{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 77 OF 2009 1. Deelip s/o Shantilal Chabada Age-46 years, Occ-Business R/o Raja Bazar, In front of Jain Mandir Aurangabad 2. Deelip s/o Shantilal Kasliwal Age-46 years, Occ-Business R/o Chelipura, Aurangabad 3. Pawan s/o Babulal Pande Age-43 years, Occ-Business R/o New Balaji Nagar, Aurangabad 4. Vinod s/o Kasandas Joshi Age-47 years, Occ-Business R/o Top Secret, Aurangpura Aurangabad APPLICANTS VERSUS Smt.Sushilabai Rajaram Kakade Age-56 years, Occ-Household & Agri R/o Waluj, Tq-Gangapur Dist-Aurangabad RESPONDENT ....... Mr. V.I.Thole, Advocate for applicants Mr. H.H.Padalkar, Advocate for respondent ....... [CORAM : A.V.POTDAR, J.] DATE: 19th March 2010 ORAL JUDGMENT: 1. Rule. Rule made returnable forthwith. By consent of {2} the learned counsel for the parties heard finally. 2. Being aggrieved by the order of rejection of application below Exhibit-5 in special Civil Suit No.523/2008 dated 16.06.2009, the appellants-plaintiffs have preferred the present appeal from order. 3. Admittedly, appellants have preferred a suit for specific performance in respect of land admeasuring 2 Hectare 25 R out of 3 Hectare 95 R from Gut No.264 situated at Waluj, Tq-Gangapur, Dist-Aurangabad. Vide agreement to sale dated 04.06.2007, the said land was to be sold by the respondent to the appellants for the consideration of Rs.6,90,000/ per acre and the total consideration for the land to be sold was Rs.38,81,250/-. It is not disputed that Rs.6 lacs have been paid to the respondent by the appellants as an earnest money at the time of execution of agreement to sale and Rs.1 lacs were paid by two different cheques on 28.08.2007. It is alleged that Rs.15 lacs are paid to the respondent by cash on different occasions. However, though the respondent has admitted payment of 7 lacs, yet she has disputed the payment of Rs.15 lacs. It is alleged that the appellants are ready to perform their part of contract, but the respondent-defendant, with an ulterior motive, does not want to perform her part of contract in view of rising prices of lands. It is alleged that the respondent, in collusion with her son, has filed a suit for partition and possession and declined to perform her part of the contract. Therefore, the appellants have moved the suit and application for interim injunction with a prayer {3} not to dispossess the appellants from the part of land on which the appellants are put in possession. 4. It appears from the written statement and say filed on Exhibit-5 that the respondent has not disputed 5 clauses, except the clause of handing over of the possession to the appellants. Very surprisingly, when the execution of the document is not disputed and only a part of the contents of the document are disputed by the respondent which is against the settled norms of denial or admission of document. The document either to be admitted as a whole or denied as a whole and not in a piece mil. 5. In this light my attention is drawn to the order passed by the trial court while refusing the interim injunction. The trial court has very cursorily and cryptically observed in para No.3 of the order dated as the attesting witnesses are not examined or their affidavits are not filed, it cannot be held that the contents of the documents prima facie stand proved. Learned trial court has overlooked the fact that the if the document is admitted by the defendant then it is not necessary for the appellants to file affidavit of attesting witnesses. 6. The next question arose is that if the possession is handed over at the time of entering into agreement to sale, the document requires to be compulsorily registered. At the same time as per section 49 of the Registration Act, if the document required {4} compulsory registration but not registered then the same can be used for collateral purpose. The document which was not initially registered, appears to be impounded either by the order of Court or otherwise. The fact remains that the agreement to sale was later on registered, as impounded. In the premise, considering the facts admitted in the written statement, the order of trial court requires interference. 7. In the result, the appeal from Order succeeds. The order dated 16.06.2009 passed below Exhibit-5 in Special Civil Suit No.523/2008, is hereby quashed and set aside. Application filed by the appellants-plaintiffs, below Exhibit-5 for temporary injunction in special civil suit No.423/2008 is hereby allowed. The defendant is restrained from interfering with the possession of the appellants-plaintiffs till final disposal of the suit. Appeal from order stands disposed of accordingly. 8. Rule is thus, made absolute accordingly. 9. Hearing of the Special Civil Suit No.523/2008 is expedited. [A.V.POTDAR, J.] drp/A10/ao77-09 {5} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.7104 OF 2009 IN APPEAL FROM ORDER NO. 77 OF 2009 Deelip s/o Shantilal Chabada & others APPLICANTS VERSUS Smt.Sushilabai Rajaram Kakade RESPONDENT ....... Mr. V.I.Thole, Advocate for applicants Mr. H.H.Padalkar, Advocate for respondent ....... [CORAM : A.V.POTDAR, J.] DATE: 19th March 2010 ORAL JUDGMENT: 1. As the Appeal From Order No.77/2009 is disposed of, the present civil application does not survive and hence stands disposed of accordingly. [A.V.POTDAR, J.] drp/A10/ao77-09