2025:BHC-AS:12175

WP-8341-2021.DOC

Arun Sankpal

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8341 OF 2016

Annappa Maruti Zalke, ..Petitioner (Ori

Aged 55 years, Occupation Agriculture, Plaintiff)
R/o Yenechivandi, Taluka Gadhinglaj,
District Kolhapur
Versus
Ramu Balappa Bogarnal, …Respondent
Aged 40 years, Occupation (Ori Defendant)
Agriculture, R/o. Nandanwad,
Taluka Gadhinglaj, District Kolhapur.

Mr. Kumar Babu Redekar, for the Petitioner.

Mr. Chetan Patil, with Vishwesh Gadage, for the Respondent.

CORAM: N. J. JAMADAR, J.
RESERVED ON: 21st JANUARY 2025
PRONOUNCED ON: 13th MARCH 2025

JUDGMENT.:

1. This Petition under Article 227 of the Constitution of India

assails the legality, propriety and correctness of the judgment and order

dated 24th June 2016 passed by the learned District Judge, Gadhinglaj,

in MCA No. 19 of 2016, whereby the Appeal preferred by the

ARUN
RAMCHANDRA
SANKPAL
respondent-defendant came to be allowed setting aside the order on the
Digitally signed by
ARUN
RAMCHANDRA
SANKPAL
Application for temporary injunction (Exhibit “5”) passed by the learned
Date: 2025.03.15
20:21:03 +0530

Civil Judge, Junior Division, Gadhinglaj, restraining the defendant from

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causing obstruction to the possession of, and cultivation by, the plaintiff

of the suit land till the final disposal of the suit.

2. Briefly stated the background facts are as under:

2.1 The petitioner instituted a suit being RCS No. 96 of 2015 for

specific performance of an Agreement for Sale dated 11 th May 2002 and

to restrain the defendant from causing obstruction to the possession of

the plaintiff over the suit land. The plaintiff asserts that Balu Rama

Bogarnal, the father of the defendant was the original holder of the suit

land. It was of restricted tenure. Balu Bogarnal had initially mortgaged

the said land under a Deed of Mortgage dated 27 th June 2000 and

accepted mortgage money of Rs.17,000/-. Under the said deed the

plaintiff was put in possession of the mortgaged property. Before the five

year term of the mortgage expired, Balu Bogarnal executed an

Agreement, dated 11th May 2002, to sale the said land for a

consideration of Rs.55,000/-. The defendant had executed the said

Agreement as a consenting party as Balu Bogarnal claimed that he had

effected the partition and the suit property was allotted to the share of

the defendant. The possession of the plaintiff as a mortgagee was

continued as a transferee under the said Agreement. Balu Bogarnal

passed away. The defendant refused to obtain permission of the

competent authority to sale the said land and execute a registered

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instrument to convey title to the plaintiff and threatened to dispossess

the plaintiff. Hence, the suit.

2.2 In the said Suit, the plaintiff field an Application for temporary

injunction. By an order dated 28 th October 2015, the learned Civil

Judge, Gadhinglaj, restrained the defendant from causing obstruction to

the possession of the plaintiff opining, inter alia, prima facie the

plaintiff was in possession of the Suit property, the defendant had

admitted the execution of the Mortgage Deed and the Agreement for

Sale, and, therefore, the possession of the plaintiff was required to be

protected.

2.3 In the Appeal, preferred by the defendant, the learned District

Judge interfered with the order passed by the Trial Court, principally for

the reason that the Agreement for Sale was not registered and,

therefore, the claim of possession based on such unregistered Agreement

for Sale, cannot be sustained as a lawful possession. Since the said

possession was not referable to a valid title, according to the learned

District Judge, the Trial Court was in error in granting temporary

injunction. To draw support to the aforesaid view the learned District

Judge heavily banked upon the decision of the Supreme Court in the

case of Suraj Lamp And Industries Private Limited Through Director Vs

State of Haryana And Anr.1

1 (2009) 7 SCC 363.

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3. Mr. Redekar, the learned Counsel for the petitioner strenuously

urged that the learned District Judge was not at all justified in

interfering with a reasoned discretionary order passed by the Trial

Court, in exercise of limited appellate jurisdiction. The learned District

Judge completely misconstrued the scope of the provisions contained in

Section 49 of the Indian Registration Act 1908 (“the Registration Act”).

An Agreement for Sale is not required to be compulsorily registered. The

decision of the Supreme Court, in the case of Suraj Lamp and Industries

(Supra) was in respect of unregistered documents whereunder the title

was conveyed. In the case at hand, the plaintiff was seeking specific

performance of the Agreement for Sale. Thus, the learned District Judge

committed a gross error in applying the ratio in the case of Suraj Lamp

and Industries (Supra) to the facts of the case at hand.

4. Mr. Redekar further submitted that even unregistered Deed of

Mortgage cannot be said to be devoid of any utility. An unregistered

Deed of Mortgage can be received as evidence of collateral transaction,

not required to be effected by a registered instrument and to show the

nature of the possession of the plaintiff. To lend support to this

submission Mr. Redekar placed strong reliance on the decisions of the

Supreme Court in the cases of S. Kaladevi Vs V.R. Somasundaram2 and R

Hemalatha Vs Kashthuri.3

2 (2010) 4 SCR 515.

3 (2023) 2 SCR 834.
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5. Mr Redekar further urged that, in any event, at the stage of grant

of temporary injunction the Court was required to examine prima facie

possession over the suit land. In the face of overwhelming material to

show the possession of the plaintiff over the suit land, the learned

District Judge could not have reversed the finding of the Trial Court on

the premise that the possession was not lawful. Even a rank trespasser,

who is in settled possession, is entitled to protect his possession, urged

Mr. Redekar.

6. In opposition to this Mr. Chetan Patil, the learned Counsel for the

respondent-defend, supported the impugned order. Mr. Patil would

submit that the claim of the plaintiff that the plaintiff was put in

possession of the suit land under the Agreement for Sale is not borne out

by the material on record. Sine the Mortgage Deed is not registered, the

learned District Judge was fully justified in discarding the said

instrument. The Agreement for Sale explicitly records that the three

sons of Balu Bogarnal, including the defendant, were cultivating the

three portions of the land bearing Gat No. 520 independently. Thus, the

claim of the plaintiff that he was put in possession of the suit land

under the Mortgage Deed and the said possession was continued under

the Agreement for Sale is negatived by the very recitals in the

Agreement for Sale. Mr Patil further submitted that once the partition

was executed and three sons of Balu Bogarnal were put in possession of

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their separate shares, deceased Balu Bogarnal could not have executed

an Agreement for Sale in respect of the suit property. The defendant has

categorically disputed the execution of the said Agreement as a

consenting party thereto. Therefore, the impugned order does not

warrant any interference by this Court.

7. To begin with, it is necessary to note that the petitioner has

instituted the Suit for specific performance of the contract contained in

the Agreement for Sale dated 11th May 2002. The plaintiff claimed that

he was already put in possession of the suit property under the

unregistered Mortgage Deed dated 27th June 2000 and the said

possession was continued in the capacity of the transferee under the

Agreement for Sale dated 11th May 2002. The fact that both the

instruments were unregistered principally weighed with the learned

District Judge in interfering with the order passed by the Trial Court.

The learned District Judge went on to hold that though there was

material to show that the plaintiff was in possession of the suit land, yet,

such possession did not merit protection as it was not referable to a

lawful title.

8. Before adverting to consider the correctness of the aforesaid view,

it may be apposite to note the jurisdictional limits of the Appellate Court

in an appeal against a discretionary order. The legal position is well

recognized. Ordinarily, the appeal Court is not expected to interfere with the

exercise of discretion in the matter of grant of injunction by the trial Court and
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substitute its own discretion for the same, except where it can be

demonstrated that the discretion has been exercised arbitrarily or perversely,

or the impugned order is contrary to the settled principles of law. An

arbitrariness in the exercise of discretion or perversity in the order passed by

the trial Court can arise where the injunction has been granted sans material

or the trial court has declined to grant temporary injunction, despite existence

of justifiable material.

9. A profitable reference in this context can be made to a three Judge

Bench decision of the Supreme Court in the case of Wander Ltd. and Anr. V/s.

Antox India P. Ltd, 1990 (supp) SCC 727 wherein the following observations

have been made :

“14. The appeals before the Division Bench

were against the exercise of discretion by the
Single Judge. In such appeals, the Appellate
Court will not interfere with the exercise of
discretion of the court of first instance and
substitute its own discretion except where the
discretion has been shown to have been
exercised arbitrarily, or capriciously or
perversely or where the court had ignored the
settled principles of law regulating grant or
refusal of interlocutory injunctions. An appeal
against exercise of discretion is said to be an
appeal on principle. Appellate Court will not
reassess the material and seek to reach a
conclusion different from the one reached by
the court below if the one reached by the court
was reasonably possible on the material. The

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appellate court would normally not be justified

in interfering with the exercise of discretion
under appeal solely on the ground that if it had
considered the matter at the trial stage it would
have come to a contrary conclusion. If the
discretion has been exercised by the Trial Court
reasonably and in a judicial manner the fact
that the appellate court would have taken a
different view may not justify interference with
the trial court's exercise of discretion. After
referring to these principles Gajendragadkar, J.
in Printers (Mysore) Pvt. Ltd. V/s. Pothan
Joseph (1960) 3 SCR 713 :
“... These principles are well established,
but as has been observed by Viscount Simon in
Charles Osention & Co. v. Johnston the law as to
the reversal by a court of appeal of an order
made by a judge below in the exercise of his
discretion is well established, and any difficulty
that arises is due only to the application of well
settled principles in an individual case.
The appellate judgment does not seem to
defer to this principle.”
(emphasis supplied)
10.In the case of Seema Arshad Zaheer and Ors. V/s.

Municipal Corporation of Greater Mumbai and Ors.

(2006) 5 SCC 282. the Supreme Court expounded the

principles which govern the interference by the appeal

Court in the discretionary order passed by the trial Court.

The observations in paragraph 32 are material, and,

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hence, extracted below :

“32. Where the lower court acts arbitrarily,

capriciously or perversely in the exercise of its
discretion, the appellate court will interfere.
Exercise of discretion by granting a temporary
injunction when there is 'no 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 are 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.”
(emphasis supplied)

11. Another three Judge Bench of the Supreme Court in

the case of Skyline Education Institute (India) Pvt. Ltd. V/s.

S.L.Vaswani and Anr, (2010) 2 SCC 142, after referring to the

previous precedents, culled out the principles in the following

words :

“22. The ratio of the abovenoted judgments

in that once the Court of first instance exercises

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its discretion to grant or refuse to grant relief of

temporary injunction and the said exercise of
discretion is based upon objective consideration
of the material placed before the Court and is
supported by cogent reasons, the appellate
court will be loath to interfere simply because
on a de novo consideration of the matter it is
possible for the appellate Court to form a
different opinion on the issues of prima facie
case, balance of convenience, irreparable injury
and equity.”
(emphasis supplied )

12. In the light of the aforesaid enunciation of law it has to be

seen whether the learned District Judge was justified in

interfering with the order passed by the Trial Court granting

injunction in favour of the plaintiff. As noted above, the non-

registration of the Mortgage Deed and the Agreement for Sale, for

the specific performance of which the suit came to be instituted,

was, according to the learned District Judge, the major flaw in the

plaintiff’s case.

13. On a careful consideration of the matter, this Court finds it

difficult to appreciate the manner in which the learned District

Judge approached the controversy. The learned District Judge

placed heavy reliance on a two-Judge Bench Judgment of the

Supreme Court in the case of Suraj Lamp and Industries (Supra).

In the said case, the Supreme Court was primarily confronted with

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the issue of avoidance of execution and registration of Deeds of

Conveyance as the mode of transfer of freehold immovable

property by increasing tendency to adopt “power of attorney

sales”, that is, execution of sale agreement/general power of

attorney/will (for short “SA/GPA/Will transactions”) instead of

execution of registration of regular deeds of conveyance, on

receiving full consideration.

14. After highlighting the pernicious effects of such

transaction, the Supreme Court enunciated that such transactions

adversely affect the economy, civil society and law and order. The

Supreme Court eventually framed few questions for larger

considerations.

15. It is imperative to note that in Suraj Lamp and Industries

Private Limited (2) Through Director Vs State of Haryana And

Anr.4 a three Judge Bench of the Supreme Court enunciated that

SA/GPA/Will transaction does not convey any title nor creates

interest in an immovable property. An immovable property can be

legally and lawfully transferred/conveyed only by a registered

Deed of Conveyance. The transaction of the nature of “GPA sales”

or “ SA/GPA/Will transactions” do not convey title and do not

amount to transfer, nor can they be recognized as valid mode of

transfer of immovable property. The Courts will not treat such

4 (2012) 1 SCC 656.

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transaction as completed or concluded transfer or as conveyances

as they neither convey title nor create any interest in an

immovable property. They cannot be recognized as deeds of title,

except to the limited extent of Section 53-A of the Transfer of

Property Act.

16. What is of material significance, from the point of view of

the facts of the case at hand, is that the Supreme Court made it

abundantly clear that the aforesaid observations and directions of

the Supreme Court were not intended to in any way affect the

validity of the sale agreements and power of attorney executed in

genuine transactions.

17. Therefore, the learned District Judge ought to have

independently examined the question as to whether an Agreement

for Sale required registration, and what consequence emanate if it

is not registered. In view of the provisions contained in Section 54

of the Transfer of Property Act 1882 (“the TP Act”), a contract of

sale does not, of itself, create any interest in or charge on the

property. However, such an Agreement for Sale creates a personal

obligation arising out of contract and annexed to the ownership of

the property not amounting to an interest or easement therein, as

provided under Section 40 of the TP Act.

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18. On the aspect of the registration of an Agreement for Sale,

the provisions of Registration Act 1908 are absolutely clear. An

Agreement for Sale is not one of those instruments which is

required to be compulsorily registered under the Section 17 of the

Act. On the contrary, the Explanation to Section 17(2) provides

that a document purporting or operating to effect a contract for

sale of immovable property shall not be deemed to require or ever

to have required registration by reason only of the fact that such

document contains a recital of the payment of any earnest money

or of the whole or any part of the purchase money.

19. Section 49 of the Registration Act 1908, which lends

sanction to the mandate of compulsory registration of the

instruments by providing that no document required by Section

17 of the Registration Act or by any provisions of the TP Act, to be

registered shall affect any immovable property comprised therein

or be received as evidence of any transaction affecting such

property, unless it has been registered, also carves out an

exception in relation to an Agreement for Sale.

“ 49. Effect of non-registration of documents required to be

registered.—No document required by section 17 or by any
provision of the Transfer of Property Act, 1882 (4 of 1882),
to be registered shall—
(a) affect any immovable property comprised
therein, or

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(b) confer any power to adopt, or

(c) be received as evidence of any transaction
affecting such property or conferring such
power,
unless it has been registered:
Provided that an unregistered document affecting
immovable property and required by this Act or the
Transfer of Property Act, 1882 (4 of 1882), to be registered
may be received as evidence of a contract in a suit for
specific performance under Chapter II of the Specific Relief
Act, 1877 (3 of 1877) or as evidence of any collateral
transaction not required to be effected by registered
instrument.”

20. From a bare perusal of the proviso, it becomes evident that

an unregistered document may be received as evidence of a

contract in a suit for specific performance or as evidence of any

collateral transaction not required to be effected by registered

instrument. It would be contextually relevant to note that before

the Amendment by Act 48 of 2001 such an unregistered

instrument could also be received as evidence of part performance

of a contract for the purposes of Section 53-A of the TP Act.

21. A conjoint reading of Section 17, Explanation thereto, and

Section 49 of the Registration Act 1908 makes it abundantly clear

that an Agreement for Sale does not require registration. On the

contrary, an unregistered Agreement for Sale can be lawfully

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received as evidence of a contract in a suit for specific

performance.

22. In the impugned order, the learned District Judge has

committed an error in holding that since an Agreement for Sale

which is not registered cannot be used as an evidence of part

performance of a contract under Section 53-A of the TP Act, it

cannot also be received as evidence of a contract in a Suit for

specific performance or as evidence of any collateral transaction.

Such an incorrect approach vitiated the findings of the learned

District Judge.

23. In the case of S. Kaladevi (Supra), on which reliance was

placed by Mr. Redekar, the Supreme Court was confronted with

the question of admissibility of an unregistered Sale Deed in a

Suit for specific performance of the contract. After adverting to

the previous pronouncement in the case of K.B. Saha and Sons

Private Limited Vs Development Consultant Limited, 5 the Supreme

Court enunciated the law that an unregistered Sale Deed can be

received in evidence making an endorsement that it is only

received as evidence of an oral Agreement of Sale under proviso

to Section 49 of the Registration Act. The observations of the

Supreme Court in paras 11 and 12 are material and hence

extracted below.

5 (2008) 8 SCC 564.

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“11. The main provision in Section 49 provides that

any document which is required to be registered, if not
registered, shall not affect any immovable property
comprised therein nor such document shall be received
as evidence of any transaction affecting such property.
Proviso, however, would show that an unregistered
document affecting immovable property and required
by 1908 Act or the Transfer of Property Act, 1882 to be
registered may be received as an evidence to the
contract in a suit for specific performance or as
evidence of any collateral transaction not required to
be effected by registered instrument. By virtue of
proviso, therefore, an unregistered sale deed of an
immovable property of the value of Rs. 100/- and more
could be admitted in evidence as evidence of a contract
in a suit for specific performance of the contract. Such
an unregistered sale deed can also be admitted in
evidence as an evidence of any collateral transaction
not required to be effected by registered document.
When an unregistered sale deed is tendered in
evidence, not as evidence of a completed sale, but as
proof of an oral agreement of sale, the deed can be
received in evidence making an endorsement that it is
received only as evidence of an oral agreement of sale
under the proviso to Section 49 of 1908 Act.
12. Recently in the case of K. B. Saha and Sons
Private Limited v Development Consultant Limited, this
Court noticed the following statement of Mulla in his
Indian Registration Act, 7th Edition, at page 189:-
"......The High Courts of Calcutta, Bombay, Allahabad,
Madras, Patna, Lahore, Assam, Nagpur, Pepsu,
Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the

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former Chief Court of Oudh; the Judicial

Commissioner's Court at Peshawar, Ajmer and
Himachal Pradesh and the Supreme Court have held
that a document which requires registration under
Section 17 and which is not admissible for want of
registration to prove a gift or mortgage or sale or lease
is nevertheless admissible to prove the character of the
possession of the person who holds under it..."
This Court then culled out the following principles:-
"1. A document required to be registered, if
unregistered is not admissible into evidence under
Section 49 of the Registration Act.
2. Such unregistered document can however be used as
an evidence of collateral purpose as provided in the
proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or
divisible from, the transaction to effect which the law
required registration.
4. A collateral transaction must be a transaction not
itself required to be effected by a registered document,
that is, a transaction creating, etc. any right, title or
interest in immovable property of the value of one
hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of
registration, none of its terms can be admitted in
evidence and that to use a document for the purpose of
proving an important clause would not be using it as a
collateral purpose."
To the aforesaid principles, one more principle may be
added, namely, that a document required to be
registered, if unregistered, can be admitted in evidence

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as evidence of a contract in a suit for specific

performance.”
(emphasis supplied)

24. In the case of R Hemalatha (Supra) the Agreeement to Sale

was required to be compulsorily registered in view of Section

17(1)(g) of the Registration Act, as applicable to the State of

Tamil Nadu. In that context, a question arose before the Supreme

Court whether such unregistered Agreement to sale immovable

property can be received in evidence in a suit for specific

performance. The Supreme Court held that, despite the insertion

of Section 17(1)(g) and ommission of Explanation to Section

17(2) of the Registration Act, by the Tamil Nadu Amendment Act

2012, the unregistered Agreement to Sale is admissible in

evidence in a suit for specific performance as the proviso is an

exception to the first part of the Section 49 of the Registration

Act.

25. The aforesaid exposition of law also covers the unregistered

Mortgage Deed. The Deed of Mortgage, though unregistered, can

be looked into for the collateral purpose to ascertain the nature of

possession. A reference can also be made to another three Judge

Bench judgment of the Supreme Court in the case of Bhaiya

Ramanuj Pratap Deo Vs Lalu Maheshanuj Pratap Deo & Ors6

6 (1981) 4 SCC 613.

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26. In the said case, the admissibility of Khorposh

(Maintenance Deed) was called in question as it was an

unregistered instrument. The Supreme Court held that the

maintenance deed can be looked into for collateral purpose of

ascertaining the nature of the possession. The observations in para

22 read as under:

“22 As regards the second reason, the argument is

based on Section 17 read with Section 49 of the
Indian Registration Act. Section 17 of the
Registration Act enumerates the documents
requiring registration. Section 49 of the Registration
Act provides that no document required by Section
17 or by any provision of the Transfer of Property
Act, 1882 to be registered shall be (a) affect any
immovable property comprised therein, (b) ***, (c)
be received as evidence of any transaction affecting
such property or conferring such power, unless it
has been registered. Khorposh (maintenance) deed
is a document which requires registration within the
meaning of Section 17 of the Indian Registration Act
and as the document was not registered it cannot be
received as evidence of any transaction affecting
such property. Proviso to section 49, however,
permits the use of the document, even though
unregistered, as evidence of any collateral
transaction not required to be effected by registered
instrument. In this view of the legal position the
maintenance deed can be looked into for collateral

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purpose of ascertaining the nature of possession.

(emphasis supplied)

27. The aforesaid exposition of law leads to an irresistible

interference that the learned District Judge could not have discarded

the Deed of Mortgage and, more particularly, the Agreement for Sale,

on the ground that those documents were unregistered, especially at the

stage of consideration of application for temporary injunction. It is

imperative to note that the defendant had not contested the execution,

as such, of the Deed of Mortgage and the Agreement for Sale. However,

it was alleged that those documents were executed as a cover for a

transaction of money lending on interest.

28. On the aspect of the possession of the plaintiff over the suit

property, apart from the aforesaid documents, the plaintiff had placed

on record material to show that he was cultivating the suit land. The

receipts of the supply of sugarcane from the suit land to the sugar

factories in the name of the plaintiff, were produced before the Trial

Court. On the basis of the objective material, the trial Court had

recorded a prima facie finding that the plaintiff was in possession of the

suit land. The learned District Judge, therefore, could not have

interfered with such finding of fact and the discretionary order passed

by Trial Court, in exercise of limited appellate jurisdiction.

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29. The conspectus of the aforesaid consideration is that the

impugned order suffers from the vice of transgression of

jurisdictional limit as well as wrong application of the provisions

of law to the facts of the case. Resultantly, the impugned order

deserves to be quashed and set aside.

30. Hence the following order:

:ORDER:

(i) The Petition stands allowed,

(ii) The impugned order passed by the learned District

Judge in MCA No. 19 of 2016 stands quashed and set aside

(iii) The order dated 28th October 2015 passed by the

Trial Court on the application for temporary injunction

(Exhibit “5”) in RCS No.. 96 of 2015, stands restored.

(iv) Rule made absolute in the aforesaid terms.

(v) No costs.

[N. J. JAMADAR, J.]

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This is a Court CopyTM of the judgment as appearing on the Court website.
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