C.M. Lodha, J.
1. The subject matter of dispute in this appeal consists of two plots of agricultural, situated in village Rajodiya, Tehsil (sic). Rao Raja Ramnath Singh agreed to sell the land in question to the plaintiff-respondents Jeevanlal and Bhagwati (brothers) for Rs. 8000/- by a document dated 9.9 65 marked Ex. 1 on the record The plaintiffs case is that a part of the sale price, i.e. Rs. 660/- were piid to Ram Raja Ramnath Singh prior to 9.9.1965 and Rs. 1000/- were pard on 9.9.1965 at the time of execution of Ex. 1, & it was fur her agreed that the balance of the sale price, i.e. Rs. 400/- would be pard before getting the sale deed registered. The plaintiffs allegation is that even though the sale deed was not got registered the vendcr Ramnath Singh nevertheless handed over the possession of the land to them. But, subsequently their allegation is that the appellant Mirza Mahmood Bag started interfering with their possession over the land in dispute as a result of which proceedings were initiated Under Section 145 Cr. P.C which terminated in favur of the plaintiffsby the order dated 31.1.1967 (Ex. 3). However, the plaintiffs were not able to obtain possession of the land. Consequently, they served notice Ex. 4, dated 4.10.1966 on Ramnath Singh calling upon the latter to execute and get registered a sale deed in their favour and filed the present suit on 31.10.1966, impleading Rao Raja Ramnath Singh and Mirza Mahmood Beg as defendants to the suit and prayed that a decree for specific performance of the agreement to sell Ex. 1, be passed in their favour and so also a decree for possession of the land be granted to them. A further prayer was made that a perpetual injunction may be issued against the defendants restraining them from interfering with the plaintiffs possession over the land in dispute.
2. Rao Raja Ramnath Singh denied the plaintiffs' suit and pleaded that he had sold the land in dispute to the defendant No. 2 Mirza Mahmood Beg by a registered sale deed, dated 15. 6.1966 for a consideration of Rs. 12000/-. Among other pleas taken by him the important ones were that the Civil Court had no jurisdiction to try the suit and the agreement Ex. 1 was in any case unenforceable at law as it was uncertain. Certain other legal pleas were also taken but it is not necessary to refer to them in detail; in view of the conclusion to which I have come and which I shall presently state.
3. Defendant No. 2 filed a separate written statement and set up his own title to the land on the basis of the sale deed dated 15.6.1966 marked Ex. A-1. He also resisted the plaintiffs suit on grounds identical with those taken up by the defendant No. 1. The trial court framed 15 issues on the pleadings of the parties and after recording the evidence decreed the plaintiff's suit by its judgment dated 12.8.1971 from which this appeal has been preferred by the defendant Mirza Mahmood Beg.
4. It may be stated here that in the course of arguments before the trial court Mirza Mahmood Beg made an application dated 10-8-1971 wherein he raised an objection that Hassam Beg, who was a co-vendee in the sale deed Ex. A-1 was a necessary party to the suit, and since Hassam Beg had not been made defendant in the case the suit was liable to be dismissed on account of non-joinder of necessary party. The learned Additional District Judge dismissed this application and held that Hassam Beg was not a necessary party to the suit It was also held by him that such an objection could not be entertained without a specific pleading in the written statemant.
5. In this Court also an application has been made by Hassam Beg supported by an affidavit that he is a necessary party to the suit and he mav be ordered to be impleaded in the array of respondents. There is another application filed in this Court by the appellant under Order 6, Rule 17 Civil P.C. praying that he may be allowed to amend the written statement so as to take a plea about nonjoinder of Hassem Beg as a party to suit, and the suit being not maintainable in his absence.
6. learned Counsel for the appellant after stating the facts of the case submitted that since the prayers contained in the aforesaid applications went to the root of the matter, the arguments may first be heard in respect of them as in case any of these applications is granted the case will have to be sent to the trial court for fresh proceedings. I found force in this submission and have therefore heard learned Counsel for the parties on these applications.
7. It may be noticed that the sale deed Ex. A-1 in favour of the alleged subsequent transferees is in favour of two persons, namely defendant No. 2 Mirza Mahmood Bag. and his son Hassam Beg. It is true that unless the subsequent transferees are able to show to the contrary, the plaintiffswould be entitled to get a decree for specific performance not only against the original vendor, but also against the subsequent transferees. There is no again saying the fact that Hassan Beg is one of the subsequent transferees as mentioned in the sale deed. The contention of the learned Counsel for the platntiffs-respondents is that Hassan Beg had no interest in the sale but he was only Benamidar and the real purchaser was his father Mirza Mahmood Bag. The learned District Judge has found that no consideration passed from Hassam Beg, who was a minor at the time of the sale and consequently he was not a necessary party to the suit. It is contended on behalf of the appellant that there is nothing on the record to show that Hassam Bag was a minor on 15- 6-1966 or that it was admitted by the appellant before the learned trial court that he was a minor Be that as it may, Hassam Beg would not be bound by any findings given by the learned trial court on his back without impleading him as a party to the suit. However, it appears to me that in order to pass an effective decree and to avoid multiplicity of suits it is but proper that Hassam Beg must be impleaded as a party to that suit. Thus the prayer for impleading Hassam Beg as defendant to the suit is reasonable and proper Accordingly, I allow Hassam Beg's application dated 22-8 -1973 made in this Court and direct that he may be impleaded as defendant No. 3 in the suit.
8. Ordinarily Under Section 21(1) of the Limtation Act a new defendant shall be deemed to have substituted when he is so made a party. But there is a proviso Under Section 21(1) according to which when the Court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith, it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted at any earlier date.
9. In the present case no objection was taken by Mirza Mahmood Beg, po less a person than the father of Hassam Beg as to the non-joinder of Hassam Beg as a party to the suit. On the other hand it appears that in the proceedings Under Section 145 Criminal P.C. he asserted his exclusive right to the land in dispute and even in the present suit right upto the stage of arguments he conveniently kept mum on this point even though under Order 1, Rule 13 Civil P.C. all objetions on the ground of non-joinder or mis joinder of parties shall be taken at the earliest possible opportunity, & in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen. It is abundantly clear that the ground of objection existed very much on the date of filing of the written statement. On the other hand the tenor of the written statement shows that he asserted his exclusive right to the land in dispute. It is further borne out from the record that the sale deed Ex. A-1 was produced at a very late stage while the defendant Mirza Mahmood Beg was being examined as a witness.
10. learned Counsel for the appellant drew my attention to notice Ex. 1 wherein the plaintiffs have mentioned that they had been informed that the land had been sold to Mirza Mahmood Beg and Hassam Beg. On the basis of this notice it is sought to be argued that the plaintiffs were aware of the fact that the sale deed Ex. A-1 had been executed in favour of Hassam Beg also, and, therefore, Hassam Beg should have been impleaded as a defendant in the case. It may be pointed out that by aforesaid averment in the notice it cannot be said that the plaintiffs had prositively come to know the contents of the sale deed and they seem to have only reproduced in the notice the information that they got. In any case it was the duty of the defendant Miiza Mahmood Beg to have specifically raised the objection regarding non joinder of Hassam Beg and if he had done so, the plaintiffs may have impleaded Hassam Beg as a party to the suit within limitation. And now it would be most unjust to allow the defendants to take the advantage of their own wrong and furnish them with an arm to non suit the plaintiffs on the ground of limitation. I, therefore, consider this case eminently fit for pressing into service the proviso to Sub-section (1) of Section 21 of the Limitation Act and direct that the suit against Hassam Beg shall be deemed to have been instituted on 31-10-1967, when the suit was filed.
11. In view of the conclusion to which I have come it is not necessary to deal with the appeal on merits and the judgment and decree under appeal have to be set aside and the case has to go back to the trial court for fresh proceedings according to law. Let Hassam Beg be impleaded as defendant No. 3 to the suit and the parties be allowed to make consequential amendments in their pleadings.
12. Accordingly, I allow this appeal in part, set aside the judgment and decree under appeal, and remand the case to the trial court for fresh proceedings in light of the observations made above. The appellant Mirza Mahmood Beg will pay half the costs of this appeal to the plaintiff-respondents.