The subsequent purchasers were entitled to challenge the findings of the lower courts that the plaintiff was ready and willing to perform the agreement for sale, as they were not bound by the findings of the appellate court in the earlier appeal under Section 105(2) of the Code of Civil Procedure, 1908.

Ashis Kumar Chakraborty, J.

This second appeal, at the instance of the defendants in a suit for specific performance is against the judgment and decree passed by the learned first appellate Court, affirming the judgment and decree for specific performance passed by the learned trial Judge in favour of the respondent.

2. The relevant facts giving rise to the present appeal are stated herein below.

One Rama Prasad Ghosh, since deceased was the owner of various plots of land being Plot Nos. 222, 291, 438, 486, 490, 505, 526, 122, 130, 36, 38, 112, 367 of Khatian No. 69 Akri and Plot No. 357 of Khatian No. 27 Akri at Mouza- Mamudpur in the district of Murshidabad (hereinafter referred to as "the said properties"). In the year 1953, the said Rama Prasad died intestate, leaving behind his wife and three sons namely, Kesab, Jitendra and Nipendra. Since the said Rama Prasad Ghosh died before coming into force of the Hindu Succession Act, 1956 his said properties devolved upon his said three sons, each having one-third share therein.

3. In July 1988 Nipendra, the respondent in this appeal filed a suit, being Suit No. 132 of 1998 (subsequently renumbered as O.S. No. 42 of 1989) before the learned Civil Judge (Senior Division), Kandi, Murshidabad against his elder brother Jitendra, the appellant no. 1, claiming a decree for specific performance of an oral agreement for transfer of the entire one-third share of Jitendra in the said properties in his favour. The case set out in the plaint showed that according to the respondent, in the year 1985 an oral agreement was entered into between himself and appellant no. 1 whereby the latter agreed to transfer his entire one-third share in the said properties to him for Rs. 17,000/-. The respondent claimed that in terms of the said agreement for sale, on April 6, 1985 he paid Rs. 4,000/- to the appellant no. 1 as advance and thereafter by two instalments he paid a further sum of Rs. 6,000/- to the appellant. The respondent further alleged that, on June 21, 1988 when he offered the balance consideration of Rs. 7,000/- to the appellant no. 1 and called upon him to execute the necessary conveyance in his favour, the appellant no. 1 refused to accept the balance consideration and to execute the deed of conveyance in his favour.

4. The appellant no. 1, as the sole defendant contested the said suit. He filed his written statement alleging that he never agreed to sell his entire share in the said properties to the respondent; he only agreed to sell in Plot No. 490 of the said properties to the respondent at a consideration of Rs. 17000/-. He further alleged that the respondent was not ready and willing to perform the said agreement for sale of the said Plot No. 490 of the said property and in any event, he had sold Plot No. 130 of the said property to three persons namely, Ananda Gopal Mondal, Nanda Gopal Mondal and Nikhil Kumar Mondal for Rs. 10,000/- and in the absence of the said three purchasers who are necessary parties, the suit filed by the respondent was not maintainable.

5. On these pleadings, the learned trial Judge framed various issues, three of which were important for deciding this appeal. Those three issues were: (1) whether in the absence of the subsequent purchasers the suit is bad for defect of parties; (2) whether had agreed to sell his entire one-third share in the said properties to the plaintiff; and (3) whether the plaintiff was entitled to a decree for specific performance.

6. Both the parties adduced oral, as well as documentary evidence through their respective witnesses before the learned trial Judge. By a judgment dated November 15, 1989, the learned trial Judge held that the said subsequent purchasers namely, Ananda Gopal Mondal, Nanda Gopal Mondal and Nikhil Kumar Mondal were not at all necessary parties and in their absence the suit was not bad for defect of parties; the appellant no. 1 had agreed to sell his entire one-third share in the said properties to the responden