Judgment

Shah, J.-Leave granted.

2. These appeals are filed by Original Defendant No. 1, Mohammad Yousuf Magray, Defendant No. 3 (Manzoor Ahmed Magray, son of Mohammad Yousuf Magray) against the Judgment and decree dated 14th August, 1998 in CIA Nos. 6 & 8 of 1982 passed by the High Court of Jammu and Kash­mir, Srinagar. The dispute pertains to orchard land measuring 17 kanals and 2 marlas, comprised in Khasra No. 191/45, Khewat No. 43, situated at Shankerpora, Tehsil Chadoora, District Srinagar along with trees. It is the case of the plaintiff that Mohammad Yusuf Magray had entered into an agreement dated 14th July, 1971 for sale of suit land in favour of the plaintiff; the price of the land was fixed at Rs. 4,250/- per Kanal and the advance of Rs. 2,000/- was paid by the plaintiff to defendant No. 1; the sale transaction was to be completed within one and a half months. The agreement further stated that de­fendant No. 1 had an authority from his younger brother, defendant No. 2 to sell the land and was also entitled to transfer the same on behalf of his minor son, defendant No. 13. It was stated that the land was purchased by him. His younger brother and son (both minor) were benamidar co-owners. Out of the agreed sale consideration of Rs. 72,500/-, sum of Rs. 60,000/- was to be paid by the plaintiff to defendant No. 1 at the time of execution of the sale deed and delivery of possession. Balance amount was to be paid by the plaintiff at the time of registration of the sale deed. It was contended by the plain­tiff that as there was escalation in the prices of land, defendant No. 1 dishonestly refused to perform his part of the contract and, therefore, notice was issued for performance of the contract. As plaintiff apprehended that defendants were likely to alienate the suit land, plaintiff filed the suit for injunction in the court of IInd Additional Munsif, Srinagar. Thereafter, as the defendant refused to execute the sale deed, plaintiff had filed the present suit No. 22 of 1974 on 24th May, 1974 for specific performance of the contract before the High Court of Jammu and Kashmir.

3. On the day when the suit was filed, defendant No. 2 (brother of defendant No. 1) was major. However, defendant No. 3 was minor and, therefore, court appointed Sh. K.K. Dhar as guardian who appeared on his behalf during the course of trial. In the written statement filed by defendant No. 1, he has admitted the execution of the agreement dated 14th July, 1971. However, he denied that defendant Nos. 2 & 3 were his benamidars. It was contended that entire land did not belong to him but defendant Nos. 2 and 3 were co-owners. He submitted that he had offered to execute the sale deed in favour of the plaintiff qua his share but it could not materialise because plaintiff was unable to pursuade other defendants to similarly execute the sale deed of their respective shares. Lastly, it was contended that plaintiff had no ready money and he was not ready and willing to perform his part of the contract. Additionally, it was contended that as the agreement was not executed by all the co-owners, it could not be specifically en­forced. In his written statement, defendant No. 2 stated that land was purchased jointly and that all the three defendants were full fledged owners of the 1/3rd share each. Regarding the agreement to sale, he feigned ignorance. On behalf of the defendant No. 3, written submis­sion was filed contending that defendant No. 1 had no authority to permanently transfer his share in the land.

4. It has to be stated that at the time of trial, defendants never stepped into witness box. The learned Single Judge after considering the evidence on record partly decreed the suit of the plaintiff for specific performance of the contract so far it related to 1/3rd share of Mohammad Yusuf Magray (defendant No. 1) and dismissed the suit against defendant Nos. 2 & 3. Against the said judgment, Original Plaintiff Ghulam Hassan Aram preferred CIA No. 6 of 198