Bombay High Court
Shri Annappa Maruti Zalke vs Shri Ramu Balappa Bogarnal on 13 March, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
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.]
