ao80.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. APPEAL FROM ORDER NO. 80 OF 2011 With CA/5814/2011 In AO/80/2011 PRAKASH RANGNATHAPPA KATKAR ...APPELLANT. VERSUS VITTHAL BHIMRAO KALE AND ANR ...RESPONDENTS. ... Advocate for Petitioner(s) : Mr. Palod L.B. Advocate for Respondent(s) : Mr. Nirkhee S.S. for R/1 ... CORAM : S.S. SHINDE,J. 30th AUGUST, 2011. PER COURT: 1. This appeal from order has been filed challenging the judgment and order dated 19th March, 2011 passed by the C.J.S.D., Jalna below Exh.5 ao80.11 2 in Special Civil Suit No.4/2011. 2. The learned Counsel appearing for the appellant submits that the appellant sought permission u/s 50B of the Hyderabad Tenancy & Agricultural Lands Act, 1950 (for short, referred to as the said Act) and thereafter, sale deed was executed, possession was handed over to the appellant, and the title is in favour of the appellant. Such a sale deed has been executed after payment of necessary fees. The trial Court has not considered all these aspects. The learned Counsel for the appellant invited my attention to para 9 of the impugned judgment and submitted that when the objection was raised by the appellant about the admissibility of the agreement of sale executed by defendant No.1 in favour of the plaintiff, the Court observed that it will be considered at proper stage. It is the contention of the Counsel for the appellant that all the relevant factors and facts should have been considered before passing the impugned order by the trial Court. He invited my attention to the fact that ao80.11 3 the agreement to sell on which the respondents herein are placing reliance is not a registered document. It is further submitted that if it is the case of the respondents that possession has been handed over to them as per the said agreement to sell, in that case, they were duty bound to register the document. However, the agreement to sell is an unregistered document. The learned Counsel invited my attention to the provisions of section 70B of the Registration Act and also the provisions of Bombay Stamps Act and submitted that the alleged agreement of sale was required to be registered. He invited my attention to section 35 of the Bombay Stamps Act under which the Court has powers to impound the document, if an application is filed by the concerned party. The learned Counsel for the appellant invited my attention to the decision of the Supreme Court in case of Avinash Kumar Chauhan vs. Vijay Krishna Mishra [2009(4) Mh.L.J. 349] and more particularly, paragraphs 12 and 21 thereof and submitted that an unregistered agreement cannot be ao80.11 4 read in evidence even for collateral purposes. The learned Counsel further invited my attention to the judgment of this Court in case of Dnyanoba Sukhdeo Lande and another vs. Shrirang Mahataraji Dhurwade [1982(2) Bom.C.R. 18] and in particular, Head Note (A) and paras 7 and 8 of the said judgment. Therefore, according to the learned Counsel for the appellant, when the appellant after seeking permission u/s 50B of the said Act has entered into an agreement to sell and sale deed has been executed and if possession is handed over to the appellant, such injunction cannot be clamped against the true owner. 3. On the other hand, the learned Counsel for respondents submitted that after taking into consideration all relevant factors, the impugned judgment and order has been passed by the trial Court. He further submits that the unregistered document can also be read in evidence for collateral purposes. He invited my attention to the fact that an ao80.11 5 application has been filed before the trial Court for impounding the document. Therefore, this Court may not interfere in the impugned judgment and order. The learned Counsel for respondents also submitted that liberty may be given to the respondents to file fresh application for temporary injunction. 4. I have given due consideration to the rival submissions of the parties. In my opinion, the trial Court is not correct in clamping injunction against the appellant. It is not in dispute that the document i.e. agreement to sell is not a registered document. It is also not in dispute that the respondents claim that they are put in possession of the suit property in pursuance to the said agreement of sale. I find considerable force in the argument of the Counsel for appellant that if it is the case of the respondents that they are put in possession of the suit property in pursuance to the agreement of sale, in that case, such agreement of sale is required to be registered. Therefore, it is an admitted possession that the ao80.11 6 agreement of sale is not a registered document. The Supreme Court in case of Avinash Kumar Chauhan (supra) has taken a view that if the agreement to sell mentions that possession is handed over, in that case, such document is required to be registered. It is also not in dispute that the sale transaction entered into by the appellant herein is after taking permission u/s 50B of the said Act. 5. In that view of the matter, in my opinion, the impugned judgment and order cannot be sustained and the same deserves to be quashed and set aside. However, the Counsel appearing for the appellant, on instructions from his client, submits that during pendency of suit the appellant will not create third party rights. 6. Therefore, for the aforesaid reasons, the appeal from order is allowed. The impugned judgment and order dated 19th March, 2011 passed by the C.J.S.D., Jalna below Exh.5 in Special Civil Suit No.4/2011, is ao80.11 7 quashed and set aside. The appeal from order as also the civil application stand disposed of, accordingly. It will be open for the parties to make a prayer before the trial Court for expeditious disposal of the suit. [ S.S. SHINDE ] JUDGE. PLK/*