- (1.) This appeal at the instance of the defendant No.1 arises out of a suit filed by the plaintiffs, Sri Pronab Kumar Mukherjee and Sri Sukumar Banerjee, for specific performance of a contract for reconveyance of immovable property. The case made out in the plaint is that the plaintiffs are the sons of late Mohonanda Banerjee by his second wife, late Gayatri Debi. The pro-defendant no.4, Sankari Debi, is the plaintiffs' step mother, being the first wife of late Mohonanda Banerjee and the pro-defendants nos.2 and 3 are the plaintiffs' step-brothers. During the minority of the plaintiff no.2 and the pro-defendants nos.2 and 3, the plaintiff no.1 for self and on behalf of the plaintiff no.2 as the latter's guardian and the pro-defendant no.4 for self and on behalf of the pro defendants nos.2 & 3 as their guardian jointly sold the suit land to the principal defendant no.1 by a registered Kobala dated 4.11.58 for a consideration of Rs.1700/-.On the same date, simultaneously with the sale, the principal defendantno.1 executed and registered an Ekrarnama stipulating thereby a reconvey the self-same property in favour of the vendors for the same amount of consideration, if paid within Chaitra 1370 B.S. It is alleged that since the beginning of Chaitra 1370 B.S. the plaintiffs had been asking the pro-defendants nos.2 to 4 to enforce the contract for reconveyance of the suit land and also the principal defendant no.1 to execute and register necessary deed of reconveyance with respect to the same in term of the contract. It is alleged that the plaintiffs are not residing at their native village. The principal defendant no.1 has managed to keep the pro-defendants nos.2 to 4 away with false promise that after the expiry of the term of the Ekrarnama, i.e. Chaitra 1370 B.S. he would reconvey the suit property to them alone. As a result of the false promise the pro-defendants nos. 2 to 4 have been keeping away from joining with the plaintiff to claim reconveyance of the suit property. Finding no other way, the plaintiffs repeatedly requested the principal defendant no.1 to execute and register necessary deed of reconveyance in respect of the suit property on accepting the stipulated amount entirely from them. On some pretext or other, the principal defendant no.1 by a notice dated 6.6.64 to execute and register necessary deed of reconveyance at the Memari Sub-Registry Office on 27th Chaitra 1370 B.S. on accepting the stipulated amount from them. But the principal defendant no.1 did not comply. Hence the plaintiffs filed the suit upon depositing the stipulated money in the Court. The pro-defendants nos.2 to 4 have been impleaded as defendants as they have refused to join as plaintiffs. The principal defendant no.1 contested the suit by filing a written statement, inter alia, starting that the suit was bad for defect of parties, inasmuch as, the pro-defendants nos. 2 to 4 had not joined as plaintiffs. The agreement in favour of the plaintiffs and the pro-defendants nos.2 to 4 was one and indivisible and hence the plaintiffs alone could sue for specific performance thereof. It was further stated that the plaintiffs having sold away their subsisting rights in the suit land to one Panchugopal Ghose on 3.4.64,they cannot maintain the suit for specific performance and the suit was liable to be dismissed. The learned Munsif decreed the suit. The appeal having been dismissed, the defendant no.1 preferred the present second appeal. Both the Courts below, inter alia, held that the plaintiffs alone had right to maintain the suit for specific performance of a contract though all the promises were not made parties to the suit for specific performance as plaintiffs. It was not necessary that the two contracting sides must be arranged as plaintiffs and defendants. It had also been held by the appellate Court below that a contract could be enforced by some of the promises and if the remaining do not want to join as plaintiff, they might be impleaded as party defendant and could stand in the way of maintainability of the suit for specific performance of contract, namely, reconveyance of the property in suit. Admittedly in this case, reconveyance was agreed upon by the defendant no.1 with the plaintiffs and the pro-defendants nos.2 to 4. It is further clear that the pro-defendants nos. 2 to 4 have not joined as plaintiffs in the suit for specific performance of contract for reconveyance of 1.82 acres of agricultural land appertaining to plot no.414 and 16. ? acres of agricultural land appertaining to plot no. 523 of Mouza Illampur, P.S. Jamalpur. From the facts as hereinbefore stated, it is clear that the reconveyance was agreed to by the defendant no.1 in favour of the plaintiffs nos.1 and 2 and also the pro-defendants nos.2 to 4.
(2.) Mr. Banerjee on behalf of the defendant-appellant contended that the suit was not maintainable at the instance of the plaintiffs only as the pro-defendants nos. 2 to 4 had not joined in the suit as plaintiffs. The right, if any, of reconveyance was joint and individual right in favour of all of them together and if some of the promises were left out and not joined as cases for my consideration, namely, (1) 24 ILR(Cal) 832 (Safiur Rahman v. Maharamunnessa), (2) 6 CLJ 558 and (3) AIR 1960 Cal. 187 (The State v. Abdul Sukur).
(3.) Mr. Ghosh on behalf of the respondent, however, contended that in view of the decisions reported in AIR 1937 Nag. 186 (Jagdeo Singh v. Bisambhar). 75 CWN 391 (R. Kamila v. Kiran Bala Dasi) and AIR 1937 Mad 596 (Abdul Aziz v. Abdul Sammad) the suit as framed was maintainable. In so far as the second argument of Mr. Ghosh is concerned, it appears that in Panchugopal's deed, the Ka schedule property was included by mistake or accidental error. Panchugopal had filed a Nadabi Patra on 21.6.65 which was admitted into the evidence. In that view of the matter, there is no merit in the contention that the plaintiffs have no locus standi to institute a suit as the property was sold to the other by the parties.;