In a suit for specific performance of a contract of sale, a decree for possession cannot be passed against a stranger to the contract unless the stranger's title is defeasible at the instance of the vendor.

JUDGMENT - M.S. DESHPANDE, J.:---This is an appeal by the legal representatives of the third defendant Mohd. Hanif from the appellate decree by which in addition to the decree for specific performance of contract of sale as against the defendants Nos. 1 and 2, a decree for possession also came to be passed against all the defendants.

2. The respondent No. 1 Mariam Begum brought the suit for specific performance of contract of sale of a house to her for Rs. 6500/- on food of an agreement dated July 2, 1973. An amount of Rs. 500/- was paid at the time of the agreement and the balance Rs. 6000/- was to be paid within 5 months and thereupon the sale-deed was to be executed by the defendants Nos. 1 and 2 the respondents Nos. 2 and 3 herein. Despite the notice sent on April 22, 1975 the respondents Nos. 2 and 3 did not execute the sale deed and she, therefore, sought specific performance against them, and from original defendant No. 3 Mohd. Hanif she sought possession alleging that the respondents Nos. 2 and 3 had placed him in possession. Mohd. Hanif denied that he was placed in possession by the respondents Nos. 2 and 3 and contended that the suit house along with other property belonged to two bothers Mohd. Shakur and Mohd. Sajan. The respondents Nos. 2 and 3 are the sons of Mohd. Shakur, while he is grandson of Mohd. Sajan. According to him, in a family partition the suit house was put on the share of Mohd. Sajan and be ultimately became entitled to that house and his branch has been in possession of the house for more than 50 years. The plea of respondents Nos. 2 and 3 was Mohd. Hanif took possession of the house after the execution of the Issar-pawati without any right and that they were unable to place the plaintiff-respondent No. 1, in possession.

3. The trial Court held that the respondents Nos. 2 and 3 were not the exclusive owners of the house though they had contracted to sell it to the respondent No. 1. It found that Mohd. Hanif was the real owner of the property and, therefore, dismissed the claim. In appeal the learned District Judge held that the respondents No. 2 and 3 were the exclusive owners of the house. Relying on the evidence of Sk. Ameer who was examined by the plaintiffs, he held that Mohd. Hanif had taken possession of the house by breaking open the lock on the Issar-pawati and that the respondent No. 1 was entitled to specific performance of the agreement of sale as against the respondents No. 2 and 3 and also to a decree for possession as against the present applicants.

4. The only question which arises for consideration in this second appeal is whether it was permissible for the lower Appellate Court to pass a decree for possession against the appellants. It may be notice that the respondent No. 1's allegation was that the respondents Nos. 2 and 3 had place Mohd. Hanif in possession after the execution of the Issar-pawati and he was, therefore, joined as a defendant. The case pleaded was clearly that Mohd. Hanif had been inducted into the property by the respondents No. 2 and 3. The only witness who spoke regarding the nature of the possession of Mohd. Hanif on behalf of the plaintiff was Mohd. Abdul Rasheed who stated that Mohd. Hanif all of a sudden illegally and after breaking open the lock entered into the house and occupied it since the date of the execution of the agreement of sale. In his cross-examination he stated that he took possession illegally during the night after the agreement of sale was executed. It was thus obvious that there was no evidence to show that Mohd. Hanif took possession of the property at the instance of the respondents Nos. 2 and 3 or that the latter had inducted him into possession and that Mohd. Hanif was claiming under respondents Nos. 2 and 3. No evidence was adduced on behalf of the appellants at the trial and the leaned trail Judge went by the averments made in the written statement. The learned District Judge did not notice the departure from the plaint when the res

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