Gujarat High Court
Devuben Mansingbhai Gadhavi vs Jantibhai Bhagvanbhai on 6 October, 2025
NEUTRAL CITATION
C/SA/479/2022 JUDGMENT DATED: 06/10/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 479 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/SECOND APPEAL NO. 479 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
==========================================================
Approved for Reporting Yes No
No
==========================================================
DEVUBEN MANSINGBHAI GADHAVI
Versus
JANTIBHAI BHAGVANBHAI
==========================================================
Appearance:
MR VISHWAS S DAVE(5861) for the Appellant(s) No. 1
==========================================================
CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 06/10/2025
ORAL JUDGMENT
1. The present Second Appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 ('cpc', for short) challenging the judgement and decree passed by 5th Additional District Judge, Bhavnagar, in Regular Civil Appeal No.60 of 2018, dated 25.10.2019, whereby judgement and decree passed by 3rd Additional Civil Judge, Bhavnagar, in Regular Civil Suit No.239 of 2010, dated 30.04.2018, has been confirmed
2. For the sake of the brevity, the parties herein are referred to as per their original status as that of in the suit.
3.1 The brief facts arising in the present Second Appeal are that the plaintiff filed a suit for injunction and it is the case of the plaintiff that the defendant had accepted an amount of Rs.50,000/- by way of earnest Page 1 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:12:57 IST 2025 NEUTRAL CITATION C/SA/479/2022 JUDGMENT DATED: 06/10/2025 undefined money and had executed writing in this regard on 18.09.2008 and the defendant had assured that necessary permission from the Collector will have to be obtained and after that the sale-deed with respect to the suit property will be executed in favour of the plaintiff and as defendant did not execute sale-deed in favour of the plaintiff, the plaintiff filed a suit for injunction.
3.2 The trial Court framed issues vide Exh:28 as under:
"(I) Whether plaintiff proves that the defendants agreed to sale his property by executing a registered sale-deed dated 18/09/2008?
(II) Whether plaintiff proves that the plaintiff has paid Rs.50,000/- (Rupees Fifty Thousand Only) to the defendant ? (III) Whether the plaintiff is entitled to get the relief as prayed for ?
(IV) What order and decree ?
3.3 The plaintiff examined herself vide Exh.33 and after considering the oral evidence and giving findings on all the issues, the trial Court dismissed the said suit. Aggrieved by the said order, plaintiff filed Regular Civil Appeal No.16 of 2018 and after re-appreciating the evidence, the first appellate Court dismissed the appeal. Hence, the present appeal.
4.1 Learned advocate for the plaintiff has mainly argued that the defendant had not examined himself and, therefore, adverse inference had to be drawn against the defendant and decree for injunction was required to be granted in favour of the plaintiff.
Page 2 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:12:57 IST 2025NEUTRAL CITATION C/SA/479/2022 JUDGMENT DATED: 06/10/2025 undefined 4.2 It has been argued that the trial Court and the first appellate Court failed to appreciate the fact that the defendant had accepted Rs.50,000/- by way of earnest money and receipt of which has been produced vide mark 4/1 and the trial Court has not taken into consideration the document Mark:4/1 and it has been argued that the trial Court has not appreciated the fundamental real value of deposition at Exhs.33 and 71 and in view of the said fact, the present Second Appeal be admitted on the substantial question of law, which have been formulated in the memo of appeal, which read as under:
"(A) Whether the courts below erred in law by not giving exhibit to document produced at marked 4/1 even though the same was referred by the court in judgment ?
(B) Whether the court below erred in law by not considering the unregistered document for collateral purpose for evidence ?
(C) Whether the courts below erred in law and facts by considering the deposition of plaintiff and independent witness ?"
5.1 Having heard learned advocate for the plaintiff, following are the admitted facts before this court :-
(i) The plaintiff has filed the suit for injunction and it is the case of the plaintiff that Bana-chitthi was executed by the defendant in favour of plaintiff on 18.09.2008;
(ii) the original Bana-chitthi is not produced by the plaintiff ;Page 3 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:12:57 IST 2025
NEUTRAL CITATION C/SA/479/2022 JUDGMENT DATED: 06/10/2025 undefined
(iii) the suit that has been filed by the plaintiff is not for specific performance and only for injunction restraining the defendants from transferring / assigning the suit property to third party relying on the said Bana-chitthi dated 18.09.2008 and the plaintiff in the said suit has sought for declaration that the defendant be restrained from selling, assigning suit property to third party.
5.2 In the present case, the plaintiff has not produced the original Bana-chitthi, which is produced vide Mark-4/1. Moreover, the entire case of the plaintiff is based on the said Bana-chitthi dated 18.09.2008 which is an unregistered document and the original of which has not been placed before the Court, more particularly when the defendant has categorically stated in the written statement that the said document produced vide Mark 4/1 does not bear his thumb impression and thereafter the plaintiff has not produced any document to support the case of the plaintiff.
5.3 Moreover, provisions of Section 17 of the Registration Act need to be taken into consideration which reads as under:
"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 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,
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or Page 4 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:12:57 IST 2025 NEUTRAL CITATION C/SA/479/2022 JUDGMENT DATED: 06/10/2025 undefined contingent, of the value of one hundred rupees and upwards, to or in immovable property;
... XXX"
5.4 Therefore, in view of the said fact, the said document was compulsorily required to be registered. Here, in the present case, the original of the said document produced vide Mark: 4/1 has not been proved by the plaintiff nor has the plaintiff filed any suit for specific performance.
5.5 This Court apt to refer the judgment of the Hon'ble Apex Court in the case of Balram Singh vs. Kelo Devi, MANU / SC / 1241 / 2022, in Para:17, observed as under:
"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 have been passed. The plaintiff cannot get the relief by clever drafting."
5.6 This Court, very recently, in the judgment in the case of Devesh Page 5 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:12:57 IST 2025 NEUTRAL CITATION C/SA/479/2022 JUDGMENT DATED: 06/10/2025 undefined Metcast Pvt. Ltd. Through Directors & Others Vs. Girish Nagjibhai Savaliya rendered in R/CRA/288/2022 with R/CRA/289/2022, dated 03.07.2025, more particularly in paras :6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.8 and in 6.9, had held as under:
"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
(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] [Added 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 Page 6 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:12:57 IST 2025 NEUTRAL CITATION C/SA/479/2022 JUDGMENT DATED: 06/10/2025 undefined 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 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 Page 7 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:12:57 IST 2025 NEUTRAL CITATION C/SA/479/2022 JUDGMENT DATED: 06/10/2025 undefined a cause of action and is liable to be rejected under Order VII Rule 11 (a) on this count."
5.7 Moreover, even in view of provisions of Section 41(h) of the Specific Relief Act, in the said judgment rendered in case of Devesh Metcast Pvt. Ltd. Through Directors & Others Vs. Girish Nagjibhai Savaliya (supra), in paras: 33, 34, 35 and 36, has observed as under:
33. 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;
34. It is pertinent to be noted that the language of the Section is that an 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 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).
35. 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. ...Page 8 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:12:57 IST 2025
NEUTRAL CITATION C/SA/479/2022 JUDGMENT DATED: 06/10/2025 undefined 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.
36. 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.
5.8 The only question falling for consideration of this Court in the said respect is that in the present case, the Plaintiff has pleaded that she was in possession of the suit property. Hence, is there a cause of action therefore, disclosed for seeking injunction simpliciter? The answer to the said question, in opinion of this Court is in the negative.
5.9 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.
5.10 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 Page 9 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:12:57 IST 2025 NEUTRAL CITATION C/SA/479/2022 JUDGMENT DATED: 06/10/2025 undefined 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 thepurposes of the said section 53A."
5.11 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:
"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."
5.12 Therefore, an unregistered agreement to sale 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, Page 10 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:12:57 IST 2025 NEUTRAL CITATION C/SA/479/2022 JUDGMENT DATED: 06/10/2025 undefined it cannot be said that the suit is maintainable.
5.13 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.
5.14 In view of the foregoing and in view of the ratio as laid down by the Hon'ble Apex Court in case of 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.
5.15 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."
5.16 It is required to be noted that in Second Appeal, the scope is very limited and the Court cannot re-appreciate the evidence. In the case of Navaneethammal v. Arjuna Chetty reported in 1996 (6) SCC 177, the Page 11 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:12:57 IST 2025 NEUTRAL CITATION C/SA/479/2022 JUDGMENT DATED: 06/10/2025 undefined Hon'ble Apex Court has observed as under:-
"11. This Court, time without number, pointed out that interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts."
5.17 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 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."
6. Under the circumstances, this Second Appeal is devoid of any substantial question of law. Both the learned Trial Court and first appellate Court have rightly decided the issue between the parties in the right perspective and as stated above no substantial question of law arises in the present appeal. The appellant has failed to prove his case before the learned Trial Court as well as before the First Appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merit both on facts and law and the same is dismissed at admission stage. Connected civil application is disposed of accordingly.
(SANJEEV J.THAKER,J) MISHRA AMIT V. Page 12 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:12:57 IST 2025