1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. APPEAL FROM ORDER NO.99 OF 2010 WITH CIVIL APPLCIATION NO.1884 OF 2010 Masoom Khan s/o Samsherkhan, age 40 years, occu. Business, r/o Old Gunj, Nanded, Tq. and Dist. Nanded. .. APPELLANT. (Ori. Plaintiff) VERSUS Sudarshan s/o Srinivasrao Ade, age 55 years, occu. Agril., and Profession, r/o Ardhapurkar Complex, Chikalwadi, Nanded, Tq. and Dist. Nanded. .. RESPONDENT. (Ori. Defendant) ... Shri Mahesh V. Ghatge, Advocate for appellant. Shri S.K. Kulkarni, Advocate for Respondent. ... CORAM : S.S. SHINDE,J. 19th October, 2010. ORAL JUDGMENT: 1. Heard learned Counsel for the appellant and the learned Counsel for the respondent at length. The parties were put to notice that the matter will be finally heard at the 2 admission stage and with the consent of the parties, the matter is finally heard today. 2. This appeal from order is filed challenging the order dated 26th March, 2010 passed by the Joint C.J.S.D., Nanded thereby rejecting Exhibits 6 and 8 in Special Civil Suit No.41/2010. By way of said applications at Exhs.6 and 8, the appellant – plaintiff sought relief to restrain the defendant from alienating the suit property and injunction not to disturb possession of plaintiff. However, the said applications have been rejected by the Court below. 3. The appellant herein, who is original plaintiff, filed Special Civil Suit No.41/2010 before the C.J.S.D., Nanded against the respondent – defendant seeking relief of specific performance of contract in view of the agreement to sell dated 16th April, 2009 in respect of 3 acres of land from Survey No.18/2 3 situated at village Brahmapuri, Taluka and District Nanded and further, perpetual injunction restraining the defendants from disturbing the possession of plaintiff over the suit land and also not to create third party interest in the suit property. 4. The learned Counsel for the appellant submitted that at the time of executing agreement to sell, the appellant herein has paid Rs.14,00,000/- in cash to the defendant out of total consideration of Rs.21,00,000/- as agreed between the parties. According to the learned Counsel for the appellant, since amount of Rs.14,00,000/- out of total consideration of Rs.21,00,000/- was paid to the respondent on 16.4.2009 and remaining amount was agreed to be paid at the time of execution of registered sale deed, the possession was handed over by the defendant to the plaintiff, as stated in the agreement to sell. Since the respondent herein was not 4 responding to the call of the appellant for execution of sale deed, legal notice was issued to the respondent on 1st December, 2009. However, the respondent denied execution of agreement to sell. Therefore, the appellant was constrained to file the suit for specific performance of the agreement and in the said suit, two applications were filed namely, Exh.6 praying therein the relief of restraining the defendant from interfering peaceful possession of the plaintiff and Exh.8 praying relief to restrain the defendant from creating third party rights in the suit property. The learned Counsel for the appellant further submitted that the trial Court has reached to erroneous conclusion that the agreement to sell is not registered and no reliance can be placed on the said document. IN fact, according to section 49 of the Registration Act, 1908, an unregistered 5 document can very well be relied upon for collateral purposes. In support of his contention, the learned Counsel placed reliance on the judgment in case of Bondar Singh and others vs. Nihal Singh and others (AIR 2003 SC 1905) and more particularly, Head Note (C) of the said judgment and submitted that though the unregistered document is not admissible in evidence, it can be looked into for collateral purposes such as to see nature of possession of party over suit property. It is further submitted that the conclusion reached at by the trial Court that the defendant does not intend to sell his land, is falsified by the very contention of the defendant that he has entered into some other transaction after the agreement to sell. It is further submitted that the conclusion reached at by the trial Court that in case plaintiff succeeds, the defendant can be directed to repay the amount received by him towards consideration of the said transaction, 6 is of no use for the plaintiff. The learned Counsel invited my attention to section 10 of the Specific Relief Act and submitted that the conclusion reached at by the trial Court that the consideration amount can be repaid by the defendant runs contrary to the provisions of said section. He further submitted that the trial Court has not discussed anything to about the possession nor recorded findings while rejecting the application seeking injunction against defendant not to interfere with the possession of the plaintiff. He further submitted that the trial Court had not given any opportunity to the plaintiff/appellant to impound the document as contemplated under the provisions of the Bombay Stamps Act. The learned Counsel for the appellant, relying on the pleadings and grounds taken in the appeal, submits that the appeal from order deserves to be allowed. 5. The respondent – original defendant has 7 filed affidavit-in-reply to the civil application. Relying the said affidavit, the learned Counsel for respondent would submit that the agreement to sell is neither signed nor executed by the defendant. The agreement to sell appears to be a fabricated document with the forged signatures of respondent thereon. The defendant has specifically denied that he agreed to sell the suit land in favour of the appellant for the consideration of Rs.21,00,000/- and received Rs.14,00,000/- as earnest amount at the time of execution of the so called agreement on 16.4.2009. It is further submitted that the alleged agreement to sell has not been stamped as required under the provisions of the Bombay Stamp Act, the trial Court has reached at a correct conclusion that even the witnesses to the agreement to sell have not filed affidavit in support of the case of the appellant before the trial Court and therefore, the trial Court has rightly rejected the applications at Exhs. 8 6 and 8. It is further submitted that nothing was brought on record by the plaintiff to show his possession. No 7/12 extract was brought on record, no affidavits of witnesses were filed and in absence of any evidence brought on record, the trial Court has rightly concluded that nothing has been brought on record by the plaintiff so as to restrain the defendant from interfering with the possession of the plaintiff. According to the learned Counsel for the respondent when the alleged agreement to sell itself is a fabricated document, question of handing over possession of the suit property to the plaintiff does not arise. It is further submitted that the defendant has lodged F.I.R. against the appellant and the witnesses for the alleged agreement to sell. It is submitted that the appellant herein has filed application in the Sessions Court, Nanded for anticipatory bail. One of the attesting witnesses namely Mohmad Salim Mohd. Khaja, who was witness to the 9 alleged agreement to sell and one of the co- accused in the crime registered at the instance of the defendant, was arrested and interrogated by the police during his police custody remand. In his statement dated 1st April, 2010, he specifically mentioned during interrogation that he never knew the answering respondent nor the latter signed and executed the concerned agreement to sell in his presence and his signature was obtained by the appellant on blank stamp paper. The learned Counsel for the respondent invited my attention to the affidavit-in-reply and submitted that the impugned order needs no interference since the trial court has rightly refused to exercise the discretion in favour of the appellant. 6. The Joint C.J.S.D., Nanded framed four points for its consideration and held that the plaintiff failed to prove, prima face, case and balance of convenience does not 10 lie in favour of the plaintiff. The plaintiff will not suffer any irreparable loss if temporary injunction is not granted in his favour. The trial Court observed that the plaintiff has produced copy of the Sauda Chitthi on record, the said is not a registered copy but it is a simple document on stamp paper. As per the stamp paper the document is firstly inadequately stamped and secondly it is not registered document and therefore, it cannot be considered at this point of time. There is also no separate possession receipt so even if it is considered that there was such type of agreement, the agreement itself do not transfer any right or interest in the said suit property. The plaintiff has not filed affidavit of any of the person who has witnessed the said document or who was present at the time of said agreement to prove that such type of document was executed between the parties. In para 8 of the order, the trial court has discussed 11 about the F.I.R. filed by the defendant. In said para, the Court observed that the plaintiff could not prove execution of the said document. In para 9 of the order, the trial Court, on the basis of the written statement filed by the defendant, observed that the defendant is well settled person and a legal practitioner and not in need of money, therefore, he does not intend to sell out the property or create any third party interest in the said property. In para 10 of the order, it is observed that there is no evidence to show that the plaintiff was in possession of the said suit property. In case, relief is granted as prayed for by the plaintiff, it will cause great irreparable loss to the defendant who is true owner of the property. In the light of the above, the Joint C.J.S.D., Nanded rejected the applications at Exh.6 and 8. 7. It is admitted position that the said 12 Sauda Chitthi i.e. alleged agreement to sell is an unregistered document. According to the plaintiff, the possession was handed over to the plaintiff by the defendant as mentioned in the agreement to sell. According to the plaintiff, the said agreement to sell was executed on 16th April, 2009 and possession was also handed over on the same day and the said agreement was signed by the witnesses and out of Rs.21,00,000/-, an amount of Rs.14,00,000/- was paid to the defendant. At this juncture, it would be relevant to refer the relevant provisions of the Bombay Stamps Act, 1958. Section 34 of the said Act reads, thus: “34. Instruments not duly stamped inadmissible in evidence, etc. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such 13 person or by any public officer unless such instrument is duly stamped (or if the instrument is written on sheet of paper with impressed stamp [such stamp paper is purchased in the name of one of the parties to the instrument] Provided that, - (a) any such instrument shall, subject to all just exceptions, be admitted in evidence on payment of- (i) the duty with which the same is chargeable, or in the case of any instrument insufficiently stamped, the amount required to make up such duty and; (ii) a penalty at the rate of 2 per cent of the deficient portion of the stamp duty for every month or part thereof, from the date of execution of the such instrument; Provided that, in no case, the amount of the penalty shall exceed double the deficient portion of the stamp duty) Bare perusal of the provisions of the Section 34 of the said act, would show that 14 unless instrument is duly stamped, the same cannot be admitted in the evidence. Explanation I of Article 25 of Schedule 1 of Bombay Stamp Act 1958 reads thus:- [Explanation I] – For the purposes of this article, wherein the case of agreement to sale an immovable property, the possession of any immovable property is transferred (or agreed to be transferred) to the purchaser before the execution or at the time of execution, or after the execution of, such agreement then such agreement to sale shall be deemed to be a conveyance and stamp duty thereon shall be leviable accordingly; Provided that, the provisions of Section 32A shall apply mutatis mutandis to such agreement which is deemed to be a conveyance as aforesaid, as they apply to a conveyance under that section; 8. While interpreting the provisions of Schedule I, Article 25, Explanation I of the Bombay Stamp Act, 1958, the Honourable Supreme 15 Court,in case of Veena Hasmukh Jain and another vs. State of Maharashtra and others [(1999)5 SCC 725], held thus: “ The duty in respect of an agreement covered by Schedule I, Article 25, Explanation I of the Bombay Stamp Act, 1958 is leviable as if it is a conveyance. The conditions to be fulfilled are that if there is an agreement to sell immovable property and possession of such property is transferred to the purchaser before the execution or at the time of execution or subsequently without executing any conveyance in respect thereof, such an agreement to sell is deemed to be a “conveyance”. In the event a conveyance is executed in pursuance of such agreement subsequently, the stamp duty already paid and recovered on the agreement of sale which is deemed to be a conveyance shall be adjusted towards the total duty leviable on the conveyance.“ It is further held thus;- “ If the legislature thought that it 16 would be appropriate to collect duty at the stage of the agreement itself, if it fulfills certain conditions instead of postponing the collection of such duty till the completion of the transaction by execution of a conveyance deed inasmuch as all substantial conditions of a conveyance have already been fulfilled such as by passing of a consideration and delivery of possession of the property and what remained to be done is a mere formality of execution of a sale deed, it would be necessary to collect duty at the agreement stage itself though right title and interest may not have passed as such. Still, by reason of the fact that under the terms of the agreement, there is an intention of sale and possession of the property has also been delivered, it is certainly open to the State to charge such instruments at a particular rate which is akin to a conveyance. Therefore, it cannot be said that levy of duty is not upon the instrument but on the transaction. The object of the Explanation is clear that if an agreement is entered into and that agreement itself contemplates the delivery of possession 17 of the property within the stipulated time, then such an agreement should be deemed to be a conveyance for the purpose of duty leviable under the Bombay Stamp Act.” 9. It is true that the unregistered sale deed though not admissible in evidence, can be looked into for collateral purposes such as to see nature of possession of party over suit property as held in the case of Bondar Singh and others (supra). However, the plaintiff is obliged to show his prima facie case at least by placing on record affidavit of witnesses who have signed the agreement to sell as witnesses and also the witnesses present at the time of handing over possession to the plaintiff. That apart, the plaintiff has utterly failed to produce on record any possession slip to fortify his contention that possession was handed over by the defendant at the time of agreement to sell itself. When the very genuineness of the alleged agreement to sell is questioned by the respondent and to 18 that effect, crime has been registered against the plaintiff and one of the witnesses was arrested by the police, who stated in his statement that his signature was obtained on the blank stamp paper and he had neither witnessed any agreement to sell nor handing over of possession, the plaintiff should have placed some documents on record or at least affidavits of the witnesses to strengthen his contention. In absence of any document or affidavit of the witnesses, in my opinion, the trial Court has reached at the correct conclusion. It is true that the unregistered agreement to sell can be relied for the collateral purpose, however, substantive provisions of the Bombay Stamps Act and more particularly, section 34 and Schedule I, Article 25, Explanation I, cannot be given go by. 10. The other findings recorded by the trial Court are not perverse. On considering the 19 case of the appellant in the light of the affidavit-in-reply filed by the respondent, as concluded by the trial Court, the plaintiff has utterly failed to establish prima facie case to show his possession and further seek relief restraining the defendant, who is true owner of the suit property, from creating third party right, in my opinion, no case is made out to interfere in the impugned order. 11. In the result, Appeal From Order is dismissed. Civil Application stands disposed of in view of disposal of appeal from order. At this stage, there is prayer by the Counsel for the appellant to continue the interim order granted by this Court on 7th July, 2010 for further four weeks. The prayer is reasonable. Interim order dated 7th July, 2010 to remain in operation till 19th November, 2010. [ S.S. SHINDE ] JUDGE. Kadam/*