JUDGMENT :

B.C. Patel, J.

The appellant-original plaintiff has preferred this appeal against the findings recorded by the learned City Civil Judge, 8th Court, Ahmedabad on 29-8-1978 in Civil Suit No. 1552 of 1974 and confirmed in First Appeal No. 975 of 1978 by the learned single Judge of this High Court on 12-1-1983.

2. From the record, it transpires that the plaintiff, by an agreement dated 8-4-1973, agreed to purchase property bearing City Survey No. 2,600 for an amount of Rs. 17,999/- from defendant No. 1 Bai Reva, widow of Fulchand. A sum of Rs. 2,000/- was paid to defendant No. 1 as earnest money and as per stipulation, sale-deed was to be executed within the period of 12 months during which period, defendant No. 1 was required to get her right, title and interest in the suit property cleared. From the record, it transpires that after execution of the aforesaid document by defendant No. 1, Savitaben, daughter-in- law of defendant No. 1 for herself and as a guardian of her minor son Chandrakant together with Babubhai, son of defendant No. 1, filed a suit against defendant No. 1 and Rasiklal - another son of defendant No. 1, for an injunction restraining them from alienating the property in question in any manner whatsoever. Interim injunction was granted as a result of which defendant No. 1 was not in a position to carry out her obligation. The plaintiff by notice dated 6-4-1974 called upon defendant No. 1 to execute sale-deed in his favour and the same having not been complied with, the present suit came to be filed. It is also required to be noted at this stage that on 21-6-1974, the suit filed by Savitaben referred to earlier, was unconditionally withdrawn and on that very day, defendant No. 1 executed document transferring the right in the property to defendant Nos. 2 and 3. The plaintiff filed a suit for permanent injunction restraining defendant No. 1 from transferring, assigning or selling the suit house which came to be withdrawn with a liberty to file a fresh suit on the same cause of action on 2-7-1974 and the suit bearing Civil Suit No. 1552 of 1974 was filed on 9-7- 1974 which is the subject-matter of the appeal. Learned single Judge pointed out that from the evidence, it transpires that defendant No. 1 had only undivided share in the house. No partition had ever taken place. This is the only ancestral property now left in the hands of the members of the family, a part of which is occupied by Babubhai, one of the sons of Fulchand, a part of which is occupied by Savitaben, widow of another son of Fulchand. None of these persons are joined as parry to the suit even though relief for possession of the entire property has been prayed for.

3. Learned single Judge pointed out in the judgment that plaintiff had knowledge about the fact that other persons had also share in the suit house. The suit was not filed for the purpose of compelling defendant No. 1 to convey her right, title and interest in the suit house, but it was for compelling defendant No. 1 to convey full title over the suit house and to recover possession of the entire suit house by virtue of that title. Learned single Judge has pointed out that there is sufficient evidence to conclude that the property was the joint family property. The conclusion is drawn on the basis of certain documents. The plaintiff knew that the property was occupied by Nandlal and Babulal. On re-appreciating the evidence, learned single Judge held that it becomes apparent that the plaintiff knew that Babulal was occupying the suit house on his own right as a heir of deceased Fulchand and yet, he agreed to purchase the property only from defendant No. l. Considering the fact that it was a simple suit for specific performance of an agreement and no relief for possession was claimed against the subsequent purchaser, no relief for possession was claimed, are the facts to be borne in mind.

4. Learned single Judge considered these facts in light of the evidence led by the parties and whil