjudication of the matters in issue in the suit. The added defendant urges that if, however, the stranger seeking to be impleaded, claims a title to the suit in conflict with the title of any of the parties to the suit, he would not be taken on board as that would enlarge the scope of the suit to an adjudication of title to the immoveable properly which the plaintiff in the suit for specific performance, at his own risk, may seek to avoid.
9. The Kasturi case is, as the second paragraph of the report shows, one in which the stranger seeking to be impleaded, claimed an independent title and possession over the subject property and not through the parties to the suit. Paragraphs 2, 7, 9 and 15 of the Kasturi case need to be seen to appreciate the context in which the judgment was rendered:
2. The only question that needs to be decided in this case is whether in a suit for specific performance of contract for sale of a property instituted by a purchaser against the vendor, a stranger or a third party to the contract, claiming to have an independent title and possession over the contracted property, is entitled to be added as a party-defendant in the said suit.
7. In our view, a bare reading of this provision, namely, second part of Order 1 Rule 10 Sub-rule (2) CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead, their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are -(1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party.”
9. We have carefully considered clauses (a) to (e) of Section 19 of the Act. From a careful examination of the aforesaid provisions of clauses (a) to (e) of the Specific Relief Act we are of the view that the persons seeking addition in the suit for specific performance of the contract for sale who were not claiming under the vendor but they were claiming adverse to the title of the vendor do not fall in any of the categories enumerated in clauses (a) to (e) of Section 19 of the Specific Relief Act.
15. As discussed herein earlier, whether respondent Nos. 1 and 4 to 11 were proper parties or not, the governing principle for deciding the question would be that the presence of respondent Nos. 1 and 4 to 11 before the Court would be necessary to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit. As noted hereinearlier, in a suit for specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered into between the appellant and respondent Nos. 2 and 3 and whether contract was executed by the appellant and respondent Nos. 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against respondent Nos. 2 and 3. It is an admitted position that respondent Nos. 1 and 4 to 11 did not seek their addition in the suit on the strength of the contract in respect of which the suit for specific performance of the contract for sale has been filed. Admittedly, they based their claim on independent title and possession of the contracted property. It is, therefore, obvious as noted hereinearlier that in the event, respondent Nos. 1 and 4 to 11 are added or impleaded in the suit, the scope of the suit for specific performance of the contract for sale shall be enlarged from the suit for specific performance to a suit for title and possession which is not permissible in law. In the case of Vijay Pratap v. Sambhu Saran Sinha , this Court had taken the same view which is being taken by vis in this judgment as discussed above. This Court in that decision clearly held that to decide the right, title and interest in the suit property of the stranger to the contract is beyond the scope of the suit for specific performance of the contract and the same cannot be turned into a regular title suit. Therefore, in our view, a third party or a stranger to the contract cannot be added so as to convert a suit of one character into a suit of different character. As discussed above, in the event any decree is passed against respondent Nos. 2 and 3 and in favour of the appellant for specific performance of the contract for sale in respect of the contracted property, the decree that would be passed in the said suit, obviously, cannot bind respondent Nos. 1 and 4 to 11. It may also be observed that in the event, the appellant obtains a decree for specific performance of the contracted property against respondent Nos. 2 and 3, then, the Court shall direct execution of deed of sale in favour of the appellant in the event respondent Nos. 2 and 3 refusing to execute the deed of sale and to obtain possession of the contracted property he has to put the decree in execution. As noted hereinearlier, since respondent Nos. 1 and 4 to 11 were not parties in the suit for specific performance of a contract for sale of the contracted property, a decree passed in such a suit shall not bind them and in that case, respondent Nos. 1 and 4 to 11 would be at liberty either to obstruct execution in order to protect their possession by taking recourse to the relevant provisions of CPC, if they are available to them, or to file an independent suit for declaration of title and possession against the appellant or respondent No. 3. On the other hand, if the decree is passed in favour of the appellant and sale deed is executed, the stranger to the contract being respondent Nos. 1 and 4 to 11 have to be sued for taking possession if they are in possession of the decretal property.
10. In the Durga Prasad case, the situation was where the stranger seeking to be impleaded was found to be a proper party as he claimed his right through a party to the suit. The Supreme Court held that in the context, that a subsequent purchaser of the subject property with notice of the previous contract would be needed to be joined, as a confirming party to the deed of conveyance that the plaintiff might be entitled to upon a decree for specific performance being granted to him.
11. In the present case, the added defendant claims title through, inter alia, the defendants in the suit and, to avoid multiplicity of proceedings and effectually adjudicate the matters in issue, he was rightly added as a party. The order impugned suffers from no infirmity or irregularity in that regard. However, the general enunciation of the law that another purchaser of the same property is a necessary party, is, probably, not the correct position at law. A subsequent purchaser would only be a proper party if such subsequent purchaser traces his title through one of the parties to the suit.
12. The revisional application fails. There will be no order as to costs. Urgent photostat certified copy of this judgment, if applied for, be given to the parties on usual undertakings.