S. N. Kapoor, J. ( 1 ) THIS FAO is directed against an order dated 28th February 1996 passed by learned Single Judge rejecting IA No. 774/95 for injunction restraining the respondent/ defendant from creating third party interest in respect of one-sixth share in the property bearing No. R-7b Green Park Extn. , New Delhi, which was agreed to be sold, and from forcibly dispossessing the plaintiff/appellant from the first and second floor and the incidental areas attached to the suit property in suit No. 1749/95 filed for specific performance and injunction. ( 2 ) THE learned Single Judge took the view that alleged Receipt-cum-Agreement was prima facie a forged document as nobody would sell property worth Rs. two crores for a paltry sum of Rs. 6,20,000. 00 ; the appellant was acting in collusion with brother of respondent/defendant; and the appellant/plaintiff had come forward with a false case. The learned Single Judge has rejected the application and also imposed a cost of Rs. 10,000. 00 to be paid to Legal Aid and Advice Board, Delhi. ( 3 ) THE appellant/plaintiff, feeling aggrieved by the aforesaid order has filed this appeal. ( 4 ) ADMITTED facts are as under: THE above-mentioned property was jointly purchased by Shri Hakim Rai and Smt. Kishan Devi both having equal share. Shri Hakim Rai and Smt. Kishan Devi had two sons - Jagdish Chand Jhamb and Harish Chand Jhamb-respondent/defendant. Shri Hakim Rai expired on 18th August 1972 and left a Registered Will bequeathing his one/half undivided share in the property in question in favour of his wife Smt. Kishan Devi and two sons namely Shri Jagdish Chand Jhamb and Shri Harish Chand Jhamb. Thus, Smt. Kishan Devi, Shri jagdish Chand Jhamb and Shri Harish Chand Jhamb became owner to the extent of four/sixth, one/sixth and one/sixth shares respectively. It is not the case of any of the parties that there was any partition in metes and bounds between Shri Jagdish Chand Jhamb, predecessor in interest of the plaintiff and Shri Harish Chand Jhamb. It is again an admitted fact that the suit for Probate No. 347/88 filed on the basis of the Will, allegedly executed in favour of the defendant and his wife, was pending. It is again an admitted fact that the suit for Probate No. 347/88 filed on the basis of the Will, allegedly executed in favour of the defendant and his wife, was pending. The suit No. 2407/92 was filed for declaration that Shri Jagdish Chand Jhamb was the owner of the five/sixth share in the disputed property on the basis of Relinquishment Deed allegedly executed by Smt. Kishan Devi. Thus there was and is dispute in between the two brothers regarding the extent of their shares in the property in suit. ( 5 ) ACCORDING to the case of the plaintiff/appellant, Smt. Kishan Devi during her lifetime relinquished her four/sixth undivided share under a registered document dated 31st May 1978 in favour of her son Shri Jagdish Chand Jhamb. Thus Shri Jagdish Chand Jhamb became owner of five/sixth share while remaining one/sixth share continued to be owned by Shri Harish Chand Jhamb. The said property was so mutated in the names of the defendant Shri Jagdish Chand Jhamb, who sold his five/sixth share in the property in question to M/s Ghochwal Leasing Private Limited plaintiff/appellant vide two separate registered sale deeds dated 18th March 1994 and 20th April 1995. It is also claimed by the plaintiff/appellant that Shri Harish Chand Jhamb also agreed to sell his one/sixth undivided share under a receipt-cum-agreement to sell dated 19th September 1994 for a sum of Rs. 6,20,000. 00 and Rs. 50,000. 00 were paid as advance and part-payment, and the balance sale consideration was to be paid at the time of registration of the Sale Deed. However, Rs. 70,000. 00 were paid vide Pay Order No. 760518 dated 18th March 1995 as requested by the respondent/defendant. Subsequently, as was agreed to, the respondent/defendant obtained necessary mutation order in respect of his one/sixth share on 8th April 1995 in the records of Municipal Corporation of Delhi but failed to obtain necessary permission from Income-tax authorities for the purpose of executing sale deed. The defendant/respondent wanted to avoid the execution of sale deed, as market value had gone up in the meanwhile. ( 6 ) ACCORDING to the case of Shri Harish Chand Jhamb, Smt. Kishan Devi had left behind a Will dated 7th October 1985 whereby she gave her one/half share in the property in question to the respondent/defendant Shri Harish Chand Jhamb and to his wife Smt. Amrit Lata Jhamb. ( 6 ) ACCORDING to the case of Shri Harish Chand Jhamb, Smt. Kishan Devi had left behind a Will dated 7th October 1985 whereby she gave her one/half share in the property in question to the respondent/defendant Shri Harish Chand Jhamb and to his wife Smt. Amrit Lata Jhamb. In that connection, a Probate Case No. 347/88 had also been filed and the case is said to be pending in the court of District Judge, Delhi. Shri Jagdish Chand Jhamb predecessor in interest of the present plaintiff/appellant had also filed a suit for declaration No. 2407/92 praying for a decree of declaration that the property in suit belonged to him to the extent of five/sixth share on the basis of the afore-said relinquishment deed which is also said to be still pending disposal before the court. Shri Harish Chand Jhamb had also denied the receipt of Rs. 1,20,000. 00 towards the sale price as had been sought to be made out on the basis of receipt-cum- agreement to sell. He claimed that the alleged receipt was a rank forgery in order to grab his property. He repudiated the alleged relinquishment deed executed by his mother Smt. Kishan Devi in favour of Shri Jagdish Chand Jhamb. According to his case, he himself was entitled to five/sixth share. Accordingly, the sale deed executed by Shri Jagdish Chand Jhamb and the sale of his alleged five/sixth share was ab initio void and illegal. He also disputed legality of mutation to the extent of five/sixth share in the property in favour of Shri Jagidsh Chand Jhamb before the Municipal Corporation of Delhi, Hauz Khas and its impact. It was also alleged that a blatant attempt was made on the life of defendant/respondent by one of the Directors of the plaintiff/appellant company. The defendant/respondent was in exclusive possession of the property and Shri Jagdish Chand Jhamb was never in possession. ( 7 ) WE have heard both the parties at length and gone through the record. Several points of arguments have been advanced by Shri Mukul Rohtagi, learned senior counsel appearing on behalf of the appellant and Shri P. P. Malhotra, learned senior counsel appearing on behalf of the respondents. We will deal with the arguments advanced appropriately at proper stage. Several points of arguments have been advanced by Shri Mukul Rohtagi, learned senior counsel appearing on behalf of the appellant and Shri P. P. Malhotra, learned senior counsel appearing on behalf of the respondents. We will deal with the arguments advanced appropriately at proper stage. ( 8 ) IN view of the admitted position that there was dispute in between the two brothers about extent of their shares in the property in question, even if we presume that these two brothers were in exclusive occupation of certain portion it could not be said that either of these two brothers was in such an exclusive possession which could be said to be adverse to each other. The settled legal position of a co-owner in possession is that of a constructive trusee on behalf of other co-sharer who is not in possession and that largely of co-sharer would be deemed to be protected by the trustee. Thus, a person in such a possession cannot prima facie, without anything more unilaterally change the character of his possession so as to confer a better title to his assignee much less on one in favour of whom he has executed only an agreement to sell (see Karbalai Begum Vs. Mohd. Sayed and anr. AIR 1981 SC 1977 ). A co-owner has an interest in the whole property and also in every parcel of it. Once it is found that the possession of a co-owner is for and on behalf of the other-co-owner, he cannot claim injunction of this nature so as to exclude the other co-owners from exercising their right as co- owners (see AIR 1996bomaby 36prakash S. Akotkar Vs. Mansoorkha Gulabkha and ors. (Para 4-5 P. 38) (see also AIR 1966 Punjab 258 Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram ). ( 9 ) THE plaintiff/appellant could not claim any injunction against the defendant/ respondent on the ground that they had purchased five/sixth share from Shri Jagdish Chand Jhamb, for following additional reasons: A) That share of Shri Jagdish Chand Jhamb was in dispute; as such would be subject to doctrine of lis pendens. Daya Ram Nagina Ram ). ( 9 ) THE plaintiff/appellant could not claim any injunction against the defendant/ respondent on the ground that they had purchased five/sixth share from Shri Jagdish Chand Jhamb, for following additional reasons: A) That share of Shri Jagdish Chand Jhamb was in dispute; as such would be subject to doctrine of lis pendens. B) The alleged agreement to sell has been seriously denied by the defendant/respondent; and C) An agreement to sell does not create any right in the property which is intended to be sold as Section 54 of Transfer of Property Act provides that: "a contract for the sale of immoveable property is a contract that sale of such property shall take place on terms settled between the parties". "it does not, of itself, create any interest in or charge on such property". ( 10 ) SHRI Mukul Rohtagi, by his arguments tried to convince us that the impuged order was not justified but he found himself in a very helpless situation when it was pointed out to him that the plaint lacked in following material particulars; A) It 2 did not disclose as to how and when plaintiff came in possession of different portions of the premises in question; B) It did not disclose in the main portion of the plaint how the apprehension of forcible dispossession arose and in respect of what portion, except a bald statement in the para relating to cause of action. C) The site plan attached with the plaint showing one/sixth share included a passage and portion on mezzanine floor and that would go to show that nobody could go to first or second floor unless and until one passed through that portion. D) About his readiness and willingness to perform his part of the agreement, the pintiff pleaded in para 13 of the plaint as under: "13. That the plaintiff has always been ready and willing and is still ready and willing to perform its part of the contract and pay the balance sale consideration ofrs. 5 lakhs (Rupees five lakhs only) to the defendant. The plaintiff is even now willing to perform its part of the obligation under the contract. . . " IT may be mentioned that the plaintiff has nowhere pleaded that the amount of Rs. 5 lakhs was readily available with the plaintiff to make the payment. 5 lakhs (Rupees five lakhs only) to the defendant. The plaintiff is even now willing to perform its part of the obligation under the contract. . . " IT may be mentioned that the plaintiff has nowhere pleaded that the amount of Rs. 5 lakhs was readily available with the plaintiff to make the payment. In this regard, the apex court in AIR 1996 SC 117n. P. Thirugnanam Vs. R. Jagan Mohan Rao in para 5 of the judgment observed as under: "5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under S. 20 of the Specific Relief Act 1963. . . Section 16 (c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The. amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. " (Emphasis supplied) E) In para 2 of the plaint, the plaintiff claimed that the property bearing Municipal No. 7b Green Park, New Delhi, a 2-1/2 storeyed building constructed on a plot of land measuring 200 sq. yds. was jointly owned by Shri Hakim Rai and Smt. Kishan Devi in equal shares. " (Emphasis supplied) E) In para 2 of the plaint, the plaintiff claimed that the property bearing Municipal No. 7b Green Park, New Delhi, a 2-1/2 storeyed building constructed on a plot of land measuring 200 sq. yds. was jointly owned by Shri Hakim Rai and Smt. Kishan Devi in equal shares. This fact is belied by the relinquishment deed which purports to be of 31st May 1978 (at P. 19 of Part III of suit 1749/95) which reads as under: "whereas the Releasor and the respected late husband of the Releasor jointly purchased a basement and a single storey building thereon situated upon plot No. 7-B, Block No. R (Shopping Centre) measuring 200 sq. yds. . . " THE afore-said deed did not indicate that it was 2-1/2 storeyed building or any construction was raised jointly by Smt. Kishan Devi and Shri Hakim Rai after purchasing the same. FURTHER, sale deeed dated 18thmarch. l995 at P. 4 reads as under: "and whereas after acquiring the said BUILDING by said Smt. Kishan Devi and Hakim Rai jointly constructed a First floor and Second floor on the said building with their own funds and resources after getting the build- ing plan sanction from the M. C. D. and fitted all amenities such as water, electrical, sanitary connections. " THUS, the afore-said averment is inconsistent with the averments made in the relinquishment deed. F) It is not the case of the plaintiff that his predecessor in interest Jagdish Chand Jhamb had constructed the First and second floor. The defendant s plea in para 3 is as under: "the remaining part, which is not described in the alleged relinquishment deed was obviously built upon by the defendant and his wife Smt. Amrit Lata Jhamb who has been in full and peaceful occupation of the building since its construction. . . " ( 11 ) IT is further noteable that the Sale Deed executed by Shri Jagdish Chand Jhamb on 18th March 1995 did not specify the portion of the premises handed over symbolically. It just contained a recital at one place that the premises were occupied by tenants and at another place by a tenant whose name was not given. Recital about tenants in the second sale deed appeared, to be inconsistent with the report of the Local Commissioner. It just contained a recital at one place that the premises were occupied by tenants and at another place by a tenant whose name was not given. Recital about tenants in the second sale deed appeared, to be inconsistent with the report of the Local Commissioner. It was not claimed in the sale deed that either of tenants was tenant under Shri Jagdish Chand Jhamb and they were being asked to attorn in favour of the plaintiff/appellant by Shri Jagdish Chand Jhamb or they had attorned in favour of the plaintiff/apellant. If argument advanced by learned counsel for appellant was accepted that Shri Dharam Pal, a tenant on the first and second floor attorned and subsequently handed over possession to the plaintif/appellant, it would be an implied admission that there was no other tenant under predecessor-in-interest of the plaintiff/appellant. ( 12 ) FROM the above discussion coupled with report of Local Commissioner, it would appear that Shri Harish Chand Jhamb was at least in occupation of the basement, ground floor and mezzanine floor and that would be much more than one/sxth share. If in this light, one considers the observations of learned Single Judge about inadequacy of consideration, then one would find it difficult to disagree with him in view of the extent of the portion and area which was in his possession in addition to the portion in occupation of his tenants. ( 13 ) IT is an admitted fact that there is no formal agrement to sell in the form of a deed. The agreement is based on a receipt for a sum of Rs. 50,000. 00. We would not like to say that an agreement to sell could not be in the form of a receipt. However, the receipt is admittedly not written by the defendant/respondent. It was witnessed by an employee of the plaintiff/appellant and the signature on the same has been denied by the defendant. However, payment of Rs. 70,000. 00. was made by a pay order and the defendant/respondent has not been able to properly explain the receipt of Rs. 70,000. 00 though it was alleged by him that it was received in connection with some other transaction with a third person. However, payment of Rs. 70,000. 00. was made by a pay order and the defendant/respondent has not been able to properly explain the receipt of Rs. 70,000. 00 though it was alleged by him that it was received in connection with some other transaction with a third person. About the letting out of the first and second floor to a third person, the case of the defendant/respondent may appear as week as that of the plaintiff/ appellant in respect of Shri Dharam Pal. In any case, the plaintiff has to stand on his own legs and could not depend on the weaknesses of the case of the defendant/ respondent. ( 14 ) FROM the side of the plaintiff/appellant, Shri Mukul Rohtagi also argued about mutation which had allegedly taken place at the behest of defendant/respondent claiming only one/sixth share. In this regard, it appears that the conduct of the predecessor in interest of the plaintiff/appellant Shri Jagdish chand Jhamb as-well as of the plaintiff appeared to be inconsistent with the pleas taken by the plaintiff/appellant. If Shri Harish Chand Jhamb had reconciled to accept only one/sixth share in the property after the alleged agreement to sell, then the plaintiff would have also insisted and Shri Harish Chand Jhamb should have agreed to withdraw the probate proceedings and might have agreed to suffer a consent decree in the suit filed by Shri Jagdish Chand Jhamb. It is further notable that the mutation application was moved by Shri Jagdish Chand Jhamb on 24th April 1995. While on 18th April 1995, he had already sold one/half of five/sixth share and another half of five/sixth on 20th April 1995. (See P. 46 of the Part III of the trial court record ). Why the plaintiff himself did not move an application on the basis of the sale deed after he had purchased the property? Why an indemnity bond was prepared and was filed by Shri jagdish Chand Jhamb? And, why did he pay entire amount of municipal taxes on 7th April 1995? These are some of the questions answers to which indicate otherwise. Shri Harish Chand Jhamb allegedly moved an application on 31st May 1995. The three documents allegedly filed by him in that connection had been denied by Shri Harish Chand Jhamb. And, why did he pay entire amount of municipal taxes on 7th April 1995? These are some of the questions answers to which indicate otherwise. Shri Harish Chand Jhamb allegedly moved an application on 31st May 1995. The three documents allegedly filed by him in that connection had been denied by Shri Harish Chand Jhamb. It is notable that the letter sent by Assistant Assessor and Collector addressed to both the brothers is dated 28th April 1995. As such, one finds it difficult to say at this stage that defendant/ respondent had moved for the mutation and the mutation had not taken place at the behest of Shri Jagdish Chand Jhamb after he had sold aportion of the property. ( 15 ) IF one goes by the application made in the CCP 33/96 then one may start thinking that the mischief started after the injunction was granted by the learned single judge on 31st July 1995. ( 16 ) IN view of the situation mentioned above, it will be difficult to say that order passed by learned single judge was not justified and the plaintiff/appellant had got prima facie case to seek injunction against Shri Harish Chand Jhamb even if one accepts that he had purchased five/sixth share from Shri Jagdish Chand Jhamb. It also does not appear that the balance of convenience shall be in favour of the plaintiff/appellant in the afore-said circumstances and the same is true about plea of irreparable loss specially in view of the pending litigation about the extent of shares of Shri Harsih Chand Jhamb as well as Shri Jagdish Chand Jhamb, predecessor in interest of the plaintiff/appellant. It may further be mentioned that the plain. PL 12" tiff has himself claimed damages to the tune of Rs. 10 lakhs in para (e) of the relief clause in the alternative. The present one is a case where the plaintiff/appellant can be compensated by award of damages even if he fails in securing specific performance. ( 17 ) IN addition to the Shove, we cannot be oblivious to the observations made by the apex court in Shah Babulal Khimji Vs. Jayaben D. kania and anrs. The present one is a case where the plaintiff/appellant can be compensated by award of damages even if he fails in securing specific performance. ( 17 ) IN addition to the Shove, we cannot be oblivious to the observations made by the apex court in Shah Babulal Khimji Vs. Jayaben D. kania and anrs. AIR 1981 SC 1786 to the effect that in these matters, a Division Bench of the court "must give sufficient allowance to trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice. " ( 18 ) IN view of the above, it is our considered view that we must not interfere in the order passed by learned single judge. However, it is made clear that any observation made either by the learned single judge or by this court shall not prejudice the trial or the final decision on merits in the suit. This FAO is accordingly dismissed. There will be no order as to costs.