A purchaser of an undivided interest in joint property is not entitled to possession but can sue for partition. The share of the defendant must be quantifiable and identifiable for an injunction to be enforceable.

JUDGMENT :

1. Defendants no.1, 2 and 3 are the co-owners of the agricultural land admeasuring about 100 acres, bearing 44 different survey numbers, particulars of which are adequately described in para-1 of the plaint (hereinafter called “the said property”). Defendant no.1 holds 1/3rd undivided share in the, said property. Thus, his share therein is approximately 33.33 acres. Appellant-plaintiff, claims and asserts that, defendant no.1, vide agreement dated 21st December, 2016 (“suit agreement” for short) agreed to sell 10 acres of area, out of his 1/3rd share in the said property for total consideration of Rs.1,74,50,000/- (Rs. One Crore Seventy Four Lakhs Fifty Thousand) and although he paid entire consideration, defendant no.1 declined to execute the sale-deed, which was to be executed within six months from the date of execution of the suit agreement. Plaintiff pleaded, at the relevant time, defendant no.2 was also going to execute similar agreement in respect of 10 acres out of his undivided share in the said land, but at the last minute, he backed out. In para-9, plaintiff pleaded, although he was, ready and willing, to perform his part of the suit agreement, defendant was avoiding the execution of sale-deed and at the same time, defendant no.1 alongwith defendants no.2 and 3 (co-owners) were/are likely to sell the said property or part of it to, other persons under the brand name “Saaras Smart City” through an entity i.e. defendant no.4. Thus, plaintiff called upon defendant no.1 vide notice dated 26th April, 2018 to perform the suit agreement and execute the sale-deed. Whereafter in June, 2018, plaintiff instituted the civil suit seeking decree of specifc performance of the suit agreement dated 21st December, 2018 and possession of land admeasuring 10 acres out of 1/3rd share of defendant no.1 in the said land. The land admeasuring 10 acres, shall hereinafter be called as “the suit land”. Pending suit, plaintiff sought an order, to restrain all the defendants from alienating the said property (i.e 100 acres land).

However, pending decision, in application for temporary injunction, plaintiff vide application Exhibit-38, restricted his prayer to 1/3rd undivided share of the defendant no.1. Anyway, the learned trial Judge declined the injunction vide order dated 10th December, 2018. That order is challenged in this Appeal under Order 43 Rule 1(r), read with Section 104 of the Civil Procedure Code.

2. Heard learned Counsel for the parties.

3. Before adverting to the arguments of respective Counsel, let me state in brief, the defence of the defendant no.1. The defendant no.1, in written statement, contended that, he jointly with defendants no. 2 and 3, has right, title and interest in the said lands, situated at Village-Pimpoli, District-Pune. He and co-owners, were and are planning to develop the said land, subject to necessary permissions and approvals. That the partner of plaintiff, Mr. Pinto expressed his desire to check, whether, he can support the planned efforts of the defendants no.1 and 2 in development of the said land. The defendant no.1, would contend that, as per discussion between himself, defendant no.2 and Mr. Pinto (partner of plaintiff), that in order to commence the process, Mr. Pinto would organize liquidity of Rs.6,00,00,000 (Rupees Six Crores) in a planned manner, in agreed timeline and the parties jointly would then discuss to formalize the plan about the entities, to undertake the development work and related activities like financer, architect, contractor and others. Therefore, it is the defence of defendant no.1 that, sum of Rs.1,74,50,000/- was received by him in terms of the understanding, between the partner of the plaintiff and the defendants who was planning to develop the said land. To put it differently, the defendant no.1 denied that, he had agreed to sell his undivided interest to the extent of Rs.10 crores out of his 1/3rd share in the said lands.

6. Thus, the admitted facts are : the said pr