1 AO 163/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.163 OF 2011 with CA/11329/2011 PARMANAND SHANKARLAL JOSHI AND ANR VERSUS MALATI MADHAVRAO DESHMUKH AND ANR ... Advocate for Appellants: Mr. PS Paranjape, Adv. h/for Mr. Venjane Tukaram M. Advocate for Respondents 1 & 2 : Mr.VP Golewar --- CORAM : K.U.CHANDIWAL, J. DATE : 21st NOVEMBER, 2011. PER COURT : 1) Heard learned Counsel for the respective parties extensively and finally. 2) In a suit for specific performance of contract, being Special Civil Suit No.110/2011, an application was moved below Exhibit-5 by the plaintiffs/appellants, seeking injunction to protect their possession over the suit property, rejection thereof by the learned 3rd Joint Civil Judge, Senior Division, Latur by order dated 23rd September, 2011, is questioned in the Appeal from Order. 3) One Sunil Deshmukh claimed to be owner 2 AO 163/2011 and possessor of 3 acres and 26 gunthas in Gut No.221. During his life time, he entered into an agreement of sale with plaintiffs/appellants dated 11.2.2009 and an amount of Rs.20,00,000/- (Rupees twenty lakhs) was paid by the plaintiffs/appellants to said Sunil. Said Sunil expired on 7th September, 2009 and the Respondent Nos.1 and 2 arrayed as legal representatives – mother and sister of deceased Sunil. 4) Mr.Paranjape, learned Counsel for the appellants/plaintiffs, canvassed that, possession of the property, agreed to be purchased, was handed over to the appellants as it recited in the document. Consequently, import of Section 49 of Registration Act, and particularly proviso thereof would come to the rescue of the plaintiffs/appellants to read the document in evidence for collateral purposes. The possession of the plaintiffs is, according to him, substantiated by two independent persons by affidavits, who are adjoining owners. 5) The learned counsel invited my attention to paragraph 8 of the order of the learned Judge, wherein he has referred about production of 7/12 extracts for the years 2009-2010 and 2010-2011 by the plaintiffs. Learned Counsel accepts, these 3 AO 163/2011 revenue records do not support the plaintiffs. 6) It is canvassed, the document of agreement of sale would be required to be attended to, even for collateral purposes. 7) There cannot be any quarrel to the proposition, as canvassed by the learned Counsel, supported by the judgment of the Hon’ble Supreme Court in the matter of S. Kaladevi Vs. VR Somasundaram & Ors - 2010 DGLS (Soft) 201. 8) The situation in hand, would not be available to the plaintiffs to seek applicability of proviso to Section 49 of the Registration Act, 1908, as it was the stage of evidence and the document is to be used for collateral purpose. Here the evidence is yet to commence, the documents are to be seen, as and by way of primary evidence. If the plaintiffs had indeed acquired possession of the property by virtue of agreement of sale, there was no injunction for them to get their possession recorded/mutated in the revenue record. The 7/12 extracts, as stated earlier, do not support them. That apart, the revenue record itself illustrate that vendor of the plaintiffs was not exclusive owner of the property as it was a joint Hindu family property. The pedigree, that has been given by the 4 AO 163/2011 respondents, indicates that one Madhavrao was owner of the property, who expired on 1st March, 1996, leaving behind him Maltibai (widow), son Sanjay (expired on 21.6.1995), another son Sunil, who entered into the agreement, (died on 7th September, 2009) and Manda, a daughter to the couple – Madhavrao and Malatibai. 9) Since Sanjay expired before death of Madhavrao, naturally, the property could not be inherited by Sanjay. However, Sunil, as stated earlier, could not independently transact in respect of the property owned by Malatibai and Manda with him. He was not, from the record, in independent possession or enjoyment of the property. This is even clarified by the learned Judge in the order under challenge. 10) Considering these aspects of the matter, I do not see any error on the part of the learned Judge in refusing to entertain request of injunction as claimed by the plaintiffs/appellants. 11) The learned Counsel for the respondents has given reference to development agreement entered on 12th November, 2010 for 1 hectare and 39 R. land, which is a registered document, which recites of handing over possession to the said 5 AO 163/2011 developer and the said developer has erected structures or row-houses therein. Learned Counsel for the respondent also submits that the suit is belatedly filed on 30th April, 2011 when already there was possession of the developer handed over by the respondents. These aspects, as are emerging on the record, cannot also be obliterated, which deflated the contentions raised by the plaintiffs to be in possession of the property based merely on so-called agreement of sale executed by Sunil, who was referred by the respondents to be in addiction. 12) In the result, the order under challenge does not call for any interference. The Appeal from Order with CA dismissed. (K.U.CHANDIWAL) JUDGE bdv/