1 ao137.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 137 OF 2011 WITH CIVIL APPLICATION NO. 9642 OF 2011 Sow. Kamlabai w/o Kewalchand Accha, Age: 60 years, Occ: Household., R/o. Main Chowk, Jintur, District Parbhani, Through her G.P.A. Holder, Pradeep s/o Kewalchand Accha, Age: 37, Occ: Agril. & Business, R/o. As above. ...APPELLANT VERSUS Shantilal s/o Hiralal Accha, Age: 72 years, Occ: Pensioner, R/o. C/o. Mahaveer provisions, Prabhavati Nagar, Parbhani and others. ...RESPONDENTS ... Mr. S.S. Rathi, Advocate for appellant. Mr. S.S. Jadhavar, Advocate for respondent No.2. ... CORAM: S.S. SHINDE, J. DATE : 16TH AUGUST, 2011 2 ao137.11 PER COURT : Heard learned Counsel appearing for the appellant. Learned Counsel appearing for the appellant at the outset submitted that, the order of status quo was in force till 02-08-2011 till the time the application of the appellant for temporary injunction came to be rejected. Learned Counsel for the appellant invited my attention to the agreement of sale and affidavits of three witnesses who have stated that the appellant is in possession of the suit property. Learned Counsel further submitted that, the sale deed was to be executed on 06-12-2010 as agreed between the parties, however, respondent No.1 did not appear before the Sub Registrar and subsequently, on 23-02-2011 sale deed was executed by respondent No.1 in favour of respondent Nos. 2 and 3. Learned Counsel submitted that, though the agreement of sale was not registered document, said document can be read in evidence for collateral purpose. In support of his contention, learned Counsel 3 ao137.11 placed reliance on the judgment of the Hon'ble Supreme Court in the case of S. Kaladevi vs. V.R. Somasundaram and others reported in 2010(3) ALL MR 477 (S.C.). Learned Counsel further submitted that, the agreement of sale placed on record and also the affidavits of three witnesses who are attesting witnesses and one by neighbour, fully supports the case of the appellant that she is in possession of the suit property. Learned Counsel further invited my attention to the grounds taken in the Appeal from Order and submitted that, when the order of status quo was in force till 02-08-2011, same order needs to be continued till disposal of the suit. 2. On the other hand, learned Counsel for respondent No. 2 invited my attention to the fact that the defendants have purchased the property by way of registered sale deed. The contention of defendant Nos. 2 and 3 that they are owners and possessors of the suit house on the basis of sale deed dated 23-02-2011, is supported by the 4 ao137.11 affidavits filed by Amer Noor Baig Mirza at Exhibit-57, Dilip Hariram Soni at Exhibit-60, Gajanan Manikrao Shelke at Exhibit-61 and Bhaskar Keshavrao Rokade at Exhibit-62. Learned Counsel invited my attention to Para-16 of the impugned order at Page-80 of the compilation and submitted that, one Mr. Vijay Bhaskar Bahekar has stated in his affidavit that, earlier his signature which was obtained by the plaintiff was on the blank paper and the said signature is misused. 3. I have given due consideration to the submissions advanced by the learned Counsel for the appellant and learned Counsel for respondent No.2. At the outset, it is relevant to mention that the agreement to sell which was placed on record by the plaintiff is unregistered agreement to sell. The effect of such agreement to sell has been considered by the trial Court extensively in Paragraphs-19 to 21 of the impugned order and in Paragraph-21, the trial Court has reached to the conclusion that the alleged agreement to sell is 5 ao137.11 unregistered document. The suit of the plaintiff alongwith present application is based on that document only and it is not filed for the collateral purpose. It is further observed that, what is the effect of unregistered document of agreement of sale will be decided later on after recording evidence of both the parties. The trial Court also observed that, defendant No.1 has executed sale deed in favour of defendant Nos. 2 and 3 and they are owners and possessors of the property has been supported by the affidavits filed by Amer Noor Baig Mirza at Exhibit-57, Dilip Hariram Soni at Exhibit-60, Gajanan Manikrao Shelke at Exhibit-61 and Bhaskar Keshavrao Rokade at Exhibit-62. After assessing the entire evidence placed on record, the trial Court has recorded that, the documents placed on record by the defendant Nos. 1 to 3 prima facie reveals that, the plaintiff is not in possession of the suit property, neither on the date of suit nor prior to filing of the suit. 6 ao137.11 4. Learned Counsel appearing for the appellant contended that, unregistered agreement to sell can be relied for collateral purpose, in the instant case in support of the case of the appellant that, she is in possession of the suit property. However, said submission cannot be accepted in the facts of this case for the simple reason that defendant No.1 has already executed sale deed in favour of defendant Nos. 2 and 3 and their ownership and possession is supported by at least four affidavits which are placed on record. It is also relevant to mention that, one Mr. Vijay Balaji Bahekar has stated in his affidavit that, the plaintiff has obtained his signature on blank paper. . Therefore, in my opinion, the conclusion reached by the trial Court that, there is no any independent document placed on record by the appellant to support her case that she is in possession of the suit property, is a conclusion reached after appreciation of the 7 ao137.11 documents/evidence brought on record. On independent scrutiny, I do not find any case for interference. Appeal from Order and also Civil Application stand rejected. Hearing of the Special Civil Suit No. 46 of 2011 is expedited. [S.S. SHINDE, J.] sut/AUG11