{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.52 OF 2010 Ramchandra Bhiva Hingane & Another APPELLANTS VERSUS Alka Sampat Dhawale & others RESPONDENTS ....... Mr. N.V.Gaware, Advocate for appellants Ms. Anjali Bajpai-Dube, Advocate for respondents ....... [CORAM : A.V.POTDAR, J.] DATE: 7th April 2010 PER COURT: 1. By the present appeal from order, the original defendants have assailed the order dated 01.02.2010 passed below Exhibit-14 in Special Civil Suit No.54/2008 by Civil Judge, Senior Division, Shrigonda. 2. As caveat was filed by the respondents, the respondents are represented by learned counsel and by consent, the present appeal from order is taken up for final hearing at the stage of admission itself. 3. Heard learned counsel for the appellants followed by learned counsel for the respondents. Also perused the pleadings of the parties before the lower court as well as the impugned order. {2} 4. On perusal of the plaint in Special Civil Suit No. 54/2008 as well as application Exhibit-14, it is clear that the suit is filed by the respondents-plaintiffs for specific performance of contract. In the said suit an application Exhibit-14 was moved seeking interim injunction against the defendants, present appellants, not to disturb possession of the plaintiffs- respondents, till disposal of the suit. The said application came to be allowed vide the impugned order. 5. Surprisingly, though it is a suit for specific performance, yet on perusal of the plaint as well as the application Exhibit-14, it is clear that the pleadings are silent on the point as to when the agreement of sale was executed, what are the terms of the agreement of sale and when the final conveyance of sale to be executed under the provisions of Order VI and VII of the Civil Procedure Code. When a suit is filed for specific performance, pleadings must be specific. However, in the present case, pleadings are totally silent on this aspect and it appears from the impugned order that the learned trial court has not considered this aspect at all. 6. Second aspect which requires serious consideration is that this is a suit for specific performance of contract in which discretionary relief can be granted by the court of equity and as this is a specific performance of immovable property, which is clear {3} from the description of the property given in the plaint Para 2, then as per Order 7 Rule 3, the description, of the property for which the suit is filed, must be specific. On reading para 2 of the plaint, as well as para 1 of the application Exhibit-14 where description of the property is given, though it is stated that 1/3rd share of the deceased in property bearing No.2172 from village Shrigonda, yet boundaries of the 1/3rd share of the deceased are not mentioned. 7. Last important aspect, which needs consideration, is that the possession is claimed by the respondents – plaintiffs on the basis of unregistered agreement of sale. As per the recent pronouncement of this Court, if the agreement is coupled with delivery of possession, then the agreement must be a registered one. All these aspects are not considered by the learned trial court. In this light, considered the submissions of the learned counsel for the parties. Learned trial court, in para 7, 8, 10 and 12, has observed that though the plaint and application Exhibit-14 are silent in respect of specification of the agreement, of which specific performance is sought for, yet as sufficient consideration is parted with by the plaintiffs-respondents, the plaintiffs-respondents are entitled for the discretionary equitable relief of temporary injunction. At the same time, it is specifically observed in para 13 by the learned trial court that so far as revenue record is concerned, the same shows possession of the defendants – appellants. Inspite of this position, equitable relief of temporary {4} injunction is granted, which is against the settled norms as to when the injunction to be granted and when to be refused. 8. Apart from it, the law in respect of purchase of undivided share from joint Hindu family is settled. In case the suit for specific performance is allowed, then under the provisions of the Partition Act, the person in whose favour the decree of specific performance is granted has to pray for partition of his share in the joint property of the person from whom rights are acquired. 9. In this connection, learned counsel for the appellants placed reliance on the judgment reported in 2009 (6) ALL MR 983 in the matter of “Gajara Vishnu Gosavi V/s Prakash Nanasaheb Kamble”. In the said judgment it is observed in para No.9 to 11, as follows - In Kartar Singh vs. Harjinder Singh, AIR 1990 SC 854, this Court held that where the shares are separable and a party enters into an agreement even for sale of share belonging to other co-sharer, a suit for specific performance was maintainable at least for the share of the executor of the agreement, if not for the share of other co-sharers. It was further observed: "As regards the difficulty pointed out by the High Court, namely, that the decree of specific performance cannot be granted since the property will have to be partitioned, we are of the view that this is not a legal difficulty. Whenever a share in the property is sold, the vendee has a right to apply for the partition of the property and get the share demarcated." {5} In recent judgment in Ramdas vs. Sitabai & Ors. JT 2009 (8) SC 224 to which one of us (Dr. B.S. Chauhan J.) was a party placing reliance upon two earlier judgments of this Court in M.V.S. Manikayala Rao vs. M.Narasimhaswami & Ors. AIR 1966 SC 470; and Sidheshwar Mukherjee vs.Bhubneshwar Prasad Narain Singh & Ors, AIR 1953 SC 487, this Court came to the conclusion that a purchaser of a co-parcener's undivided interest in the joint family property is not entitled to possession of what he had purchased. He has a right only to sue for partition of the property and ask for allotment of his share in the suit property. 10. There is another aspect of the matter. An agricultural land belonging to the coparceners/co- sharers may be in their joint possession. The sale of undivided share by one co-sharer may be unlawful/illegal as various statutes put an embargo on fragmentation of holdings below the prescribed extent. 11. Thus, in view of the above, the law emerges to the effect that in a given case an undivided share of a co- parcener can be a subject matter of sale/transfer, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds, either by the decree of a Court in a partition suit, or by settlement among the co-sharers. 10. Reliance is also placed by the learned counsel for the appellants on the judgment reported in (2006) 5 MLJ 218 in the matter of “Seema Arshad Zaheer V/s Municipal Corporation of Gr.Mumbai”. Para 32 of the said judgment reads thus - “32. Where the lower Court acts arbitrarily, capriciously or perversely in exercise of its discretion, the appellate Court will interfere. Exercise of discretion by granting a temporary injunction when there is “no {6} material”, or refusing to grant a temporary injunction by ignoring the relevant documents produced, are instances of action which are termed as arbitrary, capricious or perverse. When we refer to acting on “no material” (similar to “no evidence”), we refer not only to cases where there is total dearth of material, but also to cases where there is no relevant material or where the material, taken as a whole, is not reasonably capable of supporting the exercise of discretion. In this case, there was “no material” to make out a prima facie case and, therefore, the High Court in its appellate jurisdiction was justified in interfering in the matter and vacating the temporary injunction granted by the trial Court.” 11. Considering the ratio laid down in the above two judgments, it is clear that if the respondents succeed in the main suit, then the relief to be granted in their favour, after they pray for decree of partition. It appears that the said relief, which is to be granted at the final stage of the suit, is granted by the trial court at the initial stage. The observations of the trial court, while allowing the application Exhibit-14, are perverse and hence, require to be quashed and set aside. 12. Accordingly, the Appeal From Order succeeds. The impugned order passed below Exhibit-14 on 01.02.2010 in Special Civil Suit No.54/2008 by the Civil Judge, Senior Division, Shrigonda, is hereby quashed and set aside. [A.V.POTDAR, J.] drp/B10/ao52-10 {7} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.4807 OF 2010 IN APPEAL FROM ORDER NO.52 OF 2010 Ramchandra Bhiva Hingane & Another APPLICANTS VERSUS Alka Sampat Dhawale & others RESPONDENTS ....... Mr. N.V.Gaware, Advocate for applicants Ms. Anjali Bajpai-Dube, Advocate for respondents ....... [CORAM : A.V.POTDAR, J.] DATE: 7th April 2010 PER COURT: 1. As the appeal from order No.52/2010, itself is allowed, the present civil application does not survive and hence disposed of accordingly. [A.V.POTDAR, J.] drp/B10/ao52-10