High Court

Legal Reasoning

943-wp-3432.odt-1-IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD943 WRIT PETITION NO. 3432 OF 2024Shri Ganeshlal s/o Harinarayan Chandak,Age: 84 years, Occu- Agri and Business, Through Power of Attorney Holder, Shri Nandkishor s/o Ganeshlal Chandak Age-46 years, Occu-Agri and Business, R/o Murud, Tq. & Dist. Latur....PetitionerVERSUS1. Shri Parshwanath s/o Shankarrao Bhajibhakre,Age-51 years, Occu- Agri and Business R/o-Market Yard Road, Bhajibhakre Nagar, Murud, Tq. & Dist. Latur,2. Shri. Siddharth s/o Shankarrao Bhajibhakre,Age-43 years, Occu- Agri and BusinessR/o-Market Yard Road, Bhajibhakre Nagar,Murud, Tq. & Dist. Latur.3. Shri. Snehit s/o Babulal Baheti,Age-34 years, Occu- Agri and Business, R/o Paru Nagar, Murud, Tq. & Dist. Latur.4. Saraswati w/o Parshwanath BhajibhakreAge-44 years, Occu- Household, R/o- Market Yard Road, Bhajibhakre Nagar, Murud. Tq. & Dist. Latur.5. Parshavdeep s/o Parshwanath Bhajibhakre,Age-33 years, Occu- Service, R/o- Market Yard Road, Bhajibhakre Nagar, Murud, Tq. & Dist. Latur.6. Parshavkiran s/o Parshwanath Bhajibhakre,Age-28 years, Occu-Business, R/o- Market Yard Road, Bhajibhakre Nagar, Murud, Tq. & Dist. Latur.7. Priya w/o Siddharth Bhajibhakre,Age-38 years, Occu- Household, Narwade 943-wp-3432.odt-2-R/o- Market Yard Road, Bhajibhakre Nagar, Murud, Tq. & Dist. Latur.8. Shantanu s/o Siddharth Bhajibhakre,Age 22 years, Occu- Education, R/o. Market Yard Road, Bhajibhakre NagarMurud, Tq. & Dist. Latur ...Respondents...Mr.Rameshwar F. TotalA a/w. Mr. Swapnil V. Lohiya i/b. Mr.ShrigopaljiV. Kabra, Advocate for the Petitioner.Mr. P. P. More, Advocate for Respondent No.3... CORAM :ROHIT W. JOSHI, J. DATED :17th JULY 2025ORAL JDUGEMENT :- 1.Present petitioner is the original plaintiff who has filed a suitfor specific performance of contract in Special Civil Suit No.224 of2022. 2.It is the case of the petitioner that he had entered into anagreement of sale with respect to the suit property with defendantnos.1 and 2 on 01.06.2018. The plaintiffs contends that disregardingthe agreement entered into between the parties the defendant nos.1and 2 sold the suit property to the defendant no.3 vide sale deeddated 08.03.2022. The plaintiff claims to be in physical possession ofthe property on the basis of the agreement of sale. The plaintiff hasprayed for cancellation of sale deed dated 08.03.2022, specificperformance of contract and for perpetual injunction restraining thedefendants from disturbing his physical possession over the suitNarwade 943-wp-3432.odt-3-property. 3.Defendant Nos.1 and 2 entered appearance in the matter onbeing served with the suit summons and denied the agreement. It istheir case that the plaintiff had advanced certain amount to them andhad obtained their signatures on blank stamp papers. It is contendedthat it is in view of the aforesaid, for a period of around four years theplaintiff was completely silent after execution of the allegedagreement of sale. The defendant nos. 1 and 2 denied that plaintiffwas in physical possession of the suit property. 4.The plaintiff also filed an application for grant of temporaryinjunction in the said suit. The learned Trial Court has allowed thesaid application for grant of temporary injunction vide order dated23.11.2022. The learned Trial Court has referred to the agreementwherein there is averment regarding delivery of possession of the suitproperty by defendant nos.1 and 2 to the plaintiff. Apart from this,the learned Trial Court has taken into consideration that there is awater pipeline in the Well situated in the suit property in which thereis a pipeline which according to the Trial Court is installed by theplaintiff. On this basis, the learned Trial Court has held that theplaintiff has made out a prima facie case as regards his physicalpossession over the suit property. Narwade 943-wp-3432.odt-4-5.This order dated 10.08.2023 allowing the application for grantof temporary injunction came to be assailed by respondent no.3, thepurchaser of the suit property, by filing an appeal being MiscellaneousCivil Appeal No.03 of 2023. The said appeal is allowed by the learnedPrincipal District Judge, Latur vide judgment dated 12.03.2024. Thelearned Principal District Judge has held that the alleged agreement isan unregistered document and therefore plaintiff cannot take shelterunder Section 53-A of the Transfer of Property Act, 1882. Apart fromthis, the learned first Appellate Court has disbelieved the case of theplaintiff in view of long silence on his part for a period of around fouryears from the date of execution of the agreement of sale. The learnedAppellate Court has also taken into consideration entries in 7/12extracts showing possession of the defendant nos.1 and 2, vendors,and thereafter defendant no.3-purchaser. The Appellate Court hasthus allowed the appeal by reversing the order of temporaryinjunction passed by the learned Trial Court. This judgment and orderdated 12.03.2024 is impugned by the original plaintiff in the presentpetition.6.The contention of the learned Advocate for the petitioner is thatthe learned Appellate Court has erred in giving undue importance tothe fact that the agreement is not a registered document. It iscontended that the observations of the learned Appellate Court withNarwade 943-wp-3432.odt-5-respect to registration of the document are completely irrelevant andare also contrary to the settled legal position with respect to need forregistration of an agreement of sale. As regards the physicalpossession, the learned counsel contends that the findings by thelearned Trial Court with respect to pipeline ought not to have beendisturbed by the learned First Appellate Court.7.Per contra, the learned Counsel for respondent no.3-purchasercontends that the learned First Appellate Court has rightly dealt withthe matter having regard to the fact that there was silence on the partof the plaintiff for a period of around four years, since the date ofexecution of agreement of sale. He contends that the entries inrevenue records which are prima facie proof of possession werealways in the names of vendors-defendant nos.1 and 2 thereafter inthe name of purchaser-defendant no.3. The learned Advocatetherefore states that the petition is devoid of any substance andshould be dismissed as such.8.Having heard the rival submissions as aforesaid, this Court is offirm opinion that the findings by the learned First Appellate Courtwith respect to the registration of document are legally unsustainable.In view of the proviso to Section 49 of the Registration Act, 1908 anunregistered agreement of sale is admissible in evidence in a suit forspecific performance of contract. As regards Section 53-A, it is trueNarwade 943-wp-3432.odt-6-that after 2001 amendment to Registration Act, 1908 registration ofagreement of sale coupled with possession is mandatory in order toseek protection under Section 53-A of the Transfer of Property Act,1882. However, protection under Section 53-A and protection ofpossession by way of injunction under Specific Relief Act, 1963 aretwo different aspects. Injunction against forcible dispossession ascovered by the provisions of the Specific Relief Act, 1963 for relief ofperpetual injunction and by Order 39 of Code of Civil Procedure fortemporary injunction. The said injunction operates only againstdispossession without due process of law. However, Section 53-A isranked on a higher pedestal. A person who is able to establish theingredients of Section 53-A of Transfer of Property Act, 1882, cansuccessfully oppose a suit for possession also on the basis of physicalpossession under the said provision. Thus the legal position whichemanates is that even if an agreement of sale coupled with possessionis not registered, the person in possession can claim a decree forperpetual injunction against forcible dispossession under the SpecificRelief Act, 1963 as also temporary injunction under the Code of CivilProcedure. The only embargo is that he cannot claim protection ofpossession under Section 53-A of the Transfer of Property Act, 1882.The findings of the learned First Appellate Court are clearly contraryto law and are liable to be discarded.Narwade 943-wp-3432.odt-7-9.However, that is not the end of the matter. What is required tobe seen is, prima facie, who is in possession of the suit property. Itmust also be borne in mind that this Court cannot decide the matteras a Court of first instance or a Court of Appeal. This Court is onlysupposed to examine as to whether the learned Courts have appliedthe parameters regulating grant of temporary injunction properly andfurther if the findings recorded can be said to be perverse.10.The learned Trial Court has granted order of temporaryinjunction relying on the agreement in which there is an avermentregarding delivery of possession. There is a Spot Panchanamaconducted which shows alleged possession of the plaintiffs over thesuit property which is discarded by the learned Trial Court on theground that the same was conducted without notice to defendantNos.1 and 2. The learned Trial Court has then laid emphasis on thepipeline in the well situated in the suit property. On the basis ofexistence of pipeline coupled with covenant in the agreementregarding delivery of possession it is held that plaintiff has primafacie proved possession over the suit property.11.The learned Appellate Court while reversing the order passedby the learned Trial Court has held that although the agreement isstated to have been entered on 01.06.2018, the plaintiff did not takeany effective steps for execution of the sale deed pursuant to the saidNarwade 943-wp-3432.odt-8-agreement for an inordinately long period around four years. Withrespect to the pipeline, the learned Appellate Court has disbelievedthe version of the plaintiff. The learned First Appellate Court has alsoconsidered the entries in Revenue Records which are standing in thenames of defendant nos.1 and 2- vendors and thereafter in the nameof defendant no.3-purchaser.12.The contention of the learned Counsel for the petitioner is thatsince the payment of Rs.3,00,000/- is made by cheque genuineness ofsale transaction should not be doubted. Payment of amount bycheques cannot be an explanation for silence of an inordinate periodof more than four years. A money lending transaction can also bedone by advancing money by cheques.13.As regards the statements of two individuals referred by thelearned counsel for the petitioner, they do not appear to be ofadjoining land owners. The learned counsel for the petitioner furthercontends that sale deed could not be executed due to formalitiespertaining to area connectivity which was not done. He contends thatplaintiff was regularly in touch with defendant nos.1 and 2. In thisregard he has drawn attention to Whats App communicationsbetween the parties which is placed on record. The learned TrialCourt has also not dealt with said alleged communication betweenthe petitioner and defendant nos.1 and 2.Narwade 943-wp-3432.odt-9-14.It is well settled that although entries in revenue records arenot document of title, they raises a presumption with respect topossession. The material brought on record by the plaintiff isinsufficient to dislodge the presumption which arises from revenueentries. As rightly pointed out by the learned First Appellate Court,the plaintiff has not taken any steps for enforcement of the agreementfor a long period of four years. This casts a doubt with respect togenuineness of the transaction in the sense as to whether theagreement was in essence a genuine agreement of sale. The findingsrecorded by the learned First Appellate Court cannot be said to beperverse. The learned First Appellate Court has applied its mind to thematerial on record to arrive at a prima facie finding of fact which inthe opinion of this Court need not be reversed. 15.In view of the aforesaid, in the considered opinion of thisCourt, no case is made out by the petitioner warranting interferencewith the judgment and order passed by the learned First AppellateCourt. The petition is therefore dismissed. [ROHIT W. JOSHI, J.]Narwade