Harsha Devani, J.

By this appeal under section 96 of the Code of Civil Procedure, 1908, read with Order XLI of the First Schedule thereto, the appellants (original plaintiffs) have challenged the judgment and order dated 1.11.2001 passed by the learned Civil Judge (S.D.), Anand in Special Civil Suit No.149 of 1993, whereby the suit has been dismissed with costs.

2. The appeal arises in the backdrop of the following facts :

2.1 On or about 18.8.1977, the respondent Ambalal Kalidas (the original defendant) instituted a suit being Special Civil Suit No.182 of 1977 in the court of the Civil Judge (SD), Nadiad, against his five brothers for partition of various movable and immovable properties, which, according to the respondent, were ancestral properties. On 6.2.1985, a decree for partition came to be passed in the said civil suit and certain properties came to the share of the respondent Ambalal Kalidas.

2.2 The respondent Ambalal Kalidas executed an agreement to sell dated 21.1.1991 (hereinafter referred to as the "suit agreement") in favour of the appellants herein and thereby agreed to sell to the appellants the land bearing Survey No.71 admeasuring acres 3 00 gunthas out of sub-plot No.3 (hereinafter referred to as the "suit property") at the rate of Rs. 50,000/- per guntha, which comes to Rs. 60,00,000/- (rupees sixty lakh) . At the time of execution of the agreement to sell, Rs. 5,00,002/- (five lakh and two rupees) came to be paid to the respondent. The tenure of the agreement was two years from the date of execution. The appellants requested the respondent to get the agreement to sell registered, who, however, refused to accede to such request on the ground that the property being ancestral land, any agreement to sell or sale deed without the consent of his sons would be void. By an order dated 1.10.1991 passed by the District Registrar, the agreement was ordered to be registered. On 26.9,1991 one Shri Ramesh Ambalal son of the respondent filed a suit being Regular Civil Suit No.474 of 1991 in the court of the Civil Judge (J.D.) Anand against his father (the respondent) and his five brothers for partition of the ancestral properties, for possession and accounts and for an injunction restraining the respondent Ambalal Kalidas from transferring the properties in any manner whatsoever. One of the properties which formed part of the suit lands in the said case was the suit property. The appellant No.2 had applied to be joined as a party defendant in the said civil suit.

2.3 The appellants thereafter instituted a suit being Regular Civil Suit No.292 of 1992 in the Court of the learned Civil Judge (J.D.) Anand against the respondent Ambalal and his six sons and prayed for a permanent injunction that the defendants therein had no right to transfer the suit land, create third party interest whatsoever, etc. In paragraph 11 of the plaint of the said civil suit, it was specifically stated that the appellants reserved their right to file a separate suit for specific performance of the suit agreement after issuing necessary notice to the respondent Ambalal Kalidas and, accordingly, leave was prayed for under rule 2 of Order II of the First Schedule to the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). Thereafter the appellants issued a registered notice dated 26.11.1992 to the respondent to obtain non-agricultural permission and execute a registered sale deed in favour of the appellants. As the respondent did not comply with the notice, the appellants instituted the present suit being Special Civil Suit No.149 of 1993 against the respondent Ambalal Kalidas Patel for specific performance of the suit agreement. Alternatively, the appellants also prayed for damages of a sum of Rs. 75,00,000/- (rupees seventy five lakh).

3. By the impugned judgment and decree, the trial court has dismissed the suit which has given rise to the present appeal.

4. For the sake of convenience, the appellants and the respondent shall