V. RAJAGOPALA REDDY, J.

( 1 ) THIS appeal is brought by the plaintiff in OS No. 9 of 1984 on the of the Principal Subordinate Judge, Srikakulam. The suit is for specific performance of the agreement dated 8-8-1980 in respect of an agricultural land of an extent of Ac. 3. 24 cents in S. No. 192/5 of Suryaraopeta, Kakinada or in the alternative to refund the advance of Rs. 80,000. 00 along with interest. The Court below partly decreed the suit directing refund of the advance and rejected the relief for specific performance.

( 2 ) DEFENDANTS 2 to 5 are the sons of Dl and all of them constitute Hindu Joint Family. The defendants agreed to sell the property at the rate of Rs. 70,000. 00 per acre and the agreement of sale was executed and an advance of Rs. 30,000. 00 was paid on the date of execution. It was agreed that the appellant should pay an amount of Rs. 50,000. 00by 25-9-1980. Thereafter the property should be measured and on the actual extent to be ascertained, the balance of the sale consideration to be paid by 25-11-1980. On measurement the extent came to Ac. 3. 24 cents. Though the extent was measured twice in the Revenue records it was only Ac. 2. 97 cents, the appellant agreed to take the sale-deed for Ac. 3. 24 cents provided the respondents gave warranty of title and indemnity for the excess land. As the respondent did not agree, the matter was referred to the arbitrators. The arbitration, however, did not fructify. Notices were exchanged between the parties but the respondents refused to give any warranty. The appellant also came to know about the Notification regarding land acquisition prior to the agreement of sale. The respondents delayed the performance of their duty and ultimately were not prepared to execute the sale-deed. The appellant therefore filed the suit for specific performance of the contract or alternatively for refund of the advance paid.

( 3 ) IN the written statement filed by Dl, it is his case that the defendants were enjoying their shares separately. The execution of the sale-deed on payment Rs. 80,000. 00 was admitted. The agreement came into existence only after the parties discussed the extent of land, presence of koradies on cilher side and the fact of the respondent being in possession of the land within the koradies. It was therefore agreed that whatever the area was within the boundaries which would be ascertained after measurements, for that area the sale consideration should be paid. Hence, it is the case of the respondent that the appellant should pay for the extent of Ac. 3. 24 cents which was found on measurement. As the appellant did not turn up, the first respondent contacted him on 21-11-1980 and 23-11-1980 and at the request of the appellant who was finding it difficult to raise funds to pay the sale consideration, Dl thought of granting some more time for paying the remaining sale consideration and for execution of sale-deed. He therefore issued a notice dated 29-11-1980 asking him to complete the transaction within 10 days. In reply to the notice, the appellant raised the questions as to the extent of the land and the title of the respondent to the entire property. The respondent was also prepared to execute the sale-deed for Ac. 2. 97 cents for which the appellant admitted the title of the respondent provided the appellant leaves the remaining area of Ac. 0. 27 cents abutting the road on the west. But the appellant was not prepared to take the sale-deed even for the agreed extent of land which forced the respondent to give a reply dated 12-4-1981 cancelling the agreement. The appellant has not made any grievance of the cancellation of the agreement and he kept quiet. The respondent after a very long time thereafter in order to avoid the litigation approached a common friend to settle the matter amicably. But as the respondents had heard that the land is under acquisition proceedings, though no notice was served on the respondent by the Government nor any notification was publis

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