IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY SEVNTH DAY OF SEPTEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE P.SWAROOP REDDY CMA NO.528 OF 2010 Between: Kancharapu Sri Padma, W/o. Srinivas Apparao ..... APPELLANT AND 1 Medepali Buchi Raju alias Biksha Raju & others .....RESPONDENTS THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE P. SWAROOP REDDY CMA No.528 of 2010 JUDGMENT: ( per Hon’ble Sri Justice Ghulam Mohammed ) This appeal is filed by the plaintiff in suit OS No.4 of 2010 and the suit was filed for specific performance of an agreement dated 9-7-2009 reportedly containing an understanding that regular lease deed for pisci culture would be executed after handing over the entire leased area of Ac.29-00 in RS No.579/2B, 579/3B and 656/2 situate at hamlet of Illaparru Grampanchayat, Maidan Venkatapuram village of Nandivada mandal, Krishna District. The plaintiff-appellant herein filed the IA No.24 of 2010, under Order 39, Rules 1 and 2 and Section 151 CPC seeking temporary injunction restraining the respondents and their men from interfering with her peaceful possession and enjoyment of plaint ‘C’ schedule fish tanks marked as P, P-1 and P-2 in the plaint plan, pending disposal of the suit. By the impugned order, the Court below dismissed the IA holding that there is no prima facie case in favour of the appellant. Hence this appeal by the plaintiff. 2. Learned counsel for the appellant strenuously contended that though the suit document dated 9-7-2009 is an un-registered document, it can be looked into for collateral purpose. According to the learned counsel there is a recital in the suit document that possession of the land in question was delivered to the plaintiff and this aspect of the matter missed the attention of the trial Court. Learned counsel also stated that there is no clear finding as to who is in possession of the land in question. On the other hand, learned counsel for the respondents contended that the trial Court rightly refused temporary injunction as the suit document requires registration and the lease period is more than one year. It is contended that when once a document is compulsorily registerable, if not registered, it cannot be looked into. 3. We have heard the learned counsel for the parties and also perused the impugned order passed by the trial Court. 4. Admittedly, the execution of the suit document is not denied by the parties. The case of the plaintiff is that possession of the suit land is delivered and there is a recital to that effect in the suit document. The decision in ANCHURU VEERAPA NAIDU VS. GURIJALA VENKAIAH CHOWDARI relied on by the learned counsel for the appellant, the Division Bench of this Court at para 9 observed thus:- “9. The other point raised is that since the document on its very recitals is a complete document of conveyance falling within the ambit of Section 17 of the Registration Act, it cannot be used in evidence of the transaction affecting immovable property and the action of specific performance also cannot be founded thereon. But proviso to Section 49 says that even such an unregistered document may be received as evidence of a contract in a suit for specific performance. This proviso has been introduced by the "transfer of property (Amendment) Supplementary Act, 1929 as a result of the decision of the Privy Council in James Skinner v. R. H. Skinner (AIR 1929 PC 269 ). Prior to this amendment, the judicial opinion in this behalf has not been uniform…..” “The matter came up before the Full Bench in Subramanian Chettiar v. Arunachalam Chettiar,1943-2 Mad LJ 424: (AIR 1943 Mad 761 ). Therein on the terms of the proviso to Section 49 it was held that an unregistered document affecting immovable property may be put in evidence in a suit for specific performance and that if the document so produced embodies the whole agreement between the parties, it is sufficient to support the claim for specific performance. The observations in 1938-2 Mad LJ 362: (AIR 1938 Mad 801) were dissented from on the ground that the decisions which preceded the introduction of the proviso to Section 49 no longer had any application. It is thus clear that on the language of the proviso, an unregistered document affecting immovable property, in spite of want of registration, can be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act. Judged in that manner, the Plea that the document in inadmissible in evidence or that in order to render it admissible, steps should have been taken for its registration by following the procedure in the Registration Act, is of no avail.” 5. The latest decision of the Supreme Court in S.KALADEVI VS. VR SOMASUNDARAM (AIR 2010 SC 1654) is also to the effect that an unregistered document affecting immovable property and requiring registration, may be received as evidence to the contract in a suit for specific performance or as evidence of any collateral transaction. Moreover, in an application for temporary injunction, prima facie, finding is to be arrived at as to who is in possession of the suit land. There is no finding recorded by the trial Court as to who is in the possession of the suit land. 6. In the circumstance, the impugned order is set aside and the matter is remanded to the lower Court for fresh consideration. The lower Court shall give a finding as to who is in possession of the suit schedule property and dispose of the interlocutory application on that basis. The validity and admissibility etc., of the agreement dated 9-7- 2009 shall be decided during trial. Once again, we make it clear that the said interlocutory application has to be disposed of by giving a finding with regard to possession. 7. In the result, the CMA is disposed of accordingly. No costs. ________________________ Ghulam Mohammed, J _______________________ P. Swaroop Reddy, J Dated: 27th September, 2010 Nrg. THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE P. SWAROOP REDDY CMA No.528 of 2010 JUDGMENT: ( per Hon’ble Sri Justice Ghulam Mohammed ) 27-9-2010