( 1 ) THIS appeal is filed against the judgment of the learned single Judge in A. S. No. 1936 of 1988, dismissing the appeal filed by the unsuccessful plaintiffs in the suit laid for specific performance of the agreement of sale dated 11-9-75.

( 2 ) DEFENDANTS 1 and 2 executed an agreement of sale dated 11-9-75 in favour of the plaintiffs agreeing to convey the plaint schedule property in an extent of Ac. 1-20 guntas of land situated in S. No. 766 at Kedada by executing a registered sate deed and agreeing to deliver possession of the land. The sale consideration was fixed at Rupees 1,10,000/- and the plaintiffs paid a sum of Rs. 40,000. 00 towards advance and the balance was agreed to be paid within three months thereafter. It was stipulated that the defendants should satisfy the plaintiffs about their title to the property and that it is also unencumbered. While so, the third defendant issued a notice dated 30-11-1975 to the first plaintiff and to first defendant, who is the brother of the third defendant, through a counsel disputing the title in himself. On receipt of the said notice, the plaintiffs approached defendants 1 and 2 and requested them to resolve the dispute and receive the balance of sale consideration. Defendants 1 and 2 assured that they would resolve the dispute and the first defendant got issued a reply dated 11-12-1975 to the third defendant reiterating that the plaint schedule property fell to his share in a partition between himself and the third defendant. The third defendant reiterated his stand by sending a reply dated 28-12-75. The first defendant issued a further reply to third defendant and defendants 1 and 2 issued a notice dated 6-10-76 to the plaintiffs calling upon them to pay the balance of sale consideration within one week from the date of receipt of that notice and obtain a registered sale deed, making it clear that if the plaintiffs failed to do so, the agreement shall stand cancelled, and the advance paid by them would be forfeited.

( 3 ) SUBSEQUENT to the notice dated 6-10-76, the plaintiff filed the suit on 16-1-80 for specific performance of the agreement or in the alternative for recovery of Rs. 40,000. 00paid by them as earnest money with interest in a sum of Rs. 1,65,000. 00 as damages for breach of contract with the above mentioned averments. Defendants 1 and 2 took the stand that the plaintiffs entered into an agreement of sale after being satisfied about the title of the defendants in the suit property. They denied that the plaintiffs approached them to resolve the alleged dispute regarding the title and to convey the suit property by receiving the balance of sale consideration and asserted that the plaintiffs were never ready to pay the balance of sale consideration, but colluded with the third defendant and got issued a false notice. They averred that further to the demand of the defendants to pay the balance of consideration by the notice dated 6-10-76, the plaintiffs kept quite for a long period of three years and filed the suit and therefore, they are not entitled for specific performance of the agreement of sale, nor to the refund of the advance amount, as the said amount has been forfeited in accordance with the terms of the agreement and they are also not entitled to any special damages as claimed. The third defendant took the stand that the suit land and some other properties were the joint family properties of their father and that there was a partition amongst the joint family, and that he is not bound by the suit agreement as he was not a party to the same, and that he is not a necessary party to the suit.

( 4 ) NECESSARY issues were framed by the trial Court and it was found that the plaintiffs were not ready and willing to perform their part of the contract, and they were not ready with the balance of sale consideration and dismissed the suit. The plaintiffs preferred appeal before this court. The learned single Judge agreed with the findings of the