- 1 - ca135 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION CIVIL APPLICATION NO.135 OF 2011 in FIRST APPEAL NO.91 OF 2011 1.Hajarat Sayyad Abdullah Mashahbur Kadari & ors .. Applicants vs 1.Shri Babaji Jadhav & ors ..Respondents Mr.S.S.Kulkarni for Applicants Mr.Nitin Mulye for Respondent nos. 1,2 & 8 Mr.Sarang Aradhya for Respondent nos. 4 to7. CORAM: A.S.OKA,J DATE: 27th April, 2011 P.C. 1. Heard learned counsel appearing for the applicants. He pointed out various documents on record which according to him show that the applicants are in possession of the property described in para 1 (B) of the plaint. He pointed out that during the pendency of the suit, this Court directed the parties to maintain status quo in respect of the suit property and the said order has been confirmed by the Apex Court - 2 - ca135 with the consent of the contesting respondents. He submitted that in view of the overwhelming documentary evidence, the interim relief operating during the pendency of the suit deserves to be continued till the disposal of the Appeal. 2. I have considered the submissions. The interim relief which was granted by this Court earlier was during the pendency of the suit. The perusal of the plaint shows that the applicants relied upon the gift deed dated 2nd October,1990 by which the suit property was allegedly gifted to the Dargah by one Anusayabai. The applicants are looking after the said Dargah. Issue no.1 was framed on the basis of the said gift deed. The issue is based on the contention of the applicants that by the gift deed,the suit property described in paragraph 1 (B) of the Plaint was gifted to the dargah. - 3 - ca135 The said issue has been answered against the applicants. 3. The Trial Court has also found that the sale deed dated 31st August,1998 executed in respect of the suit property was legal and valid. The trial Court has upheld the title of respondent nos. 1 to 3 on the basis of the said sale deed. 4. Learned counsel appearing for the applicants submitted that though the gift deed may be unregistered, but by the gift deed, a wakf has been created. 5. There cannot be any dispute that an unregistered gift deed will not create any right, title or interest in the suit property as the value of the suit property on the relevant date was certainly more than Rs.100/-. The plaint proceeds on the footing - 4 - ca135 that the applicants have become owners of the suit property on the basis of the gift deed. In fact, the gift deed is not admissible in evidence on account of want of registration. Such a document will not transfer any right,title or interest. There is no pleading in the plaint that by the gift deed, a wakf has been created. It appears that the said contention was not pressed into service before the trial Court and therefore, there is no issue framed on the basis of the said contention. 6. The suit filed by the applicants is not simplicitor for protection of the possession but the suit is based on title as the owners. The finding on issue of title is against the applicants and in fact, the title of respondent nos. 1 to 3 has been upheld by the trial court. - 5 - ca135 7. In view of the aforesaid discussion, after having failed to establish the title, the applicants are not entitled to any interim relief of injunction which is discretionery and equitable in nature. It is obvious that as the 1st appeal is pending, any transaction effected by the respondents in respect of the suit property will be subject to final outcome of the appeal. 8. Subject to what is observed above, Application is rejected. 9. On a prayer made by learned counsel for the applicant, ad interim relief granted earlier will continue to operate for a period of eight weeks from today. A.S.Oka, J - 6 - ca135