An agreement for sale executed by one co-sharer for the entire land cannot be enforced against the other co-sharer who has not agreed to the sale.

This appeal has been filed against the Judgment and decree dated 20-8-92 passed by the learned Assistant District Judge, Tinsukia in Title Suit No. 95 of 1986.

2. A suit was instituted by the plaintiff-Respondent for specific performance of contract. The case of the plaintiff is that the defendant No. 1 Shri Shyam Sundar Chowkhani and his father, the original defendant No. 2 late H. P. Chowkhani jointly owned a plot of land measuring 10 Bighas-3kathas-3Lechas at Digboi. They agreed to sell the suit land to the plaintiff, plaintiffs also agreed to purchase at the agreed value of Rs. 1,01,501/- (Rupees one lakh one thousand five hundred one). The defendant No. 1 received an amount of Rs. 26,501/- (Rupees twenty six thousand five hundred one) on 5-10-82. The defendant no. 2 received an amount of Rs. 15,000/- (Rupees fifteen thousand) on 9-11-92 and the defendant no. 1 received a further sum of Rs. 60,000/- (Rupees sixty thousand) on 23-11-82. Thus the defendants received the entire amount of full consideration for the sale of the aforesaid land and on 1-2-83 they agreed to execute the final registered sale deed on return of the defendant No. 1 from Calcutta. On his return on 1-6-83 both of them delivered possession of the land in favour of the plaintiff. But a registered deed was executed only for 6 Bighas of land out of total land of 10 Bighas 3 Kathas-3 Lechas. They told the plaintiff that they were not in a position to execute the sale deed for the entire land because of income tax problem. The defendants were reminded to execute the sale deed for the balance of the land. A notice was also issued by the Advocate, but the defendants instead of executing the sale deed filed an application under S. 144 of the Code of Criminal Procedure before the Executive Magistrate, Dibrugarh, which was however dropped. A proceeding under S. 145 of the Code of Criminal Procedure was also initiated through an employee of the defendants and that was pending at the time of filing of the suit. Hence this suit for the specific performance of contract and/or refund of an amount of Rs. 81,501/- (Rupees eightyone thousand five hundred one) with interest at the rate of Rs. 12% per annum.

3. The original defendant No. 2, Shri Hanuman Prasad Chowkhani died during the pendency of the suit and the heirs were brought on the record. The Defendants Nos. 1 and 2 filed a Joint Written Statement. Their main plea was that they never executed any agreement to sell the land. Only Defendant No. 1, the son executed the agreement and only received the entire amount of consideration money against a receipt dated 1-2-83. They also denied that possession of the land was also delivered to the plaintiff. It was admitted by them that as the son executed an agreement his share of land of 5 Bighas was sold. It is, their further case that though Defendant No. 1 agreed to sell the entire land, the Defendant No. 2 never agreed to the sale of this land and accordingly the western part of the land measuring 6 Bighas was sold to the plaintiff at a nominal/reduced price of Rupees Twenty Thousand only on 2-6-83 and the balance amount of Rupees Eightyone Thousand Five Hundred one was returned to the plaintiff earlier on 1-6-83 after obtaining a receipt thereof. The sale of half of the land was at a price which is 40% of the agreed price and this was done as because the plaintiffs agreed to waive their demands for the balance of the land. The plaintiffs forcibly entered into the land and dispossessed the defendants and as such the necessity to file the proceeding under Section 144, Cr. P. C. as well as under Section 145, Cr. P. C.

4. The following issues were framed :-

1. Whether the suit is maintainable?

2. Whether there is cause of action?

3. Not necessary.

4. Whether the defendants returned the balance of Rupees Eightyone Thousand Five Hundred One to the plaintiffs.

5. Whether the plaintiffs are entitled to a decree as prayed for.

6. The learned Judge in deciding Issue No. 4 found t