Gujarat High Court
Lh Of Decd Vaghri Lasiben Wd/O ... vs Patel Sharadbhai Naranbhai on 16 October, 2025
NEUTRAL CITATION
C/SA/397/2025 JUDGMENT DATED: 16/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 397 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 397 of 2025
With
R/SECOND APPEAL NO. 398 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 398 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER sd/-
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Approved for Reporting Yes No
✔
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LH OF DECD VAGHRI LASIBEN WD/O VECHATBHAI JENABHAI & ORS.
Versus
PATEL SHARADBHAI NARANBHAI & ORS.
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Appearance:
JIGNESHKUMAR M NAYAK(8558) for the Appellant(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6,1.7,1.8
MR DHRUV M PAREKH(12293) for the Respondent(s) No. 1
MR MA PAREKH(1088) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 16/10/2025
ORAL JUDGMENT
1. The present Second Appeals are filed under Section 100 of the Code of Civil Procedure, 1908, (for short "the Code") challenging the judgment and decree passed by the Additional District Judge, Kalol in Regular Civil Appeal No.33 of 2018, dated 31.07.2025, whereby the District Court allowed the appeal filed by a defendant no.7 and directed the appellant to handover the possession of the suit property, within two Page 1 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:42 IST 2025 NEUTRAL CITATION C/SA/397/2025 JUDGMENT DATED: 16/10/2025 undefined months from the date of the order of the appeal. The Regular Civil Appeal No.33 of 2018 was filed by the original defendant no.7 whereas, Regular Civil Appeal No.35 of 2018 was filed by the original plaintiff nos.1/1 to 1/9.
2. Both the appeal arises out of the judgment and decree passed by the Principal Senior Civil Judge, Kalol in Regular Civil Suit No.215 of 1995, whereby the suit filed by the plaintiffs came to be partly allowed and the counterclaim filed by the defendant no.7 was also partly allowed.
3. For the sake of brevity and convenience, the parties are referred to as per their original status as that in the suit.
4. The brief facts arising in the present Second Appeals are that the plaintiff filed Civil Suit No.215 of 1995, for the reliefs to declare that the plaintiffs are independent owners and in possession of the suit premises and to restrain the defendants, their servants, agents and their power of attorney holders from taking away the possession of the suit property and to disturb the defendants from occupying the suit premises and to restrain the defendants from entering the suit premises. The defendants appeared in the said suit and vide Exhibit 199, the defendant no.7 filed counterclaim to declare that pursuant to the saledeed executed by defendant no.2, in favour of Page 2 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:42 IST 2025 NEUTRAL CITATION C/SA/397/2025 JUDGMENT DATED: 16/10/2025 undefined defendant no.7, which has been registered on 14.12.1993, the defendant no.7 has become the owner of the suit property and to declare that defendant no.7 is in legal possession of the suit premises and alternatively, if the Court holds that the plaintiff is in possession of the suit property to direct the plaintiffs to handover the peaceful and vacant possession of the suit property to defendant no.7. The Trial Court framed issues vide Exhibit-25 as under:-
"(1) Whether the Plaintiff proves that the property admeasuring 0-83-24 in Block/Survey No. 236 of mouje Vadshar sim is under his ownership, possession, and enjoyment?
(2) Whether the Plaintiff proves that he is in lawful possession and enjoyment of the suit property?
(3) Whether the Plaintiff proves that the Defendant intends to snatch away possession unlawfully?
(4) Whether the Plaintiff is entitled to the reliefs sought?
(4-A) Whether the Defendant No. 7 proves that they have purchased the suit land lawfully from Defendant No. 2 vide Registered Sale Deed No. 2690 dated 14/12/93 and on that basis, they are the independent owner and occupant of the suit land?
(4-B) Whether the Defendant No. 7 proves that they are entitled to the reliefs claimed in Para-3 of the Counter Claim at Exhibit-199?
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5. The plaintiff examined himself vide Exhibit-29 and the witnesses of the plaintiff were examined vide Exhibits-83, 86 and 217. The defendant examined himself, vide Exhibit 208 and after considering the oral evidence and the documentary evidence and giving finding on all the issues, the Trial Court partly allowed the said suit and held that the plaintiffs are in possession of the suit property and with respect to the counterclaim filed by the defendant vide Exhibit 199, the same was also partly allowed and the Court declared that defendant no.7 is the owner of the suit property and granted injunction in favour of the plaintiff and against the defendant, not to take possession of the suit property from the plaintiffs and to cause disturbance to the plaintiff's possession of the suit property without due process of law. The said order, whereby the Court held the defendant to be the owner of the property and the counterclaim filed by the defendant, whereby, the relief seeking possession of the suit property was challenged by the plaintiff and the defendant by filing Regular Civil Appeal no.33 of 2018 and Regular Civil Appeal No.35 of 2018 and after reappreciating the evidence, the First Appellate Court Page 4 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:42 IST 2025 NEUTRAL CITATION C/SA/397/2025 JUDGMENT DATED: 16/10/2025 undefined allowed the Regular Civil Appeal No.33 of 2018, whereby the counterclaim seeking possession of the property was rejected and the Regular Civil Appeal No.35 of 2018 filed by the plaintiff was rejected and the First Appellate Court held and declared that defendant no.7 is the owner of property and directed the plaintiffs to handover the peaceful possession of the suit property, within two months from the date of the judgment, hence the present Second Appeal.
6. The learned advocate for the plaintiff has mainly argued that the plaintiff is in possession of the suit property for the last more than 37 years and the defendants have executed a sale deed in favour of defendant no.7 without considering the right of possession of the plaintiff and the Trial Court and the First Appellate Court has not taken into consideration the fact that the plaintiff is in legal possession of the property, since more than 37 years and though the defendants have executed an agreement to sell in favour of the plaintiff, after receiving sale consideration, the defendants have not complied with the said agreement and have not executed a sale deed in favour of the plaintiff. It has also been argued by the learned advocate for the plaintiff that the First Appellate Court has not complied with the provisions of Order 41, Rule 31 of the Code, and therefore, the judgment that has been passed challenging the plaint, and the counterclaim have not been correctly decided Page 5 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:42 IST 2025 NEUTRAL CITATION C/SA/397/2025 JUDGMENT DATED: 16/10/2025 undefined by the First Appellate Court and therefore, the judgement and decree passed by the First Appellate Court and counterclaim are required to be quashed and set aside and present Second Appeals are required to be admitted on the following substantial questions of law:
"(i) Whether the first appellate Court has justified the setting aside the judgment of learned Civil Court dated 18.08.2018 qua declaring the present Appellants having unlawful possession of the land in questions?
(B) Whether the Id. both the courts have considered the exh. 32 of agreement dated 01.05.1988?
(C) Whether the Id. both the courts have considered the revenue taxes receipt exh. 56 to 70 paid by the present Appellants?
(D) Whether the Ld. both the courts have considered the exh. 46 panchnama drawn by the Circle Inspector, Kalol?
(E) Whether the impugned judgment and order of lower appellate court is erroneous, illegal, unjust and perverse which is contrary to facts on record?
(F) Whether lower appellate court committed serious error in overlooking the legal position and doctrine of "Settled Possession" which protects rights of the appellant and cannot be disturbed without taking record to court of law. Under the Page 6 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:42 IST 2025 NEUTRAL CITATION C/SA/397/2025 JUDGMENT DATED: 16/10/2025 undefined circumstances, the suit for injunction against the defendants/opponents was rightly allowed by the trial court which is erroneously and illegally disturbed lower appellate court?
(G) Whether lower appellate court has committed jurisdictional error in not following decision of Hon'ble Supreme Court of India reported in 2004 (1) SCC Case 769 whereby it is established that settled possession of plaintiff cannot be disturbed without taking recourse to legal proceedings and the protection against illegal action has to be granted?
(H) Whether judgment of lower appellate court is erroneous and perverse which has wrongly and erroneously interpreted evidence on record and appreciated evidence on record which is in favour of appellant?
(I) Whether lower appellate court erred in holding that appellant was interested in delay proceedings of appeal before lower appellate court?
(J) Whether lower appellate court has granted sufficient opportunity of hearing to the present appellant and whether has followed procedure required under the Code?"
7. Per contra, learned advocate for defendant no.7 has mainly Page 7 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:42 IST 2025 NEUTRAL CITATION C/SA/397/2025 JUDGMENT DATED: 16/10/2025 undefined argued that, there is no agreement which has been executed by the original owners of the suit property. The fact also remains that the defendant no.7 has purchased the suit property by a registered sale deed in the year 1993, and the said sale deed has not been challenged by the plaintiff while filing the present suit.
8. It has also been argued by the learned advocate for the defendant that the entire case of the plaintiff revolves around the fact that by way of an agreement to sell, the suit property was to be purchased by the plaintiff but the plaintiff has neither filed any suit for specific performance and if the said agreement to sell on which the plaintiff relies on which is produced vide Exhibits 32 and 33, are taken into consideration, the same have not been executed by the original owners of the property and therefore, the same cannot be considered.
9. The learned advocate for the defendant no.7, has also argued that, the First Appellate Court has decided the said matters, after taking into consideration the oral evidence and the documentary evidence produced on record and if the suit that has been filed by the plaintiff is taken into consideration, the said suit is for declaration to declare the plaintiff to be the owner of the property and the plaintiff has miserably failed to Page 8 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:42 IST 2025 NEUTRAL CITATION C/SA/397/2025 JUDGMENT DATED: 16/10/2025 undefined prove and produce any document to prove the fact that the plaintiff has become an owner of the suit property.
10. Moreover, the fact remains that there is no registered document in favour of the plaintiff to prove the fact that the plaintiff has become the owner of the property. Moreover, the defendant has purchased the suit property after paying sale consideration and by registered document, which has not been challenged by the plaintiff or the real owners of the suit property, who have executed the sale deed in favour of the defendant and therefore also, the present Second Appeals do not involve any substantial question of law and therefore, are required to be dismissed.
11. Having heard learned advocates appearing for the parties and having considered the judgment and decree passed by the Trial Court, and the judgment and decree passed by the First Appellate Court, whereby after reappreciating the evidence, the First Appellate Court has rejected the First Appeal filed by the plaintiff and allowed the Appeal filed by the defendant, pursuant to the order passed in counterclaim, Exhibit 199, the fact remains that the suit that has been filed is not for specific performance of the agreement.
12. It is trite law that an Agreement to sell holder does not have any Page 9 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:42 IST 2025 NEUTRAL CITATION C/SA/397/2025 JUDGMENT DATED: 16/10/2025 undefined right in the property. [See: Munishamappa v. M. Rama Reddy and ors., 2023 SCC Online SC 1701, Para 10, Raheja Universal Limited vs. NRC Limited, 2012(4) SCC 148]. The only right available to such agreement to sell holder is to seek specific performance of the said agreement.
13. In this regard, this Court is bound by the Judgment of the Hon'ble Apex Court in the case of Balram Singh v. Kelo Devi, MANU/SC/1241/2022 which held as follows:
"17. Having conscious of the fact that the plaintiff might not succeed in getting the relief of specific performance of such agreement to sell as the same was unregistered, the plaintiff filed a suit simplicitor for permanent injunction only. It may be true that in a given case, an unregistered document can be used and/or considered for collateral purpose. However, at the same time, the plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a suit for substantive relief, namely, in the present case the relief for specific performance. Therefore, the plaintiff cannot get the relief even for permanent injunction on the basis of such an unregistered document/agreement to sell, more particularly when the defendant specifically filed the counter-claim for getting back the possession which was allowed by the learned trial Court. The plaintiff cleverly prayed for a relief of permanent injunction only and did not seek for the substantive relief of specific performance of the agreement to sell as the agreement to sell was an unregistered document and therefore on such unregistered document/agreement to sell, no decree for specific performance could Page 10 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:42 IST 2025 NEUTRAL CITATION C/SA/397/2025 JUDGMENT DATED: 16/10/2025 undefined have been passed. The plaintiff cannot get the relief by clever drafting.
14. Therefore, in the present case, when there was a cause of action (according to the averments of the Plaint) a cause for seeking specific performance, the Plaintiff omits not to do the same and seeks a suit simpliciter for declaration and permanent injunction on the basis of agreement to sell, the same is impermissible. This is because, no cause of action for seeking permanent injunction in absence of specific performance can be said to have arisen.
15. This Court in Devesh Metacast (supra) has held as follows:
6.1 In view of the above admitted positions, the first point that has to be seen is that the Plaintiff is relying on Banachitthi which is not a registered Banachitthi and the fact also remains that the suit that has been filed by the Plaintiff is not for specific performance of a contract. Therefore, the fact remains that whether the suit that has been filed by the Plaintiff will be protected under the proviso of Section 49 of the Registration Act which reads as under:
"49. Effect of non-registration of documents required to be registered.
- No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882),] [Added by Act 21 of 1929, Section
10.] to be registered shall
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or Page 11 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:42 IST 2025 NEUTRAL CITATION C/SA/397/2025 JUDGMENT DATED: 16/10/2025 undefined
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
[Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the [Specific Relief Act, 1877] [A of the Transfer of Property Act, 1882 (4 of 1882)" omitted by Act 48 of 2001, Section 6 (w.e.f. 24.9.2001).] or as evidence of any collateral transaction not required to be effected by registered instrument.] 6.2 In view of Section 49 of the Registration Act the Court can receive the evidence of a contract in a suit for specific performance or as evidence of any collateral transaction. The fact also remains that the suit that has been filed is with respect to a right which the Plaintiff claims having arisen by way of Bana-chitthi that is executed on 31.07.2006 and till filing of the present suit, the Plaintiff has not claimed any right for specific performance and the suit that has been filed is on a document which is required to be registered as per Section 17 of the Registration Act, therefore as the document on which the Plaintiff relies is unregistered document, no right will arise to the Plaintiff to rely on the said document i.e. Bana-chitthi as the suit is not for specific performance of a contract but only seeking permanent injunction and not for specific performance.
6.3 Therefore, the question is whether or not the Plaintiff can seek permanent injunction on basis of Page 12 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:42 IST 2025 NEUTRAL CITATION C/SA/397/2025 JUDGMENT DATED: 16/10/2025 undefined an unregistered Agreement to Sell? In view of the well settled law, the answer to the said question is in the negative.
6.4 Hon'ble Apex Court in Balram Singh v. Kelo Devi (supra), was dealing with a similar situation. It has been held that if the Plaintiff files suit simplicitor for permanent injunction and does not seek substantive relief of specific performance for agreement to sale which is an unregistered document, on such unregistered document i.e. agreement to sale, no decree for permanent injunction could have been passed.
...
6.5 It is therefore clear that no decree for permanent injunction can be granted on basis of an unregistered agreement to sell, especially where a prayer for specific performance has not been sought.
6.6 The Plaintiff cannot be permitted to achieve indirectly, what it cannot achieve directly.... 6.8 The Plaintiff having not filed a suit for specific performance, and in absence of any averment made in the Plaint as regards the readiness of the Defendant to execute the sale deed, cannot seek permanent injunction since the Plaintiffs are very well aware that the Defendant has already cancelled the Bana-chitthi and have refused specific performance of the Bana-chitthi.
6.9 Therefore, the Plaintiff does not have any cause of action to sue the Defendant for permanent injunction and declaration, on basis of an unregistered agreement to sell without having sought specific performance thereof. Hence, the Plaint does not disclose a cause of action and is liable to be rejected under Order VII Rule 11 (a) on Page 13 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:42 IST 2025 NEUTRAL CITATION C/SA/397/2025 JUDGMENT DATED: 16/10/2025 undefined this count.
16. One important aspect while considering the present suit is that whether a relief of injunction alone can be maintainable in view of Section 41(h) of the specific relief Act. The said provision, for the sake of convenience is reproduced hereinunder:
41. Injunction when refused.-- An injunction cannot be granted--
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;dded by Act 21 of 1929, Section 10.], [* * *] [The words "or as evidence of part performance of a contract for the purposes of section 53-A of the Transfer of Property Act, 1882 (4 of 1882)"
omitted by Act 48 of 2001, Section 6 (w.e.f. 24.9.2001).] or as evidence of any collateral transaction not required to be effected by registered instrument.] 6.2 In view of Section 49 of the Registration Act the Court can receive the evidence of a contract in a suit for specific performance or as evidence of any collateral transaction. The fact also remains that the suit that has been filed is with respect to a right which the Plaintiff claims having arisen by way of Bana-chitthi that is executed on 31.07.2006 and till filing of the present suit, the Plaintiff has not claimed any right for specific performance and the suit that has been filed is on a document which is required to be registered as per Section 17 of the Registration Act, therefore as the document on Page 14 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:42 IST 2025 NEUTRAL CITATION C/SA/397/2025 JUDGMENT DATED: 16/10/2025 undefined which the Plaintiff relies is unregistered document, no right will arise to the Plaintiff to rely on the said document i.e. Bana-chitthi as the suit is not for specific performance of a contract but only seeking permanent injunction and not for specific performance.
6.3 Therefore, the question is whether or not the Plaintiff can seek permanent injunction on basis of an unregistered Agreement to Sell? In view of the well settled law, the answer to the said question is in the negative.
6.4 Hon'ble Apex Court in Balram Singh v. Kelo Devi (supra), was dealing with a similar situation. It has been held that if the Plaintiff files suit simplicitor for permanent injunction and does not seek substantive relief of specific performance for agreement to sale which is an unregistered document, on such unregistered document i.e. agreement to sale, no decree for permanent injunction could have been passed. ...
6.5 It is therefore clear that no decree for permanent injunction can be granted on basis of an unregistered agreement to sell, especially where a prayer for specific performance has not been sought.
6.6 The Plaintiff cannot be permitted to achieve indirectly, what it cannot achieve directly.... 6.8 The Plaintiff having not filed a suit for specific performance, and in absence of any averment made in the Plaint as regards the readiness of the Defendant to execute the sale deed, cannot seek permanent injunction since the Plaintiffs are very well aware that the Defendant has already cancelled the Bana-chitthi and have refused specific Page 15 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:42 IST 2025 NEUTRAL CITATION C/SA/397/2025 JUDGMENT DATED: 16/10/2025 undefined performance of the Bana-chitthi.
6.9 Therefore, the Plaintiff does not have any cause of action to sue the Defendant for permanent injunction and declaration, on basis of an unregistered agreement to sell without having sought specific performance thereof. Hence, the Plaint does not disclose a cause of action and is liable to be rejected under Order VII Rule 11 (a) on this count.
17. One important aspect while considering the present suit is that whether a relief of injunction alone can be maintainable in view of Section 41(h) of the specific relief Act. The said provision, for the sake of convenience is reproduced hereinunder:
41. Injunction when refused.-- An injunction cannot be granted--
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
18. It is pertinent to be noted that the language of the Section is that a declaration and injunction cannot be granted when any equally efficacious relief can certainly be obtained by other usual mode of proceeding. In the present case, and equally efficacious, relief could be obtained by the Plaintiff by seeking specific performance of the unregistered agreement to sell, which was being relied upon by the Plaintiff in the present proceedings. However, the same having not been sought, a prayer for declaration based on unregistered Page 16 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:42 IST 2025 NEUTRAL CITATION C/SA/397/2025 JUDGMENT DATED: 16/10/2025 undefined agreement and simple injunction cannot be maintained in the eye of law, and in view of the ratio of Hon'ble Apex Court laid down in the case of Balaram versus Kelo Devi (supra).
19. The Punjab and Haryana High Court in Jasmer Singh and Ors. v.
Kanwaljit Singh and Ors., 1990 SCC Online P&H 650 held as follows:
4. ...
An injunction cannot be granted, if equally efficacious relief can certainly be obtained, by any other usual mode of proceeding. An injunction will not be granted where an adequate relief by way of damages is available. The vendees having a contract for sale in their favour have the equally efficacious remedy by suit of specific performance, their suit for injunction to restrain the vendors from selling the property to others is not maintainable.
20. Moreover, Bombay High Court in Hussain Khan v. Ahmed, 1988 4 Bom CR 60 held as follows:
In the light of these decisions, I am of the opinion that the suit filed simpliciter for injunction where the claim is funded purely to claim to protection under section 53-A is not maintainable, and such a suitor is not entitled to claim relief in view of the provision of section 41(h) of the Specific Relief Act. Such a suitor should not be usually granted injunction
21. The only question falling for consideration of this Court in the said respect is that in the present case, the Plaintiff has pleaded that it Page 17 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:42 IST 2025 NEUTRAL CITATION C/SA/397/2025 JUDGMENT DATED: 16/10/2025 undefined was in possession of the suit property. Hence, is there a cause of action therefore, disclosed for seeking declaration and injunction simpliciter? The answer to the said question, in opinion of this Court is in the negative.
22. This is for a simple reason. If the Plaintiff is seeking a relief of protection of possession on the strength of an Agreement to Sell, it is claiming the benefit by operation of Section 53A of the Transfer of Property Act, 1882 ("TP Act"). However, the benefit of Section 53A of the TP Act is not available to an Unregistered Agreement to sell holder.
23. Section 17(1A) of the Registration Act is reproduced hereinunder:
(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 (48 of 2001) and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.
24. Therefore, for the purposes of Section 53A and claiming any benefit thereunder, an unregistered agreement to sell can give birth to no right. This has also been recognized and elaborated by the Hon'ble Apex Court in Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, (2018) 7 SCC 639 as follows:
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10. On a plain reading of this provision, it is amply clear that the document containing contract to transfer the right, title or interest in an immovable property for consideration is required to be registered, if the party wants to rely on the same for the purposes of Section 53-A of the 1882 Act to protect its possession over the stated property. If it is not a registered document, the only consequence provided in this provision is to declare that such document shall have no effect for the purposes of the said Section 53-A of the 1882 Act. The issue, in our opinion, is no more res integra. In S. Kaladevi v.
V.R. Somasundaram [S. Kaladevi v. V.R. Somasundaram, (2010) 5 SCC 401 : (2010) 2 SCC (Civ) 424] this Court has restated the legal position that when an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received as evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the 1908 Act.
25. Therefore, an unregistered agreement to sell cannot be used to protect the possession of the property, which the Plaintiff claims to have received in part performance of the Agreement. Hence, on this count also, it cannot be said that the suit is maintainable.
26. Naturally, an unregistered Agreement to sell can be used for evidence to prove contract in a suit for specific performance. However, the present suit is not filed for specific performance and hence, the unregistered Agreement will be of no help to the Plaintiff.
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27. In view of the foregoing and in view of the ratio as laid down by the Hon'ble Apex Court in Balram v. Kelo Devi (supra), it is held that a suit by an Unregistered Agreement to Sell holder for permanent injunction only without seeking specific performance is not maintainable as it does not disclose a cause of action thereof. Further, if the suit is for protection of possession, an unregistered Agreement to sell will not give rise to any right for protection thereof and hence, the same also cannot be maintained.
28. Recently the Hon'ble Apex Court in the case of Mahnoor Fatima Imran and Ors. v. M/s. Visweswara Infrastructure Pvt. Ltd, held (in regards to an Unregistered Agreement to sell holder, while reversing the Division Bench's Order by which protection from dispossession had been granted) as under:
"As far as the writ petition praying for a direction not to dispossess, we find that the writ petitioners to have not established a valid title. We prima facie find the title to be suspect, which would disentitle them from claiming a rightful possession, which also has not been proved."
29. In the case of Jaichand (Dead) through Lrs and Other v. Sahnulal and Another reported in 2024 SCC OnLine SC 3864, the Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section 100 CPC, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is Page 20 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:42 IST 2025 NEUTRAL CITATION C/SA/397/2025 JUDGMENT DATED: 16/10/2025 undefined the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence."
30. Under the circumstances, these Second Appeals are devoid of any substantial question of law. First Appellate Court has rightly decided the issue between the parties in the right perspective and as stated above no substantial question of law arises in the appeals. The appellant has failed to prove his case before the First Appellate Court. This Court does not find any substance in the present Second Appeals as the same are devoid of any merit both on facts and law and the same is dismissed at admission stage.
sd/-
(SANJEEV J.THAKER,J) URIL RANA Page 21 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:42 IST 2025