MODI, J.—This is an appeal by plaintiff Deenanath against the judgment and decree of the Civil Judge, Udaipur, dated 30-11-72 dismissing the plaintiffs suit for specific performance of an agreement to sell certain agricultural land.

2. On 22-2-64 defendanc-respondent Chunnilal entered into an agreement with the plaintiff to sell his khatedari rights in 11 bighas 6 bighas of land of Khata No. 223 situated at village Ayad, tehsil Girwa district Udaipur for Rs. 13,000. In pursuance of the said agreement, the defendant.respondent received Rs. 1000 from the plaintiff as part payment of the sale-price and executed the agreement Ex.A/1 in favour of the plaintiff. It was agreed between the parties that the plaintiff shall pay the balance of the sale-price at the time of the registration of the sale-deed. The plaintiff averred in the plaint that he was ready and willing to perform his part of the contract but the defendant on some pretext or other avoided to execute the sale-deed. The plaintiff therefore served a notice on 29-12-65 calling upon the defendant to receive the balance of the sale-price and execute the sale-deed and get it registered in his favour. The defendant gave a false reply to the notice on 14-1-66 and declined to execute the sale-deed in accordance with the terms of the agreement Ex.A/1. The plaintiff thereupon instituted the present suit against the defendant on 5-12-67 for specific performance of the agreement to sell dated 22-2-64 and, in the alternative, claimed Rs. 12,000 as damages for breach of the contract.

3. In his written statement, the defendant admitted having executed the agreement Ex.A/1 dated 22-2 64 for sale of the land. He also admitted receipt of Rs. 1000 against the sale-price from the plaintiff in pursuance of the said agreement. He, however, pleaded that at the time of entering into the agreement it was orally agreed between the parties that no sale-deed will be executed in favour of the plaintiff if his (defendants) two adult sons and his wife who had shares in the property did not give their consent to sell the land. Since his two sons and wife refused to agree to sell the land, the agreement to sell could not be enforced against him. It was also pleaded that the land in dispute was ancestral property and the defendants share in it was one-fourth only and the remaining 3/4th belonged to his sons and his wife. The defendant also pointed out that a suit for partition had been instituted by one of his sons and a decree for partition was also passed therein declaring his share in the land to be one-fourth only. The defendant also took the plea that the suit was barred by time and in any case the plaintiff was not entitled to the relief of specific performance as he filed the suit after a great delay. On the pleadings of the parties, the learned Civil Judge framed the following issues:

"1. Whether the defendant had only l/4th share in the suit property?

2. (a) Whether at the time of the agreement, the defendant informed the plaintiff that along with the defendant his two sons and wife who had also share in the property and if they do not agree to the transaction, he would not be liable to pet form the agreement and if so, what is its effect ?

(b) Whether such oral evidence is barred by sec 92 of the Evidence Act,

3. Whether the defendant informed in March/April 1964 to the plaintiff that he would not be m a position to perform the agreement? If so, what is its effect and the suit is time barred.

4. What is the effect of suit for partition in revenue court and the alleged decree against defendant on the present suit?

5. Whether there is delay in the filing of the suit? If so, what is its effect?

6. Relief."

The learned Civil Judge on consideration of the evidence led by the parties found that the suit land was ancestral property and the defendant was holding it on behalf of the joint family consisting of himself, his two sons and his wife. He further held that the defendants interest in the propei ty was one

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