ao 27-2022.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

APPEAL AGAINST ORDER NO.27/2022

1. Shri. Bharat Dura-ganna

Ramgirwar, Aged 37 years,
Occ: Private Works,
R/o. Nagarwala Ginning no.2,
Gaikwad fail, Post. Tq. Wani,
Dist.: Yavatmal.

2. Sau. Sunita Kisan Turankar,

Aged 41, Occ: Housewife,
R/o. Behind bus stand,
Gaikwad fail, Tq.: Wani,
Dist.: Yavatmal.

3. Sau. Rekha Charandas

Ambalwar, Aged 48 years,
Occ.: Housewife, R/o.
Deshmukhwadi, Ward No.2,
Tq.: Wani, Dist.: Yavatmal,

4. Shanta Maroti Alliwar,

Aged 42 years,
Occ.: Housewife, R/o. Near
Jaitai Temple, Jaitai Nagar,
Tq. Wani, Dist.: Yavatmal

5. Geeta Vishnu Dorkhande,

(name before marriage
Geeta Ganagaram
Chandalwar), Aged 29
years, Occ.: Housewife,
R/o. Deshmukhwadi Road,
Tq.: Wani, Dist.: Yavatmal.

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6. Sau. Suman Ashok Kumare,

Aged 36 years, Occ:
Housewife, R/o. Ashok
Gaikwad fail, Tq.: Wani,
Dist.: Yavatmal.

7. Sau. Durga Ravi Singarpawar,

Aged 34 years, Occ:
Housewife, R/o. Near Jaitai
Temple, Jaitai Nagar,
Tq.: Wani, Dist.: Yavatmal.

8. Sayyabai Champat
Surayawanshi, Aged 50 years,
Occ.: Housewife, R/o. Behind
Bus Stand, Deshmukhwadi
Road, Tq.: Wani,
Dist.: Yavatmal.

9. Shri. Gangaram Paikaji

Chandalwar, Aged 48, Occ:
Private Work, R/o. Behind bus
Stand, Ward No.2 Wani,
Tq. Wani Dist.: Yavatmal.

10. Shri. Santosh Rajaram Vaidya

Aged: 52 years, Occ.: Busienss,
R/o. Ward No.7, Beldarpura,
Wani, Tq. Wani, Dist: Yavatmal

11. Shri. Nilesh Madhukarrao

Parantiwar, Aged 37 years,
Occ.: Business, R/o. Jaitai
Nagar, Wani, Tq. Wani,
Dist. Yavatmal.

12. Smt. Anita Santosh Ingole,

Aged 38 years, Occ: Service,
R/o. Ghuggus Road, Ward No.1

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Punvat, Tq. Wani, Dist. Yavatmal

13. Shri. Vijay Marotrao Jaypurkar,

Aged 52 years, Occ.: Business,
R/o. Subhashchandra Bhosh
Chowk, Jatra Road Wani,
Tq. Wani, Dist.: Yavatmal

14. Shri. Love Ananta Mahakulkar,

Aged 33 years,
Occ.: Agriculturist
R/o. Dhoptala, Po. Bhaalar,
Tq. Wani, Dist.: Yavatmal

15. Shri Dhamendra Durgaprasad

Nageshwar, Aged 27 years,
Tq. Khairlanji, Dist. Balaghat,
Madhya Pradesh.

16. Shahrukh Khan Laylabha Khan,

Aged 29 years, Occ. Labour,
R/o. Ward No.13 Rangnath
Nagar, Wani, Tq. Wani,
Dist. Yavatmal

17. Shri. Sudhakar Ganpat Wairkar,

Aged 61 years, Occ.: Retired,
R/o. M Q 286 Sundarnagar,
Taroda, Po. Punvat, Tq. Wani,
Dist.: Yavatmal

18. Sau. Sushila Sudhakar Wairkar,

Aged 60 years, Occ.: Housewife,
R/o. M Q 286 Sundarnagar,
Taroda, Po. Punvat, Tq. Wani,
Dist.: Yavatmal.

19. Sau. Sangita Nandkishor Sapat,

Aged 39 years, Occ.: Service,

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R/o. Waroda, Po. Sakhari,

Tq. Rajura, Dist. Chandrapur.

20. Ku. Sunita Latari Aasutkar,

Aged 40 years, Occ.: Housewife,
R/o Behind Grampanchayat,
Waghdara, Tq. Wani,
Dist. Yavatmal.

21. Sau. Anita Nandkishor

Urkude, Aged 36 years, Occ.
Housewife, R/o Zola, Tq. Wani,
Dist. Yavatmal.

22. Shri. Nandkishor Raghoba

Urkude, Aged 35 years, occ.
Labour, R/o Zola, Tq. Wani, Dist,
Yavatmal.

23. Madhuri Babarao Bhankede,

Aged 31 years, Occ. Service, R/o
Near Ingole Medical, Jatra Maidan
Road, Wani, Tq. Wani,
Dist. Yavatmal.

... APPLICANTS
...VERSUS…

1. Smt. Laxmibai wd/o.

Jagdish Kumar Khungar,
Aged 57 years,

2. Shri. Uttam s/o Jagdish

Kumar Khungar, Aged 23 years,

3. Shri. Kishor s/o Ramprakash Khungar,

Aged 57 years,

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4. Shri. Gopal s/o Ramprakash Khungar,

Aged 50 years, Occ. Cultivation and
Business, R/o R1 to 4 Tagore Chowk,
Ganehpur Road, At. Post And Tq.
Wani, Dist. Yavatmal.

5. Shri. Kisan s/o Gapal Thakare,

Aged 55 years, Occ. Business and
Cultivation, R/o Sadhankar Wadi
Chikhalgaon, Tq. Wani,
Dist. Yavatmal.

6. Shri. Sanjay s/o Champatrao Potdukhe,

Aged 62 years, occ. Business and
Cultivation, R/o Sadhankar Wadi
Chikhalgaon, Tq. Wani, Dist. Yavatmal.

7. Shri. Ashok Champatrao Potdukhe,

Aged 51 years, occ. Business and
Cultivation, R/o. Ravi Nagar,
At post and Tq. Wani, Dist. Yavatmal.

8. Smt. Prabhavati wd/o Dhule Tarak,

Aged 77 years,

9. Smt. Jaya wd/o Ram Tarale,

Aged 42 years,

10. Sham s/o Dhule Tarale,

Aged 47 years,

11. Lokesh s/o Ram Tarale

Aged 47 years.

12. Chetan s/o Ram Tarale

Aged 22 years

13. Mahesh s/o Ram Tarale,

Aged 19 years Occ. All Land

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Developers and Business, R.no.8

to 13 R/o Navin waghdara in
front of Shri Hanuman Mandir at
Navin Waghdara post mandar
Tq. Wani, Dist. Yavatmal.

...RESPONDENT

WITH

APPEAL AGAINST ORDER NO.28/2022

1. Smt. Prabhavati wd/o Dhule Tarale,

aged about 78 years
Occupation- Agriculturist

2. Smt. Jaya wd/o Ram Tarale,

aged about 43 years
Occupation Agriculturist

3. Sham s/o Dhule Tarale,

aged about 48 years
Occupation Agriculturist

R/o In front of Hanuman Mandir

Navin Waghdara, Post & Tq. Wani,
Dist. Yavatmal
….APPLICANTS

VERSUS

1. Smt. Laxmibai wd/o Jagdish Kumar

Khungar, Aged about 58 years

2. Uttam s/o Jagdish Kumar Khungar,

Aged about 24 years

3. Kishor s/o Ramprakash Khungar,

Aged about 58 years

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4. Gopal s/o Ramprakash Khungar,

Aged about 51 years

Nos.1 to 4 are Cultivators & Businessmen

R/o Tagor Chowk, Ganeshpur Road,
At post & Tq. Wani Dist. Yavatmal

5. Kisan s/o Gopal Thakare,

Aged about 56 years

6. Sanjay s/o Champatrao Potdukhe

Aged about 63 years,

Nos.5 & 6 are Businessmen & Cultivators,

R/o Sadhankar Wadi Chikhalgaon Tq. Wani
Dist. Yavatmal

7. Ashok s/o Champatrao Potdukhe,

Aged about 51 years,
Occu. Business & Cultivation,
R/o Ravi Nagar At Post & Tq. Wani
Dist. Yavatmal

8. Lokesh Ram Tarale

Aged about 48 years,

9. Chetan Ram Tarale

Aged about 48 years,

10. Mahesh Ram Tarale

Aged about 20 years,

Nos.8 to 10 are Agriculturists

R/o In front to Hanuman Mandir
Navin Waghdara, Post & Tq. Wani,
Dist. Yavatmal

11. Bharat Duraganna Ramgirwar

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Aged about 35 years,

Occu. Private works,
R/o Nagarwala Ginning No.2
Gaikwad Fail Ward No.2, Wani
Tq. Wani, Dist Yavatmal

12. Sau. Sunita Kisan Turankar,

Aged about 42 years,
Occu. Housewife,
R/o Behind Bus Stand
Gaikwad Fail Ward No.2, Wani
Tq. Wani, Dist. Yavatmal

13. Sau. Rekha Charandas Ambalwar,

Aged about 49 years,
Occu. Housewife,
R/o Deshmukawadi,
Ward No.2, Wani Tq. Wani,
Dist. Yavatmal.

14. Shanta Maroti Alliwar,

Aged about 43 years,
Occu. Housewife,
R/o Near Jaitai Temple,
Jaitai Nagar, Wani
Tq. Wani, Dist. Yavatmal

15. Geeta Vishnu Dorkhande,

before marriage Geeta Gangaram Chandalwar)
Aged about 30 years,
Occu. Housewife,
R/o Deshmukhwadi Road, Wani
Tq. Wani, Dist. Yavatmal

16. Suman Ashok Kumare,

Aged about 37 years,
Occu. Housewife,
R/o Ashok Gaikwad Fail,
Wani Tq. Wani, Dist. Yavatmal

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17. Sau. Durga Ravi Singarpawar,

Aged about 35 years,
Occu. Housewife,
R/o Near Jaitai Temple,
Jaitai Nagar, Wani
Tq. Wani, Dist. Yavatmal

18. Sayyabai Champat Suryavanshi,

Aged about 51 years,
occu. Housewife,
R/o Behind Bus Stand,
Deshmukhwadi Road, Wani
Tq. Wani, Dist. Yavatmal

19. Gangaram Paikaji Chandalwar,

Aged about 49 years,
Occu. Private Work,
R/o Behind Bus Stand,
Ward No.2, Wani
Tq. Wani, Dist. Yavatmal

20. Santosh Rajaram Vaidya,

Aged about 53 years,
occu. Business,
R/o Ward No.7, Beldarpura, Wani
Tq. Wani, Dist. Yavatmal

21. Nilesh Madhukarrao Pargantiwar,

Aged about 38 years,
Occu. Business,
R/o Jaitai Nagar, Wani
Tq. Wani, Dist. Yavatmal

22. Smt. Anita Santosh Ingole,

Aged about 39 years,
occu. Service,
R/o Ghuggus Road, Ward No.1
Punwat Tq. Wani, Dist. Yavatmal

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23. Vijay Marotrao Jaipurkar,

Aged about 48 years,
Occu. Business,
R/o Subhashchandra Bose Chowk
Jatra Road, Wani Tq. Wani,
Dist. Yavatmal

24. Love Ananta Mahakulkar,

Aged about 34 years,
Occu. Agriculturist,
R/o Dhoptala Post Bhaalar,
Tq. Wani, Dist. Yavatmal

25. Dhamendra Durgaprasad

Nageshwar,
Aged about 28 years,
Occu. Labour,
R/o Chinchgaon Tq. Khairlanji,
Dist. Balaghat (M.P.)

26. Shahrukh Khan Laylabha Khan,

Aged about 30 years,
Occu. Labour,
R/o Ward No.13, Rangnath Nagar
Wani, Tq. Wani, Dist. Yavatmal

27-A. Sudhakar Ganpat Wairkar,

Aged about 62 years,
Occu. Retired,
R/o M Q 286 Sundarnagar,
Taroda Post. Punwat
Tq. Wani Dist. Yavatmal
Mob. No.8975792877

27-B. Sau. Sushila Sudhakar Wairkar,

Aged about 60 years,
Occu. Housewife
R/o M Q 286 Sundarnagar,

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Taroda Post. Punwat

Tq. Wani Dist. Yavatmal
Mob. No.8975792877

28. Sau. Sangita Nandkishor Sapat,

Aged about 40 years,
Occu. Service,
R/o Waroda, Post Sakhari,
Tq. Rajura, Dist. Chandrapur

29. Ku. Sunita Latari Aasutkar,

Aged about 41 years,
Occu. Housewife,
R/o Behind Grampanchayat,
Waghdara Tq. Wani,
Dist. Yavatmal

30-A. Sau. Anita Nandkishor Urkude,

Aged about 37 years,
Occu. Housewife,
R/o Zola, Tq. Wani,
Dist. Yavatmal

30-B. Nandkishor Raghoba Urkude,

Aged about 36 years,
Occu. Labour,
R/o Zola, Tq. Wani,
Dist. Yavatmal

31. Madhuri Babarao Bhankhede,

Aged about 32 years,
Occu. Service,
R/o Near Ingole Medical,
Jatra Maidan Road, Wani,
Tq. Wani, Dist. Yavatmal
…. RESPONDENTS

WITH

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APPEAL AGAINST ORDER NO.17/2023

1. Lokesh Ram Tarale

Aged about 48 years,
Occ. Agriculturist

2. Chetan Ram Tarale

Aged about 48 years,
Occ. Agriculturist

3. Mahesh Ram Tarale

Aged about 20 years,
Occ. Agriculturist

All R/o In front to Hanuman Mandir

Navin Waghdara, Post & Tq. Wani,
Dist. Yavatmal
….APPLICANTS

VERSUS

1. Smt. Laxmibai wd/o Jagdish Kumar

Khungar, Aged about 58 years
Occ. Agriculturist and Business

2. Uttam s/o Jagdish Kumar Khungar,

Aged about 24 years
Occ. Agriculturist and Business

3. Kishor s/o Ramprakash Khungar,

Aged about 58 years
Occ. Agriculturist and Business

4. Gopal s/o Ramprakash Khungar,

Aged about 51 years
Occ. Agriculturist and Business

Nos.1 to 4 are R/o Tagor Chowk,

Ganeshpur Road,

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At post & Tq. Wani Dist. Yavatmal

5. Kisan s/o Gopal Thakare,

Aged about 56 years
Occ. Agriculturist and Business

6. Sanjay s/o Champatrao Potdukhe

Aged about 63 years,
Occ. Agriculturist and Business

Both R/o Sadhankar Wadi Chikhalgaon

Tq. Wani, Dist. Yavatmal

7. Ashok s/o Champatrao Potdukhe,

Aged about 51 years,
Occu. Business & Cultivation,
R/o Ravi Nagar At Post & Tq. Wani
Dist. Yavatmal

8. Smt. Prabhavati wd/o Dhule Tarale,

aged about 78 years
Occupation- Agriculturist

9. Smt. Jaya wd/o Ram Tarale,

aged about 43 years
Occupation Agriculturist

10. Sham s/o Dhule Tarale,

aged about 48 years
Occupation Agriculturist

Nos.8 to 10 R/o In front of Hanuman Mandir

Navin Waghdara, Post & Tq. Wani,
Dist. Yavatmal

11. Bharat Duraganna Ramgirwar

Aged about 35 years,
Occu. Private works,
R/o Nagarwala Ginning No.2

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Gaikwad Fail Ward No.2, Wani

Tq. Wani, Dist Yavatmal

12. Sau. Sunita Kisan Turankar,

Aged about 42 years,
Occu. Housewife,
R/o Behind Bus Stand
Gaikwad Fail Ward No.2, Wani
Tq. Wani, Dist. Yavatmal

13. Sau. Rekha Charandas Ambalwar,

Aged about 49 years,
Occu. Housewife,
R/o Deshmukawadi,
Ward No.2, Wani Tq. Wani,
Dist. Yavatmal.

14. Shanta Maroti Alliwar,

Aged about 43 years,
Occu. Housewife,
R/o Near Jaitai Temple,
Jaitai Nagar, Wani
Tq. Wani, Dist. Yavatmal

15. Geeta Vishnu Dorkhande,

before marriage Geeta Gangaram Chandalwar)
Aged about 30 years,
Occu. Housewife,
R/o Deshmukhwadi Road, Wani
Tq. Wani, Dist. Yavatmal

16. Suman Ashok Kumare,

Aged about 37 years,
Occu. Housewife,
R/o Ashok Gaikwad Fail,
Wani Tq. Wani, Dist. Yavatmal

17. Sau. Durga Ravi Singarpawar,

Aged about 35 years,

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Occu. Housewife,
R/o Near Jaitai Temple,
Jaitai Nagar, Wani
Tq. Wani, Dist. Yavatmal

18. Sayyabai Champat Suryavanshi,

Aged about 51 years,
occu. Housewife,
R/o Behind Bus Stand,
Deshmukhwadi Road, Wani
Tq. Wani, Dist. Yavatmal

19. Gangaram Paikaji Chandalwar,

Aged about 49 years,
Occu. Private Work,
R/o Behind Bus Stand,
Ward No.2, Wani
Tq. Wani, Dist. Yavatmal

20. Santosh Rajaram Vaidya,

Aged about 53 years,
occu. Business,
R/o Ward No.7, Beldarpura, Wani
Tq. Wani, Dist. Yavatmal

21. Nilesh Madhukarrao Pargantiwar,

Aged about 38 years,
Occu. Business,
R/o Jaitai Nagar, Wani
Tq. Wani, Dist. Yavatmal

22. Smt. Anita Santosh Ingole,

Aged about 39 years,
occu. Service,
R/o Ghuggus Road, Ward No.1
Punwat Tq. Wani, Dist. Yavatmal

23. Vijay Marotrao Jaipurkar,

Aged about 48 years,

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Occu. Business,
R/o Subhashchandra Bose Chowk
Jatra Road, Wani Tq. Wani,
Dist. Yavatmal

24. Love Ananta Mahakulkar,

Aged about 34 years,
Occu. Agriculturist,
R/o Dhoptala Post Bhaalar,
Tq. Wani, Dist. Yavatmal

25. Dhamendra Durgaprasad

Nageshwar,
Aged about 28 years,
Occu. Labour,
R/o Chinchgaon Tq. Khairlanji,
Dist. Balaghat (M.P.)

26. Shahrukh Khan Laylabha Khan,

Aged about 30 years,
Occu. Labour,
R/o Ward No.13, Rangnath Nagar
Wani, Tq. Wani, Dist. Yavatmal

27-A. Sudhakar Ganpat Wairkar,

Aged about 62 years,
Occu. Retired,
R/o M Q 286 Sundarnagar,
Taroda Post. Punwat
Tq. Wani Dist. Yavatmal
Mob. No.8975792877

27-B. Sau. Sushila Sudhakar Wairkar,

Aged about 60 years,
Occu. Housewife
R/o M Q 286 Sundarnagar,
Taroda Post. Punwat
Tq. Wani Dist. Yavatmal
Mob. No.8975792877

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28. Sau. Sangita Nandkishor Sapat,

Aged about 40 years,
Occu. Service,
R/o Waroda, Post Sakhari,
Tq. Rajura, Dist. Chandrapur

29. Ku. Sunita Latari Aasutkar,

Aged about 41 years,
Occu. Housewife,
R/o Behind Grampanchayat,
Waghdara Tq. Wani,
Dist. Yavatmal

30-A. Sau. Anita Nandkishor Urkude,

Aged about 37 years,
Occu. Housewife,
R/o Zola, Tq. Wani,
Dist. Yavatmal

30-B. Nandkishor Raghoba Urkude,

Aged about 36 years,
Occu. Labour,
R/o Zola, Tq. Wani,
Dist. Yavatmal

31. Madhuri Babarao Bhankhede,

Aged about 32 years,
Occu. Service,
R/o Near Ingole Medical,
Jatra Maidan Road, Wani,
Tq. Wani, Dist. Yavatmal
…. RESPONDENTS

------------------------------------------------------------------------------------
AO No.27/2022
Shri J.J. Chandurkar, Advocate for applicants
Shri O.R. Deshpande, Advocate for respondent Nos.1 to7
Shri S.C. Bhalerao, Advocate for respondent Nos.8 to 10

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Shri A.D. Girdekar, Advocate for respondent Nos.11 to 13

AO No.28/2022
Shri S.C. Bhalerao, Advocate for applicants
Shri O.R. Deshpande, Advocate for respondent Nos.1 to7
Shri, A.D. Girdekar, Advocate for respondent Nos.8 to 10
Shri J.J. Chandurkar, Advocate for respondent Nos.11 to 31
AO. No.17/2023
Shri A.D. Girdekar, Advocate for applicants
Shri O.R. Deshpande, Advocate for respondent Nos.1 to7
Shri S.C. Bhalerao, Advocate for respondent Nos.8 to 10
Shri J.J. Chandurkar, Advocate for respondent Nos.11 to 31
------------------------------------------------------------------------------------

CORAM : SMT. M.S. JAWALKAR, J.

RESERVING THE DATE OF JUDGMENT : 12/04/2023

PRONOUNCING THE DATE OF JUDGMENT: 05/06/2023

JUDGMENT

Heard. By consent of parties, the matter is taken up for

final hearing at the stage of admission.

2. The appellant/original defendant No.7 to 27 are

challenging the order passed by the learned Civil Judge Senior

Division, Kelapur, District Yavatmal in Special Civil Suit No.22/2018

dated 31/01/2022 below Exhibit 63 in an application by the

plaintiffs for temporary injunction.

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3. The case of the plaintiffs is that an agreement of joint

venture was executed on 30/12/2006 between deceased Jagdish

Khungar along with plaintiff Nos.3 and 4 at one part and defendant

Nos.4 to 6 then minor through their natural guardian i.e. mother

(defendant No.2) on other part. Further contention of the plaintiffs

was that there is another agreement of joint venture dated

24/03/2011 was executed between one deceased Jagdish Khungar

along with plaintiff Nos 3 and 4 at one part and defendant Nos.1 to

3 at another part and plaintiff Nos.5 to 7 on other part. The subject

matter of the suit was field Survey No.10603 admeasuring 4 H 4 R

situated at Wani, District Yavatmal.

4. The plaintiff filed a suit bearing Special Civil Suit

No.22/2018 for declaration, mandatory injunction and recovery of

money. The claim of the plaintiff is that the suit property may be

handed over to the plaintiffs and the sale deeds more specifically

described in the plaint may be declared as void. The appellants

herein (defendant Nos.7 to 15) the purchasers of the suit property

filed their written statements. They denied the right of the plaintiffs

to file the suit. As plaintiffs are strangers to the properties and the

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transactions, they have no cause of action for instituting the suit.

Similar is the stand taken by defendant Nos.16 to 27. The plaintiffs

filed an application for temporary injunction. By this application,

the plaintiff claimed that the defendant Nos.1 to 6 were not

permitted to alienate any of the plots from the stock in trade. They

also claimed that the sale deeds for which plots in question were

sold, were illegal. They further prayed that defendants may be

restrained from selling the plots in stock and restraining defendant

Nos.7 to 27 from recording illegal sale of plots on their names in

Revenue Record by issuing temporary injunction and from

restraining the defendants from creating any third party interests in

the sold plots and making changes in mutation entries as regards

the said plots.

5. The defendants/ appellants herein filed their respective

replies to the application for the aforesaid application. They stated

that there is no prima facie case in favour of plaintiffs and the

balance of convenience also does not lie in favour of the plaintiffs.

Defendant Nos. 7 to 15 and 16 to 27 claimed that they are the

bonafide purchasers of the plots out of the suit property and also

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claimed rejection of plaint under Section 41 (h), (i) and (j) of the

Specific Relief Act, 1963.

6. The learned Civil Judge, Senior Division, Kelapur vide

order dated 30/01/2021 held that great hardship will be caused to

the plaintiffs and if the subject matter changes, irreparable loss

would be caused to the plaintiffs. The main ground of challenge to

the said order is that the learned Trial Court was in error in

allowing the application of the plaintiffs inasmuch as the

agreements dated 30/12/2006 and 24/03/2011 between the

plaintiffs and defendant Nos.1 to 6 are not registered and the same

are executed on Rs.100/- stamp paper.

7. It is submitted by learned Counsel for appellant that

defendant Nos.7 to 15 and 16 to 27 are the bonafide purchasers

and plaintiffs are strangers to the plots in the suit property. It was

not shown how irreparable loss would cause to the plaintiffs. The

learned Trial Court totally erred in holding that the plaintiffs had

legal rights and interests over the suit land in order to carry out its

developments on the basis of their privity of contract with

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defendant Nos.1 to 6. While holding this, the learned Trial Court

totally ignored the fact that the document is unregistered one and

cannot be said to have clothed the plaintiffs with any enforceable

rights. As such, the bonafide purchasers/defendants cannot be

deprived of their right of ownership of the suit plots and

development of the same. The learned Trial Court has not

considered the hardship that will be caused to the defendant Nos.7

to 27, the bonafide purchasers. The learned Trial Court failed to

appreciate this fact that the defendants are bonafide purchasers and

some of them have started construction on the plots and some of

them have taken steps for obtaining loan. By the said impugned

order, their constructions has been stopped and they are not able to

enjoy their properties despite being bonafide purchasers.

8. The respondent Nos.1 to 7 (original plaintiffs) filed

their reply and submitted that respondent Nos.8 to 13 (original

defendant Nos.1 to 7) executed more than 40 sale deeds without

any compliance to the agreement behind back of the answering

respondents. Interference in the impugned judgment will amount to

multiplicity of proceedings and same shall further delay and deprive

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 ao 27-2022.odt 23/31

the answering respondents from justice.

9. I have heard both the parties. Perused the impugned

order and considered citations placed on record. Admittedly, the

alleged document of development deed is unregistered document.

The defendant Nos.7 to 27 are purchasers of the plots from original

defendant Nos.1 to 6. Suit is filed by plaintiffs for declaration,

temporary injunction and recovery of money. There was an

agreement of joint venture executed on 30/12/2006. The learned

Trial Court after considering the documents placed on record partly

allowed application Exhibit 63 which was filed by the plaintiffs for

temporary injunction and also seeking prayer to restrain defendant

Nos.1 to 6 from selling plots out of stock in trade and restraining

defendant Nos.7 to 27 from selling out plots recorded in their

respective names at Revenue Record and not to carry out

construction thereon and not to create any third party interest over

the suit land. By this order, defendants were temporarily restrained

from alienating, carrying construction and creating any kind of

third party interest over respective plots out of suit land recorded in

their names either individual capacity or jointly as the case may be

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 ao 27-2022.odt 24/31

during pendency of the suit. Other relief claimed by the plaintiff

stood rejected. The main ground of challenge by the appellants

herein is that the alleged deeds of joint venture/development

between plaintiffs and defendant Nos.1 to 6 are not registered. As

the unregistered documents cannot be said to have clothed, the

plaintiffs with any enforceable right whatsoever, those findings

recorded by the learned Judge that plaintiffs had legal rights and

interests over the suit land in order to carry out its development on

the basis of their privity of contract with defendant Nos.1 to 6 is

unsustainable. Consequently, the present purchasers/appellants

cannot be deprived of their rights of ownership of the suit plot and

development of the same. Secondly, the defendant Nos.7 to 15 and

16 to 27 are bonafide purchasers by registered sale deed whereas

the plaintiffs are strangers to the plots in the suit property and have

no title over the plots. Thirdly, plaintiffs have not established any

prima facie case for grant of temporary injunction nor established

rejection of said application will cause prejudice to them. On the

basis of unregistered document, they want to injunct the bonafide

purchasers.

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 ao 27-2022.odt 25/31

10. After considering the order, prima facie it appears that

the defendant Nos.1 to 3 have deposited amount in the account of

Government being 75% valuation of suit land in compliance of said

permission granted by the Collector Yavatmal. Defendant Nos.1 to 3

also have not disputed their signatures appearing on both alleged

documents dated 30/12/2006 and 24/03/2011. It is also not

disputed that at the relevant time, defendant Nos.4 to 6 were minor

and defendant No.2 shown to have executed the same for herself

and on behalf of those minor defendants being their natural

guardian. Though the document is styled as ‘joint ventures’, it is for

development of the suit land which can be clear from the recital in

the agreement. The said development was to be carried out in

accordance with sanction order of Collector passed on 06/02/2013.

As per defendant Nos.1 to 3, collection of funds on their part from

deceased Jagdish Kumar, plaintiff and plaintiff Nos.3 and 4 being

hand loan and money lending transaction. They have also filed

counter claim with regard to illegal selling of plots by the plaintiffs

without their authorization. The learned Trial Court observed as

under:

“No doubt, there is lack of plaint pleadings to some

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 ao 27-2022.odt 26/31

extent on the point of details of development of the

suit land in the light of mutual agreements took
place among those parties. However, the fact
remains on record that, the plaintiffs have got legal
rights and interest over suit land in order to carry
out its development on the basis of their privity of
contract with defendant Nos.1 to 6.”

11. In this regard, the learned Counsel for appellants relied

on Shyam Narayan Prasad Vs. Krishna Prasad and others, reported

in (2018) 7 SCC 646, wherein the Hon’ble Apex Court held that

exchange deed by which the ownership of their respective

properties is transferred, it needs registration. Section 118 of the

Transfer of Property Act defines “exchange”. It is clear from this

provisions that where either of the properties in exchange are

immovable or one of them is immovable and the value of anyone is

Rs.100/- or more, the provision of Section 54 of the TP Act relating

to sale of immovable property would apply. The mode of transfer in

case of exchange is the same as in the case of sale. It is thus clear

that in the case of exchange of property of value of Rs.100/- and

above, it can be made only by a registered instrument.

In Section 49 of the Registration Act, is perused which

reads as under:

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“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
(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:”

Section 17 (1)(b) of the Registration Act mandates that any

document which has the effect of creating and taking away the

rights in respect of an immovable property must be registered and

Section 49 of the Registration Act imposes bar on the admissibility

of an unregistered document and deals with the documents that are

required to be registered under Section 17 of the Registration Act.

12. The learned Counsel for respondents relied on

judgment in Appeal from Order No.590/2011 passed by this Court

in Lodha Estate Private Limited through Director Shri Rajendra

Lodha Vs. Shri Kishan Waman Bhoir and others, this Court held that

having received the advantage under the document, i.e. the

unregistered Development Agreement and the Power of Attorney, it

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 ao 27-2022.odt 28/31

is not open for the plaintiffs to contend that the document cannot

be acted upon. The plaintiffs are recipients of the amount which is

equivalent to prevailing market value which was arrived at between

the parties after due negotiations.

In view of the judgment relied on by the learned

Counsel for respondents, it is a matter of evidence whether parties

acted upon the alleged agreement dated 30/12/2006 or there is

any breach on the part of either of the party that would be the

question to be decided after adducing evidence. As such, it would

be appropriate to grant temporary injunction against respondent

Nos.1 to 6 to the extent of unsold plots that there should not be any

creation of any third party interest till the pendency of the suit.

13. The learned Trial Court held that plaintiffs have pre-

existing right over the suit land. The learned Trial Court observed

that the agreement in question seems to have executed for making

development in the suit plot and defendants have merely raised

objection about their un-registration, but failed to bring into notice

of the Court legal provisions indicating that, those agreements came

under the ambit of Section 17 of the Registration Act, for

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 ao 27-2022.odt 29/31

compulsory registration purpose. So far as the claim of defendant

Nos.7 to 27, the learned Trial Court held that subsequent purchaser

during pendency of suit, prima facie indicates that they are

intending to dilute acquirable monitory benefits of the plaintiffs

over the suit land on the basis of terms and conditions set out in last

agreement. While discarding contention of the defendant Nos.7 to

27, the learned Trial Court failed to appreciate that they are

bonafide purchasers and purchased property by registered sale

deeds. Some of them commenced construction over the plots. Their

names are also mutated. The learned Trial Court has not considered

the hardship and loss which they would suffer. These purchasers

would suffer by this order in injunction application. Section 17(1)

(b) does not apply only in cases where transfer is effected but

comes into play as soon as right is created in any party. If Clause-5

of joint venture agreement dated 30/12/2006 is perused, by this

Clause, the plaintiffs were entitled to receive half of the sale

amount or earnest amount against each of the plot agreed to be

sold out. The plaintiffs herein are entitled half of the amount if plot

is being sold. As such, rights are created in favour of plaintiffs and

therefore the said document is compulsorily registrable. Section 17

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 ao 27-2022.odt 30/31

(b) makes it clear that in respect of non testamentary instruments

would purport or operate to create, declare, assign, limit or

extinguish, whether in present or in future, any right, title or

interest would be registrable.

14. The learned Trial Court failed to appreciate the loss

which would cause to the purchasers who are bonafide purchasers

of the plots. Some of them have commenced construction houses

and some of them have submitted their map for sanction. In view

of the judgment in Lodha Estate Private Limited through Director

Shri Rajendra Lodha (supra) when party acted on unregistered

document they cannot raise plea that document is not admissible

for want of registration. Even if, this position is assumed to be

correct in respect of defendant Nos.1 to 6, the defendant Nos.7 to

27 were purchased the property by registered sale deed can not be

responsible any act done by respondent Nos.1 to 6. If at all, plaintiff

succeed in the suit on the basis of unregistered documents, the

defendant Nos.1 to 6 which required to compensate or make the

loss good as they have already received the amount from the

appellants herein (defendant Nos.7 to 27). The defendant Nos.7 to

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 ao 27-2022.odt 31/31

27 duly established that they have prima facie case and balance of

convenience is also in their favour. In view of the above discussion,

Appeal Against Order No.28/2022 and 17/2023 are liable to be

rejected. Accordingly, I proceed to pass the following order:

ORDER

i) Appeal Against Order No. 27/2022 is allowed.

ii) Appeal Against Order No.28/2022 and Appeal Against Order

No.17/2023 are rejected.

iii) The order passed by learned Civil Judge, Senior Division,

Kelapur, District Yavatmal in Special Civil Suit No.22/2018 dated

31/01/2022 below Exhibit 63 is hereby quashed and set aside to

the extent of defendant Nos.7 to 27. Further, defendant Nos.7 to 27

are directed to intimate the Court if any third party interest is

created in future by taking appropriate steps.

iv) Defendant Nos.1 to 6 temporarily restrained from alienating

the remaining unsold plots or creating any third party interest or

erecting any construction over the unsold plots out of the suit land.

(Smt. M.S. Jawalkar, J.)

R.S. Sahare

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 TM
This is a True Court Copy of the judgment as appearing on the Court website.
Publisher has only added the page para for convenience in referencing.