1. These second appeals are argued, first, on the ground that the 3rd defendant has. prescribed for a full title to the properties, items Nos. 1 and 5. The evidence shows that he was admitting his position as a tenant in 1884, though since then he has not paid rent. Failure to pay rent is not such an assertion of rights as will make a tenant's possession adverse. We accept the lower Appellate Court's decision on this point.
2. Next, it is argued that the plaintiff's contract is, with reference to Section 22(1) of the Specific Relief Act, not one of which specific performance should be decreed. The contract, no doubt, Entitled the plaintiff to buy land worth intrinsically Rs. 2,600 for Rs. 500 and a promise to return 200 Tsulies of the whole 10 acres on possession being given and these terms are at first sight unfavourable to the 1st and 2nd defendants. But, on the other hand, the vendors' title to the land was open to considerable suspicion; and the exertion and expense necessary to enforce it were presumably in the minds of the parties. There is no evidence either of any facts, unknown to or fraudulently concealed from one side, of which ;the other vas aware, or of the use of undue influence; and such evidence is necessary in order to justify the application of this provision. This ground of appeal, therefore, must fail.
3. The remaining argument is that the 3rd and 4th defendants should not have been made parties, because the contract, to which they were strangers, between the plaintiff and the 1st and 2nd defendants was for the sale of the land and did not include the giving of possession of it by the last mentioned. The plaintiff, no doubt, in the plaint alleged an agreement as to giving of possession. But the plea does not appear to have been persisted in, and we, therefore, do not consider it. In the absence of an agreement to give possession, there is nothing against our applying the principle enunciated in Bugata Appala Naidu v. Chengalvala Jogiraju 32 Ind. Cas. 237 and holding that the 3rd and 4th defendants are not proper parties to the suit.
4. The second appeals are, therefore, allowed to this extent that so much of the lower Appellate Court's decrees as relates to possession will be expunged. In other respects they are dismissed. There will, in the circumstance, be no order as to costs in this Court.