Karnataka High Court
Mr.Srinivas Adhikeshavulu Dalvoi vs M/S Anushka Constructions Pvt Ltd on 21 April, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2025:KHC:16280
MFA No. 1242 of 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 21ST DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.1242 OF 2025 (CPC)
BETWEEN:
MR. SRINIVAS ADHIKESHAVULU DALVAI,
S/O LATE DK ADHIKESHAVULU NAIDU
AGED ABOUT 51 YEARS,
RESIDENT OF NO.7/21,
1ST CROSS MAIN ROAD,
RMV EXTENSION, BENGALURU - 560 080.
...APPELLANT
(BY SRI. ASHOK HARNAHALLI, SR.COUNSEL A/W
SRI. ROHAN HOSMATH, ADVOCATE)
AND:
M/S ANUSHKA CONSTRUCTIONS PVT LTD
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
NO. 100/1, CITI CENTRE,
OPPOSITE TOWN HALL,
Digitally J.C. ROAD, BENGALURU 560 002
signed by REP. BY ITS MANAGING DIRECTOR
RAMYA D
MR. AVINASH AMARLAL
Location:
HIGH ...RESPONDENT
COURT OF (BY SRI. K.G.RAGHVAN, SR. COUNSEL A/W
KARNATAKA SRI. SOURABH.R. KURUBARAHALLI, ADVOCATE)
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DT.01.02.2025 PASSED ON IA NO.4 IN
O.S.NO.9272/2024 ON THE FILE OF THE I ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH NO.2),
ALLOWING IA NO.2 FILED U/O.39 RULE 1 AND 2 OF CPC,
REJECTING IA NO.4 FILED U/O.39 RULE 4 R/W SEC.151 OF
CPC.
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NC: 2025:KHC:16280
MFA No. 1242 of 2025
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
CAV JUDGMENT
The defendant being aggrieved by the order dated 01.02.2025 passed on I.A.No.2 filed under Order XXXIX Rules 1 and 2 of CPC by the Court of I Additional City Civil & Sessions Judge, Bengaluru, in O.S.No.9272/2024, thereby, allowed I.A.No.2 granting an order of temporary injunction restraining the defendant from interfering with the plaintiff's possession over the suit schedule Item Nos.1 to 4 properties and an exparte order of temporary injunction is made absolute thereby rejecting I.A.No.4 filed by the defendant under Order XXXIX Rule 4 of CPC. Therefore, challenging the same the defendant has preferred this appeal.
2. The plaintiff has filed the suit for permanent injunction restraining the defendant from interfering with -3- NC: 2025:KHC:16280 MFA No. 1242 of 2025 the plaintiff's possession over suit Item Nos.1 to 4 properties. It is the case of plaintiff that plaintiff is the owner in possession of residentially converted and developed vacant land bearing Sy.Nos.127, 129/1B, 128/1. Having purchased the said properties by the plaintiff from its original owner - Sri.Kalikiri Subramanyam through under registered sale deeds dated 27.08.2024 and 30.11.2024 respectively and thus, claimed that the plaintiff is in possession and enjoyment of suit schedule properties. It is alleged that the defendant being stranger, having no right, title and interest over the properties, have started interfering/obstructing with the plaintiff's possession over the suit schedule lands and as such, filed the suit praying for permanent injunction.
3. The plaintiff also filed an application - I.A.No.2 under Order XXXIX Rules 1 and 2 CPC praying for an exparte ad-interim order of temporary injunction and it was granted in favour or plaintiff. Thereafter, the defendant filed an application under Order XXXIX Rule 4 of -4- NC: 2025:KHC:16280 MFA No. 1242 of 2025 CPC for vacating exparte order of temporary injunction, but the trial court has allowed the application I.A.No.2 and rejected I.A.No.4 filed under Order XXXIX Rule 4 of CPC.
4. The trial court while considering I.A.Nos.2 and 4 above stated had observed that the plaintiff has purchased the suit Item Nos.1 and 2 properties under registered sale deed dated 27.08.2024 and suit Item Nos.3 and 4 properties under registered sale deed dated 30.11.2024 and upon perusal of copies of the said sale deeds, possession of the suit properties have been handed over to the plaintiff through the sale deeds and thereafter, the plaintiff has applied to BBMP for change of khatha and accordingly, khatha has been mutated in the name of plaintiff and also the plaintiff has produced tax paid receipts in respect of said properties. Whereas, the defendant is a mere holder of agreement of sale dated 29.11.2011 and though the defendant has contended that he is in possession of the original title deeds handed over by the owner - Kalikiri Subramanyam, but the same have -5- NC: 2025:KHC:16280 MFA No. 1242 of 2025 not been produced before the trial court. Therefore, formed an opinion that the plaintiff has produced copies of the registered sale deeds, khatha extracts, tax paid receipts, whereas, it is the case of defendant that the defendant is an holder of agreement of sale, as such, found that prima facie case is in favour of plaintiff. Further the trial court has observed that defendant has not stated as to what steps he has taken to enforce the said agreement of sale dated 29.11.2011 and also there is no material before the Court to establish that whether the defendant has filed any suit for specific performance of contract. On these reasons, the trial court found that the plaintiff has made out prima facie case that he had held title by virtue of registered sale deeds and by the said sale deeds the plaintiff was put into possession and accordingly, khatha and other revenue records were mutated and he is paying taxes to BBMP. Whereas, the defendant being an unregistered agreement holder is not found in possession of the property and as such, granted -6- NC: 2025:KHC:16280 MFA No. 1242 of 2025 an order of temporary injunction as prayed for by the plaintiff.
5. Being aggrieved by it, the defendant has preferred the appeal.
6. Sri.Ashok Haranahalli, learned Senior Counsel appearing for the appellant/defendant submitted that the defendant has entered into agreement of sale with Kalikiri Subramanyam on 29.11.2011 and the defendant has paid substantial sale consideration amount of Rs.9,93,59,730/- in total for the purchase of schedule properties and the said vendor Kalikiri Subramanyam has received acknowledgement of the said amount and also handed over all the original title deeds in favour of defendant and that is mentioned in the agreement of sale dated 29.11.2011, which is produced before the trial court and this Court. He further submitted that when the entire sale consideration amount was paid, agreement for sale was executed and title has been handed over to the defendant, -7- NC: 2025:KHC:16280 MFA No. 1242 of 2025 then it is proved that the defendant is in possession but not the plaintiff. Therefore, submitted in this regard that the trial court has not appreciated the material placed by the defendant and the plaintiff has not made out prima facie case. Hence, there would not be any balance of convenience and irreparable loss or injury to the plaintiff. Therefore, the order of temporary injunction ought not to have been granted in favour of plaintiff.
7. Further, the learned Senior Counsel submitted that there was a Memorandum of Understanding (for short 'MOU') and/or Agreement, which was executed on 08.12.2021 between K. Subramanyam and defendant. As per this, the defendant has purchased properties from K.Subramanyam out of the funds and expenses provided by the defendant's company and accordingly, K.Subramanyam has entered into MOU. In the said MOU it is mentioned that defendant has paid the entire sale consideration amount to the vendor, who is K.Subramanyam and therefore, the entire sale transaction -8- NC: 2025:KHC:16280 MFA No. 1242 of 2025 was completed and the defendant was put into possession along with handing over all original title deeds with the defendant and still the defendant is not in possession of the original title deeds. Thus, the defendant had become the owner and is in possession of the suit scheduled property. The only remaining thing to be left is taking effect of registration of the sale deed, but as per Section 49 of the Registration Act, 1908 (for short 'Registration Act') said agreement of sale and MOU can be considered as collateral transaction proving that the defendant is in possession of the suit schedule property and but not the plaintiff. Thus, in this way, the plaintiff has failed to make out prima facie case of proving that plaintiff is in possession of the property, but the trial court has wrongly granted an order of temporary injunction, which is erroneous. Thus, prays to set aside the same by allowing the appeal.
8. Further the learned Senior Counsel submitted that when this being the disputed fact regarding claiming -9- NC: 2025:KHC:16280 MFA No. 1242 of 2025 possession of the property, as per the agreement of sale and MOU along with said Kalikiri Subramanyam had handed over all the original title deeds to the defendant, there is specific recital in the said documents that the defendant was put into possession and the defendant is paying taxes to the BBMP. Therefore, regarding claiming possession over property the defendant has more probability in succeeding the possession. Thus, the plaintiff has failed to make out prima facie case. Hence, the trial court ought not to have granted an order of temporary injunction against the defendant. Therefore, prays to allow the appeal.
9. The learned Senior Counsel during the course of the argument has shown the original title deeds to the Court and submitted when the defendant has received original title deeds at the time of execution of agreement of sale and MOU, thus, the defendant has made out prima facie case as the chances of succeeding in the suit more lies on the defendant. Just because sale deeds registered
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NC: 2025:KHC:16280 MFA No. 1242 of 2025 in favour of the plaintiff, that cannot prove the possession of the plaintiff over the suit schedule property. At the most, it could be said that sale deeds are registered, but possession is not handed over. Thus, questioned the impugned order.
10. Further, learned Senior Counsel submitted that the trial court has only found fault with the defendant that original title deeds were not produced before the Court while considering the application for injunction, therefore, when the said original title deeds are shown to this Court, the observation made by the trial court at para 14 is met with. Thus, the prima facie case is proved that the defendant is in possession over the property (Learned Senior Counsel has produced the original title deeds to the Court for perusal and after perusing the same, the Court has returned the said original title deeds to the learned Senior Counsel).
11. The learned Senior Counsel in support of the above stated arguments has placed Memo along with sale
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NC: 2025:KHC:16280 MFA No. 1242 of 2025 documents and also places reliance on the judgment of the Hon'ble Supreme Court in the case of BONDAR SINGH AND OTHERS v. NIHAL SINGH AND OTHERS1 and copy of the judgment dated 30.10.2024 in MFA No.6603/2024 and copy of order dated 17.02.2025 in W.P.No.4740/2025 (GM-CPC).
12. On the other hand, Sri.K.G.Raghavan, learned Senior Counsel appearing for the respondent/plaintiff submitted that plaintiff had purchased the suit schedule property by registered sale deed from K.Subramanyam. Hence, as per these sale deeds the plaintiff was put into possession of the suit schedule properties, as such there is valid conveyance of title as per registered sale deeds. Thus, the plaintiff is in possession over the suit schedule properties. Thus, argued that possession followed title. As contended by the learned counsel for the appellant/defendant, the defendant is mere holder of agreement for sale and MOU, which are unregistered one. 1 (2003) 4 SCC 161
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NC: 2025:KHC:16280 MFA No. 1242 of 2025 Therefore, by these unregistered documents the possession as well as title cannot be conveyed and as such, just by mere document of agreement of sale and MOU the defendant cannot prove possession. Further submitted that plaintiff after purchasing the suit schedule properties by way of valid registration of sale deeds, has effected mutation by changing the names in the khatha and the plaintiff is paying taxes to the BBMP, which prove the fact that plaintiff is in possession over the property.
13. Further submitted that as per Section 17 of the Registration Act, 1908, transfer of property could be made only through registration of the document when it is compulsorily to be registered. When in the present case the plaintiff has acquired the title over the suit schedule property by way of registered sale deeds, khatha and other revenue entries were mutated in the name of plaintiff then the plaintiff is in possession of the property and considering these aspects the trial court has rightly observed that the plaintiff has made out prima facie case
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NC: 2025:KHC:16280 MFA No. 1242 of 2025 and accordingly granted an order of temporary injunction, which is found to be correct, legal and also justifiable, which needs no interference.
14. Further learned Senior Counsel by referring the recitals in the sale deeds, submitted that the plaintiff has paid sale consideration to vendor - K.Subramanyam and the transfer of property is by way of registered sale deed as per Section 17 of the Registration Act and therefore, there is a valid conveyance of title. Even as per Section 17(1A) of the Registration Act, 1908, a part performance contract is applicable only when the said contract is registered as per Section 17 of the Registration Act. Hence, submitted that BONDAR SINGH's case supra is not applicable in the present case as it is prior to amendment to Registration Act by inserting Section 17(1A). Learned Senior Counsel makes submissions on the documents produced during the course of argument as well as the documents produced by the counsel for the appellant/defendant and by showing the recitals in the
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NC: 2025:KHC:16280 MFA No. 1242 of 2025 said sale deeds, title is conveyed and possession was handed over to the plaintiff.
15. Further submitted that just because the defendant is in possession of the original title deeds that does not convey title in favour of the defendant. Here the only dispute is regarding Kalikeri Subramanya is the owner of the land and being owner has sold the property to the plaintiff. At the most, it could be said that the defendant is in possession of the original title deeds but not more than that much less proving conveyance of title. Therefore, submitted that the trial court has rightly granted order of temporary injunction considering the plaintiff is in possession of the property. Thus, prays to dismiss the appeal.
16. Further the learned Senior Counsel places reliance on the judgments of Hon'ble Supreme Court in the case of ANATHULA SUDHAKAR v. P.BUCHI REDDY
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NC: 2025:KHC:16280 MFA No. 1242 of 2025 (DEAD) BY LRS. & ORS.2 and judgment in the case of AMEER MINHAJ v. DIERDRE ELIZABETH (WRIGHT) ISSAR AND ORS3.
17. Upon considering the rival submissions made by both the parties, following points would arise for my consideration:
(1) Whether, under the facts and circumstances involved in the case, the respondent/plaintiff has made out prima facie case on the basis of the registered sale deeds, khatha and other revenue documents?
(2) Whether, under the facts and circumstances involved in the case, prima facie the respondent/plaintiff is in possession over the suit schedule properties, therefore also proves the balance of convenience in favour of respondent/plaintiff and if interim order of injunction is not granted, whether the plaintiff will suffer irreparable loss of injury?
2(2008) 5 SCR 331 3 Civil Appeal No.18377/2017 - Dtd. 04.07.2018
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NC: 2025:KHC:16280
MFA No. 1242 of 2025
(3) Whether, under the facts and
circumstances involved in the case, the case of the appellant/defendant is more probable compared to plaintiff showing prima facie case that by virtue of unregistered agreement for sale and MOU proves possession of the defendant over the property?
(4) Whether, under the facts and circumstances involved in the case, the order passed by the trial court granting an order of temporary injunction in favour of plaintiff requires any interference by this court?
RE. POINT Nos.(1) to (4):
18. All the points are interlinked with each other and have taken up together for common consideration.
19. The plaintiff is claiming title and possession over the suit properties by virtue of registered sale deeds dated 27.08.2024 by contending that plaintiff had purchased suit properties from Kalikiri Subramanyam through registered sale deeds. Whereas, the defendant is
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NC: 2025:KHC:16280 MFA No. 1242 of 2025 claiming possession over the property through agreement for sale dated 29.11.2011 and MOU dated 08.12.2021. As per this agreement of sale and MOU the defendant might have paid an amount of Rs.9,93,59,730/- and also might have stipulated in both the documents that entire sale consideration was paid and also the defendant has received original title deeds from the owner - Kalikiri Subramanyam. Hence, there is no transfer of title in the absence of registration of sale deeds as required under Section 17 of the Registration Act, 1908.
20. Transfer of property by sale is compulsorily through registration of document as per Section 17 of the Registration Act, 1908, but the agreement of sale and MOU are not registered agreements and they are only notarized before the public notary. Therefore, there could not be presumption of handing over possession of the suit properties in favour of defendant. At the most, the defendant may be holding agreement of sale and MOU and he is in custody of original title deeds. When the
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NC: 2025:KHC:16280 MFA No. 1242 of 2025 defendant is claiming that defendant is in possession through such agreement of sale and MOU, even claiming possession by agreement of sale shall be made through registration as required under Section 17 of the Registration Act, but that is not done in the present case. Therefore, it cannot be said that defendant is in possession over the property by virtue of such agreement of sale and MOU as they were not registered documents. Whereas, the plaintiff is claiming possession over the property through registered sale deeds. When property is transferred by way of sale, it must be done through registered sale deed only and thus, it prima facie proves that the plaintiff is in possession over the property. Though defendant is claiming he is paying taxes to the BBMP, but tax paid receipts and other revenue mutations are standing in the name of the plaintiff since plaintiff has purchased properties through registered sale deeds.
21. In this regard, I place reliance on the judgment of Hon'ble Supreme Court in the case of ANATHULA
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NC: 2025:KHC:16280 MFA No. 1242 of 2025 SUDHAKAR's supra wherein at paragraphs 13 and 14 it has held as follows:
"13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the
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NC: 2025:KHC:16280 MFA No. 1242 of 2025 plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs."
(Emphasis Supplied)
22. When the suit properties are vacant lands and if two persons are claiming to be in possession over the vacant land, the person who has got registered title deeds by sale, is to be considered as he is in possession of the property compared to the person claiming over possession based on mere unregistered agreement of sale. Therefore, in this regard, the above cited judgment is applicable in favor of plaintiff/respondent.
23. The defendant is a mere holder of agreement of sale and MOU, but these documents are unregistered ones. As per the recitals in the said documents, the defendant might have paid the entire sale consideration amount what is agreed in the said agreement and even the original title deeds have been handed over to the defendant, but still that cannot convey the valid title with possession over the property as even if by agreement of sale of which the defendant is claiming possession, but
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NC: 2025:KHC:16280 MFA No. 1242 of 2025 said agreement of sale should be registered one as per Section 17 of the Registration Act. In this regard, I place reliance on the judgment of Hon'ble Supreme Court in the case of AMEER MINHAJ's supra wherein at paragraphs 9 and 10, it is held as follows:
"9. In other words, the core issue to be answered in the present appeal is whether the suit agreement dated 9th July 2003, on the basis of which relief of specific performance has been claimed, could be received as evidence as it is not a registered document. Section 17(1A) of the 1908 Act came into force with effect from 24th September, 2001. Whereas, the suit agreement was executed subsequently on 9th July 2003. Section 17(1-A) of the 1908 Act reads thus:
"17. Documents of which registration is compulsory.--(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-
XXX XXX XXX (1-A) 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 and if such documents are not registered on or after such
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NC: 2025:KHC:16280 MFA No. 1242 of 2025 commencement, then, they shall have no effect for the purposes of the said Section 53-A."
XXX XXX XXX
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 53A 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 53A of the 1882 Act. The issue, in our opinion, is no more res integra. In S. Kaladevi Vs. V.R. Somasundaram Ors., [(2010) 5 SCC 401], this Court has re-stated 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. Section 49 of the 1908 Act reads thus:
"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)], to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(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
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NC: 2025:KHC:16280 MFA No. 1242 of 2025 of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (1 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument."
24. If the agreement of sale and MOU were registered one and if the defendant is claiming that he was handed over possession of the property, then it could have been accepted. Though the agreement of sale and MOU were relating to the sale deed of plaintiff and those documents are unregistered one, it cannot be presumed that the defendant is in possession over the property. Therefore, in this way, the prima facie case is analyzed between the plaintiff and defendant. In the light of principle of law laid down above stated, for considering prima facie case the plaintiff's case is more probable in making out prima facie case compared to the defendant.
25. The learned Senior Counsel for the appellant/defendant submitted that Section 17(1A) of the Registration Act is applicable with regard to taking benefit of part performance of contract as per Section 53A of the
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NC: 2025:KHC:16280 MFA No. 1242 of 2025 Transfer of Property Act, 1882, by placing reliance on the judgment of Hon'ble Supreme Court in BONDAR SINGH's case supra. But, this judgment is in context prior to amending Section 17 of the Registration Act, viz., that is before inserting sub-section (1A) of Section 17 to the Registration Act, 1908. Sub-section (1A) of Section 17 of the Registration Act, 1908, reads as follows:
"17[(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 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.]"
26. In the present case, the agreement of sale is dated 29.11.2011 and MOU is dated 08.12.2021, which is obviously after coming into force of sub-section (1A) of Section 17 of the Registration Act, 1908. As per this provision, even if the defendant claims to take benefit of Section 53A of the Transfer of Property Act, the agreement of sale and MOU could be registered one. When these documents are unregistered one, then the defendant
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NC: 2025:KHC:16280 MFA No. 1242 of 2025 cannot even take benefit of Section 53A of the Transfer of Property Act, 1882.
27. There is amendment to Section 53A of the Transfer of Act, 1882, by virtue of Amendment Act 48 of 2001 w.e.f. 24.09.2001 omitting the words "the contract, though required to be registered, has not been registered, or". Therefore, even for the applicability of Section 53A of Transfer of Property Act, the document must be registered one. The provisions of Section 53A of the Transfer of Property Act, 1882, recognizes a right of a transferee where a transferor has given and transferee has taken possession of the property or any part thereof, but to get a right over the transferee as per agreement of sale it should be compulsorily registered. Otherwise, the right of part performance of contract in favor of transferee is not available, if in case the agreement is not registered one. Therefore, on this count also, the defendant has failed his prima facie case more probable compared to the plaintiff.
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28. The learned Senior Counsel for the appellant/defendant submitted that even the agreement of sale and MOU are to be considered for collateral purpose as per Section 49 of the Registration Act in showing prima facie that the defendant is in possession, but this is not applicable in the present case. The judgment in BONDAR SINGH's case supra is prior to inserting sub-section (1A) of Section 17 of the Registration Act and omitting the above stated words in Section 53A of the Transfer of property Act, 1882. Therefore, even by unregistered document the defendant cannot make out his case of showing his possession for collateral purpose.
29. The proviso to Section 49 of the Registration Act though it is for unregistered document for using evidence of any collateral transaction, but when the document is not required to be affected by registered document after inserting sub-section (1A) to Section 17 of the Registration Act and Section 53A of the Transfer of Property Act, the collateral transaction cannot be taken
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NC: 2025:KHC:16280 MFA No. 1242 of 2025 into benefit as per Section 49 of the Registration Act so far as possession is concerned. Therefore, at this stage, the defendant cannot take benefit of BONDAR SINGH's case supra.
30. The suit is filed for permanent injunction against the defendant restraining the defendant from interfering with the plaintiff's possession over the suit schedule properties. Admittedly, as per the schedule stated in the plaint, the schedule properties are vacant land. Therefore, when there is rival claim by the plaintiff and defendant regarding possession is concerned wherein it is a case of suit for permanent injunction, the principle of law laid down by the Hon'ble Supreme Court in ANATHULA SUDHAKAR's case supra, is applicable. In this regard, the plaintiff has made out prima facie case and this is rightly considered by the trial court and accordingly granted an order of temporary injunction, which needs no interference. Accordingly, Point Nos.1 and 2 are answered in the affirmative and Point Nos.3 and 4
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NC: 2025:KHC:16280 MFA No. 1242 of 2025 are answered in the negative. Therefore, appeal is liable to be dismissed and accordingly, appeal is dismissed.
31. The above observation and discussion are on the admitted facts on the documents and on question of law. Whatever observations made above shall not be construed as discussion on merits in the suit. Therefore, trial court without being influenced by the above observation shall decide the suit in accordance with law on merits.
SD/-
(HANCHATE SANJEEVKUMAR) JUDGE DR List No.: 1 Sl No.: 77