IMPORTANT POINT
Agreement to Sell--It can be specifically, enforced against the co-sharers who are not parties to the agreement.
Agreement to sell-Co-sharer-Any alienation so made by a co-sharer is always subject to the partition and rights of other co­sharers.

1. This Regular Second Appeal was decided vide judgment and decree dated 5-4-2001 passed by this Court. The aforesaid judgment, however, came to be set aside by the Hon ble Supreme Court vide its order dated 16-1-2004 passed in Civil Appeal No. 405 of 2004 on the ground that no substantial question of law has been framed as mandated by Section 100 of the Code of Civil Procedure, 1908 (as amended by Act No. 104 of 1976) CPC. Case was accordingly remanded to this Court to decide afresh, after framing substantial question of law.

2. On consideration of the judgments of the Courts below and other material on record and with the assistance of learned counsel for the parties, I am of the opinion that following substantial question of law is involved in the present appeal:-

"Whether agreement to sell can be specifically enforced against the co-sharers (respondent Nos. 2 and 3) who are not parties to the agreement?"

3. I have heard the learned counsel for the parties on the above framed substantial question of law.

4. It may be useful to notice relevant facts emerging from the record. Respondent Nos.1 to 3 herein were the co-sharers of land measuring 88 kanals and 5 marlas. Respondent No. 1 was in possession of the land measuring 16 kanals comprised in Killa No. 111/15 (8-0) and 111/16 (8-0) as recorded in the Jamabandi for the years 1972-73. He had mortgaged the same in favour of Ram Kalan son of Sukh Ram, father of the appellants for a sum of Rs. 5,000/- on 18-6-1968 vide mortgage deed Ex. PW 9/A. He had created additional mortgage on the aforesaid land on 20-6-1972 against a sum of Rs. 3,000/-. While the mortgage was in force, respondent No.1 entered into an agreement to sell (Ex. P1) in respect of the mortgaged land with the appellants for a sum of Rs. 12,000/-. At the time of entering into an agreement to sell, respondent No.1 received Rs. 1000/- as earnest money and agreed to execute the sale deed by 25-6-1974. It was also agreed to adjust the mortgage money received by him from the deceased-father of the appellants i.e. Rs. 5000/- + Rs. 3000/- received from the appellants and the balance amount of Rs. 3000 was agreed to be paid at the time of the execution of the sale deed. The agreement to sell further contained stipulation that the vendor will pay Rs. 3000/- over and above Rs. 9,000/- paid /adjusted in the event he is unable to execute the sale deed. Respondent No.1, instead of executing the sale deed in favour of the appellants sold the land measuring 16 kanals, subject-matter of agreement to sell and other land along with respondent Nos. 2 and 3 to respondent Nos. 4 to 10, by two sale deeds. Vide a sale deed dated 4-6-1974, land measuring 47 kanals and 6 marlas out of 88 kanals and 9 marlas was sold in favour of respondent Nos.6 to 10 whereas vide another sale deed dated 6-6-1974 land measuring 24 kanals was sold to respondent Nos. 4 and 5. After the expiry of time for execution of the sale deed as stipulated in the agreement to sell dated 7-1-1974, appellants filed suit seeking specific performance of agreement in respect of land measuring 16 kanals. The suit was instituted against respondent Nos.1 to 3, vendors and respondent Nos.4 to 10, the vendees of the land.

5. The suit was resisted by the defendants-respondents on variety of grounds. Respondent No.1 denied the execution of the agreement to sell whereas respondent Nos.2 and 3 chose not to contest. Respondent Nos.4 to 10 claimed themselves to be the bona fide purchasers of the suit land and disputed the right of the appellants to seek specific performance. The trial Court framed as many as 17 issues. After the conclusion of the trial, the suit filed by the appellants was decreed with costs and a direction was issued to defendant Nos.1 and 4 to 10. Defendant No.1 was asked to execute and get the sale deed registered in respect to the suit land in favour of the appellants-plaintiffs. A further direction was issued to defendant Nos. 4 to 10 to join defendant No.