Hon'ble KOTHARI, J. — This first appeal has been filed by the plaintiff Dhara Singh against the judgment and decree of the learned trial Court dismissing his suit for specific performance on 16.12.2000.

2. The plaintiff had filed a civil suit No. 30/1991 against the three defendant - brothers Fateh Singh, Chhabek Singh and Hardeep Singh in respect of agreement to sell 9 bighas of land agreements being dated 9.2.1985 and 15.12.1985 for sale of total 9 bighas of land situated at 16 GB Tehsil Sri Vijaynagar, Dist. Sri Ganganagar for consideration of Rs. 74,250/- mentioned in the agreement dtd. 9.2.1985 against which the plaintiff paid a sum of Rs. 25,000/- at the time of agreement and some amount later and a total sum of Rs. 66,450/- was paid to the defendants.

3. The suit was contested by the defendants except one of the brothers Chhabek Singh who filed written statement in favour of the plaintiff.

4. That the trial Court has framed as many as 12 issues and while deciding all other issues in favour of the plaintiff including the fact that the plaintiff was put in physical possession at the time of said agreement dtd. 9.2.1985 in respect of said 9 bighas of land and issues relating to readiness and willingness of the plaintiff, existence of agreement etc. issues No. 7 and 8 were however decided against the plaintiff and therefore, the suit was ultimately dismissed by the learned trial Court and the specific 'performance was refused, however the plaintiff was awarded double the sum paid as compensation.

5. The Issues No. 7 and 8 are as follows:

"7. Whether the plaintiff is entitled to specific performance under the agreement to sell dated 9.2.1985 in his favour and to get the registered sale-deed executed in his favour or his nominee and got the same registered?

8. Whether the land in question is in joint tenancy rights of the defendants and therefore, cannot be sold in pursuance of the said agreement and whether the suit is maintainable or not?"

6. The learned trial Court while deciding issue No. 8 found that the said land situated at Chak 16 GB was recorded in Revenue record in the joint name in Jamabandi Ex. A/1 and 3/4 share belonged to defendants Hardeep Singh, Fateh Singh and Chhabek Siongh, sons of Amar Singh, whereas 1/4th share belongs to Paramjeet Singh and Ranjeet Singh sons of Karam Singh and since there was no partition between these persons in respect of said land, 3 defendants in the present suit could not sell their 3/4th share to the extent of 9 bighas of land and therefore, the specific performance of the agreement could not be decreed in favour of the plaintiff. Issue for about giving double of the amount as compensation to the plaintiff was decided in favour of the plaintiff. Therefore, while dismissing the suit for specific performance, the learned trial Court awarded compensation in favour of the plaintiff to the extent of Rs. 1,32,900/- with 12% interest at double amount of Rs. 66,450/- paid by the plaintiff to the defendants under the said agreement to sell.

7. Being aggrieved by the said decree, the plaintiff has approached this Court by way of present second appeal under Section 96 of C.P.C. No cross objections have been filed on behalf of the defendants.

8. Mr. H.S. Sandu, learned counsel appearing for the plaintiff-appellant submitted that though partition had taken place in respect of said land and Paramjeet Singh and Ranjeet Singh sons of Karam Singh had also sold their 1/4 share with specific killa No. in favour of third party and therefore the present 3 defendant sons of Amar Singh could also sell their share of 9 bighas and as agreement in question was entered into with the plaintiff specific killa number wise and there was no impediment in awarding specific performance under the said agreement dtd. 9.2.1985 in favour of the plaintiff. The learned trial Court has grossly erred in not giving the said specific performance though the fact is that the appellant - plaintiff was put in physical possession