A.P. BHANGALE, J.

1. Heard submissions at the bar. The first appeal is preferred against the judgment and order dated 10-01-1996 passed by learned III Joint Civil Judge Senior Division, Pune whereby the Special Civil suit No. 568 of 1993, was partly decreed and the Trial Court awarded Decree in the sum of Rs.50,000/- (Rupees Fifty Thousand) with interest at the rate of Rs. 21% per annum from the date 1st December, 1986, till final realisation.

2. The facts briefly mentioned are:-

Original defendants Natwarlal C. Modi and others owned suit property admeasuring five ares out of land bearing Survey No. 122 Hissa No. 3, 4A, and 5 with total area of 241 Ares situated at village Karla, Taluka Maval District Pune. They had in the year 1986 approached the appellant (Original Plaintiff) intending to sell the suit property. Oral agreement took place. The Plaintiff agreed to purchase the suit property for the sum of Rs.50,000/- (Rupees Fifty Thousand). The Defendants agreed to give clear marketable title to the suit property, agreed to procure certificate under Section 230 A of the Income Tax Act, demarcate the suit property and then to hand over the possession of he suit property to the Plaintiff for the consideration of Rs. 50,000/- (Rupees Fifty Thousand). The Plaintiff paid the entire sum in November 1986 by a post dated Cheque bearing no. 24158 dated 01-12-1986 drawn upon Bank of Oman Limited payable to the Defendant No.1, Mr, Natwarlal C. Modi. In First or second week of December 1986, the Defendants had brought the written agreement to the Plaintiff and took signature of the Plaintiff stating that it was informal and agreed to bring the proper agreement embodying all the terms and conditions agreed between the parties. The plaintiff was put in possession of the suit property with effect from 01-12-1986.The defendants had failed to execute the sale deed as agreed. Hence Plaintiff sent notice dated 20th March, 1991. It was falsely replied as the defendants were intending to create third party interest in the suit property .The Plaintiffs lodged criminal case no. 41 of 1993 as well in the Court of metropolitan Magistrate, at Mumbai. The suit for specific performance of the contract was filed as the defendants failed to execute their Part of the contract and committed the breach and took the disadvantage. The defendants failed to file the written statement and the suit had proceeded without the written statement.

3. The trial court acting upon the pursis filed on behalf of the defendants that the defendants had sold the suit property in 1991 and that they were no longer owners of the suit property blamed the Plaintiff for not taking steps to add the subsequent purchaser as party to the suit. The trial court on the ground that the defendants were no longer owners of the suit property refused the grant of decree for the specific performance of contract. The trial court did note that Exhibit-28 was the agreement to sell and that the amount of consideration of Rs.50,000/- (Rupees Fifty Thousand) was paid to defendants and further that the Defendants had failed to execute the sale deed in favour of the Plaintiff. The trial Court held that the Plaintiff had failed to lead evidence as to the extent of special damages claimed. The unchallenged amount of Rs.50000/- (Rupees Fifty Thousand) with interest claimed was thus decreed while the decree for specific performance was refused. The suit was thus partly decreed.

4. Advocate Shri Nakhwa for the appellant invited our attention to the ruling in Kasturi vs. Iyyaperumal and Others, (2005) 6 SCC 733: AIR 2005 SC 2813 reported in to submit that the trial Court ought to have insisted upon the further particulars and ordered joinder of necessary and proper parties to the suit when by a pursis the defendant informed the trial court that the suit property was sold to some third party, without furnishing any details or particulars as to when , how and to whom the suit property was sold . The tri