1 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1173 OF 2009 ALONGWITH CIVIL APPLICATION NO.1454 OF 2009 Kiritkumar Jaipal Chougule .. Appellant V/s. Kamal Sidgonde Patil & Ors. .. Respondents Mr. Prajakt M. Arjunwadkar for the Appellant. Mr. Vijay Killedar for Respondent Nos. 1 to 4. CORAM : J. H. BHATIA, J. DATE : MARCH 22ND, 2010. P.C. : Heard the learned counsel for the parties. 2. The Plaintiff/Appellant claims that he had entered into an agreement to purchase the Gut No. 777/3/A to the extent of 1 Hectare from the Defendant/Respondent No.1 for considerations of Rs. 7 lakhs, out of which amount of Rs. 2 lakhs was paid on or before 14th May, 2008, when the agreement for sale was executed. According to him possession of whole of 2 1 H land was given to him at the time of agreement. He also contended that from time to time balance amount was also paid upto 29th January, 2009. On 6th February 2009, he got a registered sale deed executed from Defendant No. 1 in respect of northern 60 R portion of the land. He filed suit for specific performance of contract in respect of remaining 40 R from southern side. He claims that he is in possession of that area also, however, the Defendant No. 1 has created 3rd party interest by entering into the contract with the Defendant Nos. 2 to 4. By filing an application, he claimed temporary injunction restraining the Defendants from creating any obstruction in his possession over the suit land i.e. the southern side 40 R land. 3. The Defendant No.1 admitted to have executed the agreement for sale. However, according to him, it was not the real transaction. Father of the Plaintiff is a money lender and from time to time the amounts were advanced by him. The document purported to be agreement for sale was executed only as a security of the loan. He admitted to have executed the sale deed in respect of northern side 60 R land. He denied that the suit land admeasuring 40 R from southern side was ever in possession with the Plaintiffs. 3 4. The Trial Court rejected the application of the Plaintiff on two grounds. Firstly, that the agreement for sale is not sufficiently stamped and registered. Secondly, the Plaintiffs has come with conflicting stand about the possession. As far as the first ground is concerned, it is difficult to subscribe the view taken by the Trial Court. Agreement for sale does not require to be registered but a sale deed or conveyance deed is required to be compulsorily registered under the provisions of Transfer of Properties Act as well as section 17 of the Registration Act. The suit is based on the agreement for sale dated 14th May, 2008, and not on any conveyance deed. 5. Even though in the agreement dated 14th May, 2008, it is mentioned that the possession of the 1 H land, which was subject matter of the agreement was given, in the sale deed dated 6th February, 2009, it is mentioned that actual possession of the 60 R land was given to the Plaintiff on that day. The sale deed does not refer to the agreement for sale for 1 Hectare land. It also does not show that the possession of the land was already given to the Plaintiff at the time of executing the agreement for 4 sale. It also does not show that remaining 40 R land was also in possession of the Plaintiff when the said sale deed was executed. It is also material to note that as per the agreement, the total consideration of 1 H land was Rs. 7 lakh, and according to the Plaintiffs whole of the consideration amount was paid on or before 29th January, 2009. It is surprising that inspite of having paid entire consideration amount, on 6th February, 2009 the Plaintiff did not get the sale deed of complete 1 H land but, got the sale deed in respect of 60 R land only. Even though the Plaintiffs tried to explain this, the explanation does not appears to be plausible at least prima facie. 6. In these circumstances, I do not find any fault with the finding of the Trial Court that the Plaintiffs had failed to prove his actual possession on the suit land admeasuring 40 R. Therefore, injunction to protect his possession over the suit land could not be granted. At the same time as the suit is for specific performance of the contract as an execution of agreement for sale is admitted, it is be necessary to give some protection. 7. For the aforesaid reasons, the Appeal is dismissed. 5 However, the Defendants are directed not to create any further third party interest in respect of the suit land. The transfer of property in favour of Defendant Nos.2 to 4 by Defendant No.1 shall be subject to the result of the suit. 8. As the Appeal itself is finally disposed of, the Civil Application No. 1454 of 2009, does not survive and stands disposed of accordingly. (J. H. BHATIA, J.)