Gujarat High Court
Jyotiba Gambhirsinh Jadeja vs Lakhbirsinh Bhagwansinh Zala Through ... on 17 July, 2025
NEUTRAL CITATION
C/SA/361/2023 ORDER DATED: 17/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 361 of 2023
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JYOTIBA GAMBHIRSINH JADEJA
Versus
LAKHBIRSINH BHAGWANSINH ZALA THROUGH HEIRS & ORS.
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Appearance:
MR DR BHATT(165) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 17/07/2025
ORAL ORDER
1. The present second appeal has been filed under section 100 of the Code of Civil Procedure, 1908 (for short "the Code") challenging the judgement and decree passed in Regular Civil Appeal no.31 of 2021, passed by 4th Additional District Judge, Surendranagar confirming the judgement and decree, passed in Regular Civil Suit No.56 of 2015, dated 18.11.2021, passed by the Additional Civil Judge, Surendranagar.
2. For the sake of brevity and convenience, the parties are referred to as their original status as that in the suit.
3. The brief facts arising in the present proceedings are that, the plaintiff filed Civil Suit for injunction on the ground that, the plaintiff had entered into an agreement to sell with respect to the suit property on 27.03.2004 and in view of the understanding that has been arrived at on 29.03.2011, the plaintiff was put in possession of the property and the plaintiff Page 1 of 19 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:25 IST 2025 NEUTRAL CITATION C/SA/361/2023 ORDER DATED: 17/07/2025 undefined was orally assured that a sale deed will be executed in favour of the plaintiff. In the suit, the plaintiff has sought for a relief restraining defendants from illegally taking away the possession of the suit property and restraining the defendant no.2 from causing any hindrance, obstruction to the plaintiff's peaceful possession of the suit property. The defendant appeared in the said suit and filed their written statement, the Trial Court framed issues vide exhibit 27 as under:
"(1) Whether the plaintiff proves that the defendant no.1 had executed Agreement for sale of land admeasuring Acre-5, 13-Gunthas of Revenue Survey No.222 of Moje: Kherali, Taluka:
Wadhwan in favour of the plaintiff on 27/03/2004 and accordingly, it was decided to sale the said property for total Rs.21,30,000/- at the rate of Rs.4,00,000/- per acre?
(2) Whether the plaintiff proves that the plaintiff had paid an amount of Rs.51,111/- to the defendant no.1 herein towards token money of agreement for sale executed on 27/03/2004 for sale of suit property and in order to keep the agreement for sale in force, Rs.7,65,000/- were taken on piecemeal basis on various occasions till 29/03/2011 and defendant no.1 has executed Memorandum of Understanding in presence of two witnesses on 29/03/2011 regarding the same?
(3) Whether the plaintiff proves that the defendant no.1 had handed over absolute and peaceful possession of the property in suit to the plaintiff Page 2 of 19 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:25 IST 2025 NEUTRAL CITATION C/SA/361/2023 ORDER DATED: 17/07/2025 undefined pursuant to the agreement for sale executed on 27/03/2004?
(4) Whether the plaintiff proves that the sale deed executed by the defendant no.1 in favour of the defendant no.2 on 13/10/2010 is fabricated and the defendant no.2 has not paid any consideration to the defendant no.1 pursuant to the said sale deed?
(5) Whether the defendant no.2 proves that he became the owner and occupier of the suit property from 13/10/2010 when he purchased the property in suit from the defendant no.1 by registered sale deed?
(6) Whether the plaintiff proves that his suit is within the period of limitation?
(7) Whether the plaintiff is entitled for the relief as sought for?
(8) What order and decree?"
4. The plaintiff entered witness box, vide exhibit 35 and the witness of the plaintiff was examined vide exhibit 47. The defendant no.2 entered the witness box and was examined vide exhibit 55 and after taking into consideration oral evidence, the documentary evidence and giving findings on all the issues, the Trial Court dismissed the said suit, the plaintiff thereafter challenged the said judgement and decree of the Page 3 of 19 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:25 IST 2025 NEUTRAL CITATION C/SA/361/2023 ORDER DATED: 17/07/2025 undefined Trial Court and the First Appellate Court while re-appreciating the evidence dismissed the same hence, the present Second Appeal.
5. Learned advocate for the appellant has mainly argued that though the suit is for possession, the Trial Court could not have dismissed the same the suit on the ground that the plaintiff has not proved that the defendant no.1 had agreed to sell the suit property to the plaintiff for an amount of Rs.21,30,000/- and in view of the evidence before the Court, the Trial Court could not have come to the conclusion that the plaintiff is not in possession of the suit property and therefore, it has been argued that as there are substantial questions of law involved, which have been formulated in the Second Appeal, the present Second Appeal is required to be admitted.
6. The substantial questions of law which have been formulated in the memorandum of Appeal are as follows:
"a. That the learned trial judge as well as the learned appellate judge have substantially erred in law as well as in facts in not properly appreciating the documentary evidence submitted on behalf of the appellant vide exh. 37 to 40 and exh. 42 and exh. 44 and thereby grave miscarriage of justice has been caused to the appellant and therefore the judgement and decree passed by the learned trail judge and confirmed by the Page 4 of 19 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:25 IST 2025 NEUTRAL CITATION C/SA/361/2023 ORDER DATED: 17/07/2025 undefined learned appellate judge deserves to be set aside in the interest of justice.
b. That the learned trail judge as well as the learned appellate judge have substantially erred in law as well as in facts in not properly appreciating the documentary evidence submitted on behalf of the appellant vide exh. 184 to 186 and exh. 55 and thereby grave miscarriage of justice has been caused to the appellant and therefore the judgement and decree passed by the learned trail judge and confirmed by the learned appellate judge deserves to be set aside in the interest of justice.
c. It is respectfully submitted that the learned trial judge as well as the appellate judge have substantially erred in law in not properly appreciating the documentary evidence submitted on behalf of the appellant vide Exh. 62 to 68 in as much as the respondent no. 1 & 2 have not taken any permission of the Hon'ble Court before execution of the sale deed dt. 13th October 2010 at Exh. 41 and not only that before execution of the afore said sale deed, no public notice was issued and to title clearance certificate was also obtain and it is humbly brought to the notice of the Hon'ble Court that the possession of the property in question was that of the husband of the Page 5 of 19 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:25 IST 2025 NEUTRAL CITATION C/SA/361/2023 ORDER DATED: 17/07/2025 undefined appellant and today also the possession is that of the husband of the appellant. It is submitted that it is also required to be noted that no signature of the husband of the appellant has been obtained as a confirming party in the sale deed Exh. 41 and therefore the judgement and decree passed by the learned trial judge and confirmed by the appellate judge deserves to be set aside in the interest of justice and the suit of the plaintiff requires to be allowed in the interest of justice.
d. whether the learned trial judge as well as the appellate courts judge were/are vitiated by non-consideration of relevant evidence in the form of deposition of the appellant and the documentary evidence submitted vide exh. 37 to 40, 42, 44 184 to 186, 55, 62 to 68 and 41 and there by both the courts have erred in law and in facts in the interest of justice?
e. Whether the learned trial court as well as appellate court have substantially erred in law in not considering the principles laid down by the Hon'ble High Court in a decision reported at 2020 (1) GLH page 261?"
7. Having heard learned advocate for the appellant and having Page 6 of 19 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:25 IST 2025 NEUTRAL CITATION C/SA/361/2023 ORDER DATED: 17/07/2025 undefined considered the evidence on record and the judgment and decree of the Trial Court and affirmed by the First Appellate Court, the basic fact involved in the present Second Appeal is that, there is no registered document in favour of the plaintiff to suggest that the plaintiff is owner of the property. The plaintiff has come forward with the case that an agreement was entered into between the plaintiff and defendant no.1 on 27.03.2004 whereby defendant no.1 has agreed to execute sale deed in favour of the plaintiff but looking at the facts of the suit, the suit that has been filed is only for permanent injunction and the plaintiff has not filed any suit for specific performance of the contract. Moreover, the plaintiff has also taken a contention that the sale deed that has been executed by defendant no.1, in favour of the defendant no.2 is not a genuine sale deed and no sale consideration has been paid by the defendant no.2 to defendant no.1 but the fact is that the defendant no.1 has not come forward with the case that no sale consideration has been paid by the defendant no.2. The fact also has to be seen that when the plaintiff has other efficacious remedy i.e. the suit for specific performance and the plaintiff not claiming the said relief, whether the plaintiff is entitled for the relief.
8. It is trite law that an Agreement to sell holder does not have any right in the property. [See: Munishamappa v. M. Rama Reddy and Page 7 of 19 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:25 IST 2025 NEUTRAL CITATION C/SA/361/2023 ORDER DATED: 17/07/2025 undefined 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.
9. 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 have been passed. The plaintiff cannot get the relief by clever drafting.
10. Therefore, in the present case, when there was a cause of action Page 8 of 19 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:25 IST 2025 NEUTRAL CITATION C/SA/361/2023 ORDER DATED: 17/07/2025 undefined (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 permanent injunction, is impermissible. This is because, no cause of action for seeking permanent injunction in absence of specific performance can be said to have arisen.
11. 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
(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 Page 9 of 19 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:25 IST 2025 NEUTRAL CITATION C/SA/361/2023 ORDER DATED: 17/07/2025 undefined 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 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 Page 10 of 19 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:25 IST 2025 NEUTRAL CITATION C/SA/361/2023 ORDER DATED: 17/07/2025 undefined 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 this count.
12. 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 Page 11 of 19 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:25 IST 2025 NEUTRAL CITATION C/SA/361/2023 ORDER DATED: 17/07/2025 undefined 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 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 Page 12 of 19 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:25 IST 2025 NEUTRAL CITATION C/SA/361/2023 ORDER DATED: 17/07/2025 undefined 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 this count.
13. 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;
14. 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 Page 13 of 19 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:25 IST 2025 NEUTRAL CITATION C/SA/361/2023 ORDER DATED: 17/07/2025 undefined 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).
15. 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.
16. Moreover, Bombay High Court in Hussain Khan v. Ahmed, 1988 4 Bom CR 60 held as follows:
17. 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 Page 14 of 19 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:25 IST 2025 NEUTRAL CITATION C/SA/361/2023 ORDER DATED: 17/07/2025 undefined 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
18. 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 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.
19. 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.
20. 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.Page 15 of 19 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:25 IST 2025
NEUTRAL CITATION C/SA/361/2023 ORDER DATED: 17/07/2025 undefined
21. 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.
22. 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.
23. Naturally, an unregistered Agreement to sell can be used for Page 16 of 19 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:25 IST 2025 NEUTRAL CITATION C/SA/361/2023 ORDER DATED: 17/07/2025 undefined 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.
24. 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.
25. 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."
26. In the present case also though the plaintiff is relying on Page 17 of 19 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:25 IST 2025 NEUTRAL CITATION C/SA/361/2023 ORDER DATED: 17/07/2025 undefined the agreement to sell dated 27.03.2004, produced vide exhibit 37 and the understanding that has been entered into on 29.03.2011. The Trial Court has rightly come to the conclusion that the agreement to sell produced vide exhibit 37, wherein it has been stated that the possession of the property has been handed over in the year 2004 but the stamp for the said agreement to sell is stated to be purchased in the year 2009 and, therefore, on the factual aspect also the Trial Court has held that there is some overwriting in the agreement to sell and the agreement to sell is a suspected agreement to sell.
27. 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 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."
28. In the case of Jaichand (Dead) through Lrs and Other v. Sahnulal and Another reported in 2024 SCC OnLine SC Page 18 of 19 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:25 IST 2025 NEUTRAL CITATION C/SA/361/2023 ORDER DATED: 17/07/2025 undefined 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."
29. 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.
(SANJEEV J.THAKER,J) URIL RANA Page 19 of 19 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:25 IST 2025