B.L.Loomba - (1.) -I have heard learned counsel for the revisionists. The three revisionists are defendants 5 to 7 in the civil suit pending in the Court of Civil Judge, Varanasi, whereby plaintiff seeks specific performance of the registered sale agreement executed in his favour by defendant no. 1 Bhartiya Vikas Company, a registered partnership firm. Defendants 2, 3 and 4 are said to be partners of this firm. The case set up against the defendants 1 to 4, as it appears, is that the firm is dealing with the business of colonisation; sale and purchase of land and that according to their partnership firm agreement each of the three partners was entitled to negotiate and settle the transaction of sale and the deed of sale was to be executed by all the three partners. The plaintiff came with the allegations that a registered sale agreement was executed in. favour of the plaintiff on 14-7-81 but the defendants failed to execute the sale deed and a dispute was thereafter raised informally before the Arbitrator wherein it was decided that the defendants shall execute the sale deed. Even this decision was not complied with and meanwhile defendant no. 4 executed sale agreement in favour of defendants 5 to 7 (present revisionists) two of them are the own sons of defendant no. 4 living with him and third is the brother- in-law of defendant no. 4. These agreements of sale are alleged to be fraudulent having been executed only to avoid the rights of plaintiff and that defendants 5 to 7 had full knowledge of the registered sale agreement in favour of plaintiff.
(2.) DEFENDANTS 5 of 7 claimed that they are unnecessary parties and an issue was framed on the point. It was taken up for consideration along with another issue of correct valuation of the suit. The learned Civil Judge by the impugned order decided both the issues. In so far as the issue relating to the plea of defendants 5 to 7 being not necessary party, the learned Civil Judge considered the factual aspect and recorded a finding that this plea can appropriately be considered and determined only after evidence of the parties is given in the suit. As such, he declined to decide this point as a preliminary issue. Learned counsel for defendants 5 to 7 being aggrieved by the said order of the learned Civil Judge dated 1-5-1989 have filed this revision under section 115 of the Code of Civil Procedure. The burden of grievance as raised is that no relief for specific performance can be claimed by the plaintiff against the defendents revisionists because they claim title in respect of this property independent of defendants 1 to 4 and that in a suit for specific performance a dispute cannot justifiably be determined in respect of interse title controversy between defendants 1 to 4 and defendants 5 to 7. In support of the plea the learned counsel for the revisionists has cited two decisions. The first in Mohd. Hanif v. Mariam Begum, AIR 1986 Bombay 15 and the other Mt. Nagi v. Damodhar Jagobaji, AIR (35) 1948 Nagur 181. The decision in Mohd. Hanif's case (supra) was in second appeal and upon consideration of the evidence and the factual aspects of the matter the Bombay High Court came to the conclusion that the controversy was as regards title and this could not be determined in a suit for specific performance. In the other case of Mt. Nagi, the scope of specific performance of sale agreement was considered in Civil Revision under section 115 CPC and it was held that this court cannot enlarge the scope to turn a controversy into a title suit. Respectfully I agree with broad proposition of law laid down in the two decisions. However, on facts these decisions have no application or assistance for determination of the points which have been raised in this revision under section 115 CPC. The learned counsel for the revisionists argues that there is a real and genuine dispute as to the title and for that reason the learned Civil Judge ought to have considered this aspect as a preliminary issue even after recording some evidence if in the opinion of the learned Civil Judge it is expedient and necessary to have taken evidence on this point. Upon consideration, it is difficult to accept this submission. The learned Civil Judge has considered the point and is of the view that the pleas raised by defendants 5 to 7 can be taken up and determined only after the evidence in the suit has been given. In the nature of the dispute and in the context of allegations raised in the plaint the impugned order cannot be said to be suffering from any illegality of jurisdiction or procedure. The plea of the defendants-revisionists will of course require consideration and disposal on merits. It would be appropriate for the learned Civil Judge to expedite disposal of the suit itself.
(3.) THE revision lacking merit is dismissed in limine. Revision dismissed.;