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10. In pursuance of the orders of the High Court in C.R.P. No. 2589 of 1992, dated 8-10-1993, all the three suits were clubbed and disposed of through a common judgment at the request of the learned Counsel for both parties.

11. The trial Court noted in the impugned judgment that the agreement of sale in favour of the vendee by the vendor on 21-3-1984 and further payment of Rs. 5,000/- by the vendee to the vendor were admitted. The trial Court observed that the question whether the oral agreement dated 30-8-1982 in favour of the subsequent purchaser was true or not, is not very relevant, as Ex.B.11 written agreement dated 20-1-1984 in his favour was also earlier to Ex.A.1 agreement in favour of the vendee. The trial Court further noted that the vendor, her husband and subsequent purchaser are closely related to one another and that the claim of delivery of possession of 100 square yards to the subsequent purchaser on 30-8-1982 stood belied by the recital in Ex.B. 11 about delivery of possession on the date of that agreement. It further observed that non-examination of the vendor leads to an adverse inference and the absence of any reference to any earlier agreement in favour of the subsequent purchaser in Ex.A.1 agreement in favour of the vendee was another adverse circumstance. Apart from the recital in Ex.A.1 about the delivery of possession of 300 square yards, selling 100 square yards for Rs. 3,000/- on 30-8-1982 within 11 days of purchase of 300 square yards by the vendor on 19-8-1982 for Rs. 5,000/- is ex facie improbable and absurd. No reasons were assigned for the same and the attestors to Ex.B.11 were not examined. The tax receipts and pahanies were subsequent to the suit and hence, the trial Court concluded that the vendee was put in possession of 300 square yards under Ex.A.1 and that Ex.A.1 was not subject to clearance of any earlier agreement. Ex.B.11 was held to be not true and genuine document and the subsequent purchaser was held to be not a bona fide purchaser. The readiness and willingness of the vendee to perform her part of the contract were accepted due to the draft taken for the balance sale consideration and the notices issued by the vendee. The trial Court observed that the subsequent purchaser with a registered sale deed in his favour in respect of 100 square yards is a necessary party though not in possession, but he was made a party to the suit only as per the orders in I.A. No. 44 of 1989, which was filed on 25-1-1989 and allowed on 5-4-1989. The vendee who filed the suit for specific performance on 18-7-1984 had to be imputed with the knowledge and notice of the sale deed in favour of the subsequent purchaser registered prior to the suit in view of Section 3 of the Transfer of Property Act. The trial Court also noted that in O.S. No. 91 of 1993 the subsequent purchaser filed I.A. Nos. 401 of 1985 in which the vendee filed a caveat through her Counsel on 15-6-1985. I.A. No. 401 of 1985 was dismissed on 16-7-1985. As such, the trial Court concluded that even if the vendee had no knowledge of registered sale deed in favour of the subsequent purchaser earlier, she definitely had knowledge since the receipt of notice in I.A. No. 401 of 1985. But the vendee did not take steps to implead the subsequent purchaser as a party to the suit for specific performance either within three years from the execution and registration of the sale deed on 25-5-1984 or within three years from 15-6-1985 when the vendee appeared through her Counsel in I.A. No. 401 of 1985. The trial Court referred to Section 22 (sic. 21) of the Limitation Act, 1963 under which a newly added party would be deemed to be a party to the suit only from the date when he is added and cannot be deemed to be a party from the date of institution of the suit, unless the Court makes a specific order to that effect. The vendee did not seek any such leave and did not state any reasons in the affidavit in support of I.A. No. 44 of 1989 for not impleading the subsequent purchaser earlier. Consequently, the trial Court held that the vendee is not entitled to specific performance in respect of 100 square yards covered by the sale deed dated 25-5-1984, which became binding on the vendee due to the bar of limitation against the subsequent purchaser. But she is entitled to specific performance in respect of the remaining 200 square yards only. Calculating the balance sale consideration at Rs. 250/- per square yard for 200 square yards, the trial Court directed the vendee to deposit Rs. 5,000/- on or before 15-4-1994, upon which the vendor has to execute sale deed, and dismissed the suit against the vendor's husband and subsequent purchaser. The trial Court further found that as the suit in O.S. No. 92 of 1993 filed by the vendee for cancellation of the document did not implead the vendor, the executant of the document, who is a necessary party, the suit is bad for non-joinder of necessary party. The trial Court concluded that the sale deed in favour of the subsequent purchaser is not, ipso facto, null and void and hence, the vendee is not entitled to the declaration sought for in O.S. No. 92 of 1993 and dismissed the suit without costs. The trial Court further concluded that as the subsequent purchaser has a registered sale deed in his favour, which was not questioned in the suit for specific performance and as the suit for declaring the document as null and void in O.S. No. 92 of 1993 was also dismissed, the subsequent purchaser is entitled to declaration of his ownership and recovery of possession of 100 square yards purchased under the sale deed dated 25-5-1984 and hence, decreed O.S. No. 91 of 1993 without costs.

33. Though no direct judicial pronouncement is placed before this Court about the vendor being a necessary party to the suit for cancellation of a sale deed or for declaration that the sale deed is void, the same is inherent and evident from the various precedents referred to above.

34. O.S. No. 92 of 1993 was, in fact, filed for a declaration that the sale deed is null and void and under Section 34 of the Specific Relief Act, any person entitled to any right as to any property, may institute a suit against any person denying or interested to deny his title to such right and undoubtedly the vendor is denying the right of the vendee. Section 35 of the Specific Relief Act makes it clear that such a declaration is only binding on the parties to the suit and the persons claiming through them respectively, and when such a judgment is not in rent but in personam, any such declaration about the sale deed being a nullity without the presence of the executant of the sale deed appears to offend Sections 34 and 35 of the Specific Relief Act. The subsequent purchaser as a person claiming through the vendor cannot represent the vendor's interest in such a suit, as it is not a case of the vendor claiming through the subsequent purchaser. Even for adjudging the written instrument to be void or voidable against the vendee under Section 31 of the Specific Relief Act, the parties to the written instrument are naturally necessary parties. When the relief under Section 31 or Section 34 of the Specific Relief Act is well settled to be in judicial discretion of the Court, exercise of such judicial discretion without notice to and without hearing one of the parties to the document in question, will be illogical, irrational and unjust.

36. The contention that the suit for declaring the sale deed in favour of the subsequent purchaser as void being within limitation and the grant of any such declaration will obviate the necessity of making the subsequent purchaser a party to the suit for specific performance, cannot be sustained firstly as even the suit for declaring the sale deed as void was imperfectly constituted in the absence of the executant of the document and secondly, no provision or principle has been brought to notice whereunder the presence of a party in one suit will constructively make him a party to the other suit. To construe the vendor to be a party to the suit for declaring the sale deed as void as the vendor is a party to the suit for specific performance and the subsequent purchaser as a party to the suit for specific performance as he is a party to the suit for declaring the sale deed as void, both the suits being respectively within the periods of limitation, appears to be seeking adoption of a procedure or interpretation not shown to have legal or judicial acceptance. The findings of fact in favour of the vendee as against the vendor and the subsequent purchaser, of course, became redundant and purposeless, but the vendee has to thank herself for not pursuing her legal remedies in accordance with law. Technical and procedural constraints may not ordinarily defeat valuable rights of a party but equally, if not more, valuable rights accrued to the subsequent purchaser by his not being impleaded in the suit for specific performance within the period of limitation and the vendor by her not being made a party to the suit for declaring the sale deed in favour of the subsequent purchaser as void, cannot also be lightly interfered with. Any inherent power of the Civil Court also cannot be invoked in the face of specific provisions and principles of law and the vendee, therefore, has to be deprived of the property sold by the vendor to the subsequent purchaser.

Point No. 4:

37. The trial Court, as already stated, has calculated the balance of consideration due at Rs. 250/- per square yard for 200 square yards in proportion to an agreed price of Rs. 75,000/- for 300 square yards in the absence of any proof for the claim that the agreed rate was Rs. 375/- per square yard for 200 square yards. The direction to the vendor to execute the sale deed for 200 square yards on such deposit of Rs. 5,000/- excluding the land sold to subsequent purchaser by the vendor from the suit land and further directing dismissal of the suit for default in the absence of such deposit in O.S. No. 20 of 1993, has to be confirmed including the dismissal of the suit against the vendor's husband and the subsequent purchaser. The dismissal of the suit in O.S. No. 92 of 1993 for declaring the sale deed to be void also has to be confirmed and in consequence, the title that passed to the subsequent purchaser from the vendor in respect of 100 square yards stood undisturbed. The decree of O.S. No. 91 of 1993 declaring the subsequent purchaser's title to 100 square yards and directing consequential delivery of possession to him also has to be confirmed. The trial Court exercised its judicial discretion in not awarding costs to either party in any of the three suits. The vendor, vendor's husband and the subsequent purchaser were not able to show any justification to differ with the findings of fact arrived at by the trial Court. The appeals have to, therefore, fail.