Leelavati Pandharinath Pavshe Deceased Thru. Legal Lrs vs Suryamani Ramanugrah Pandey And Anr

CNR No : HCBM010492682025

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12645 OF 2025

1) Leelavati Pandharinath Pavshe,
Since deceased,
Through LRs already on record,
i.e. Petitioner Nos. 1a to 1d
additional capacity,
1a) Sainath Pandharinath Pavshe,
Age: 30 years, Occu.: Nil,
Both R/at Haribhau Pavshe Pada,
Near Sapna Sadan, Kalyan East,
Taluka Kalyan, District – Thane.
1b) Suvarna Manoj Munde,
Age: 34 years, Occu.: Household,
R/at Thakurwadi, Pandit Dindayal
Cross Road, Opposite Datta Mandir,
Dombivali West, District – Thane.
1c) Sujata Pandharinath Pavshe,
Age: 31 years, Occu.: Household,
R/at: Haribhau Pavshe Pada,
Near Sapna Sadan, Kalyan East,
Taluka Kalyan, District – Thane.
ARUN
RAMCHANDRA
SANKPAL
Digitally signed by
ARUN
RAMCHANDRA
SANKPAL
Date: 2026.11.03
19:26:48 +0530
1d) Bhavna Vivek Mokashi,
Age: 31 years, Occu.: Household,
R/at: Bhandarli, Mumbra Panvel Road,
Post Dahisar, Vaklan, Thane – 400 611.
Nos. 1a) to 1d) through Power of Attorney
Abhimanyu Balaram Gaikwad
Age: 49 years, Occu.: Business,
R/at: Balaram Niwas, Tisai House,
Kalyan East, Taluka Kalyan, ...Petitioners
District – Thane
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Versus
1) Nagendramani Ramanugrah Pandey,
Age: 57 years, Occu.: Business,
R/at: Ground Floor, Heera Plaza
Building, Chinchapada Road,
Katemanivali, Kalyan East,
District Thane
2) Amarnath Shaligram Tiwari
Age: 59 years, Occu.: Business,
R/at: Matruchaya Bombay Puna
Link Road Katemanivali, Kalyan East
…Respondents
Taluka Kalyan, Distirct - Thane

WITH
WRIT PETITION NO. 12646 OF 2025
1) Leelavati Pandharinath Pavshe,
Deceased thorough Legal Heirs
already on record,
i.e. Petitioner Nos. 1a to 1d
additional capacity,
1a) Sainath Pandharinath Pavshe,
Age: 30 years, Occu.: Nil,
Both R/at Haribhau Pavshe Pada,
Near Sapna Sadan, Kalyan East,
Taluka Kalyan, District – Thane.
1b) Suvarna Manoj Munde,
Age: 34 years, Occu.: Household,
R/at Thakurwadi, Pandit Dindayal
Cross Road, Opposite Datta Mandir,
Dombivali West, District – Thane.
1c) Sujata Pandharinath Pavshe,
Age: 31 years, Occu.: Household,
R/at: Haribhau Pavshe Pada,
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Near Sapna Sadan, Kalyan East,
Taluka Kalyan, District – Thane.
1d) Bhavna Vivek Mokashi,
Age: 31 years, Occu.: Household,
R/at: Bhandarli, Mumbra Panvel Road,
Post Dahisar, Vaklan, Thane – 400 611.
Nos. 1a) to 1d) through Power of Attorney
Abhimanyu Balaram Gaikwad
Age: 49 years, Occu.: Business,
R/at: Balaram Niwas, Tisai House,
Kalyan East, Taluka Kalyan, ...Petitioners
District – Thane
Versus
1) Suryamani Ramanugrah Pandey,
Age: 52 years, Occu.: Business,
R/at: Ground Floor, Heera Plaza
Building, Chinchapada Road,
Katemanivali, Kalyan East,
District Thane
2) Vijaynath Shaligram Tiwari,
Age: 59 years, Occu.: Business,
R/at: Matruchaya Bunglow,
Opposite Dr Kasle Hospital,
Bombay Puna Link Road,
Katemanivali Kalyan East,
…Respondents
Taluka Kalyan, District - Thane

Mr. Girish Agrawal, with Chitra Darekar, for the Petitioners in both.
Ms. Amita Chaware, for Respondent No.1 in WP/12645/2025
Mr. Tushar Dahibawkar, with Manoj Jaiswal and Vedant Gurav, i/b
Manoj Jaiswal Associate, for Respondent No.1 in
WP/12646/2025.
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CORAM : N. J. JAMADAR, J.
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RESERVED ON : 4 AUGUST 2026
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PRONOUNCED ON : 3 NOVEMBER 2026
JUDGMENT:
1.
Rule. Rule made returnable forthwith and, with the consent of
the learned Counsel for the parties, heard finally.
2.
These petitions under Article 227 of the Constitution of India
assail the legality, propriety and correctness of the judgment and order
passed by the learned District Judge, Kalyan, in MCA Nos. 12 of 2024
and 13 of 2024, whereby the orders passed by the trial Court rejecting
the applications for temporary injunction in RCS Nos. 152 of 2018 and
233 of 2018, were set aside and injunction has been granted against the
petitioners-defendant Nos. 1 to 5 from disturbing the respondents-
plaintiffs possession over the respective suit properties.
3.
The background facts leading to these petitions can be
summarised as under:
3.1 Both these petitions arise out of almost identical facts. Hence, the
facts in RCS No. 152 of 2018 leading to Writ Petition No. 12645 of 2025
are noted in a little detail, followed by the facts in RCS No. 233 of
2018, in brief:
Writ Petition No. 12645 of 2025 :
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3.2 Late Pandharinath Namdev Pavshe, the husband of petitioner
No.1 and father of petitioner Nos. 1(a) to 1(d), was the holder of the
property bearing City Survey No. 810, admeasuring 539 sq yards =
450.09 sq mtrs (“the suit property”).
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3.3 The Plaintiff claimed on 16 October 1990, late Pandharinath had
executed an agreement to sell the suit property in favour of the plaintiff
and Amarnath Shaligram Tiwari (D6), for a consideration of
Rs.2,29,000/. Under the said agreement for sale, late Pandharinath
acknowledged the receipt of the entire consideration of Rs.2.29,000/-.
Late Pandharinath had agreed to deliver the possession of the suit
property and also execute the conveyance.
3.4 A separate possession receipt of even date evidencing the delivery
of possession of the suit property in favour of the plaintiff and
Amarnath Tiwari-defendant No.6 was also executed. In the said
possession receipt also late Pandharinath acknowledged the receipt of
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consideration. In addition, on 5 February 1993, another receipt was
executed by late Pandharinath acknowledging the receipt of
consideration.
3.5 The plaintiff claimed that, the Plaintiff has been in continuous
possession of the suit property since the date of execution of those
instruments as an owner thereof. The names of the plaintiff and others
were mutated in the Record of Rights of the suit property in the other
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rights column. In the year 2014, the plaintiff also got the suit property
measured and demarcated through the Land Records Department.
Though the agreement for sale was executed in favour of the plaintiff
and Amarnath Tiwari, (D6), yet, it was agreed between them that the
purchase was for the plaintiff exclusively.
3.6 After the demise of the original holder, the defendants who are
the legal heirs of late Pandharinath accepted the transaction executed
by late Pandharinath and the ownership of the plaintiffs over the suit
property. However, subsequently, they have executed a registered power
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of attorney in favour of Abhimanyu Balaram Gaikwad on 1 November
2017. On the strength of the said power of attorney, proceedings were
initiated before the Revenue Authorities seeking deletion of the name of
the plaintiffs and others from the other rights of column of the Record
of Rights of the suit property.
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3.7 When the plaintiff approached the defendants on 20 March
2018 and asked them to execute the sale deed, the defendants flatly
refused to perform the contract entered into by their predecessor-in-
title. Hence, the plaintiff was constrained to institute the suit for specific
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performance of the contract dated 16 October 1990 and, in the
alternative, for refund of the consideration alongwith interest, damages
and the consequential relief of injunction.
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3.8 The defendants resisted the suit. It was the contention of the
defendants that on the basis of false and forged documents, the plaintiff
was laying claim over the suit property. Late Pandharinath was an
illiterate person. He could not have executed the agreement for sale
which is scribed in the English language. The purported agreement and
receipts are apparently false. They do not bear the signature of late
Pandharinath. The plaintiff has never been in possession of the suit
property. By taking undue advantage of false and forged documents, the
plaintiff had got the names mutated in the other rights column in the
Record of Rights of the suit property and, eventually, the Revenue
Authorities have deleted those entries.
3.9 In the said suit, the plaintiff preferred an application for
temporary injunction.
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3.10 By an order dated 10 November 2023, the learned Civil Judge
was persuaded to reject the application opining inter alia, that the
execution of multiple documents by late Pandharinath was not free
from infirmities. Entries in the Record of Rights could not have been
made on the basis of an unregistered agreement for sale. The Revenue
Authorities had set aside the entries in the revenue record. In this
backdrop, the conduct of the plaintiff manifested in inaction for over 28
years, disentitled the plaintiff from any equitable relief.
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3.11 Being aggrieved, the plaintiff preferred an appeal before the
District Court. By the impugned judgment and order, the learned
District Judge was persuaded to interfere with the order passed by the
trial Court and grant temporary injunction. The learned District Judge
was of the view that though the agreement for sale was not registered,
yet, it could be looked into for a collateral purpose to show the nature
of the possession of the plaintiff over the suit property. Moreover, in the
year 2014, the plaintiff had got the suit property measured and
demarcated by the Taluka Inspector of Land Records (“TILR”) and the
report of the said measurement indicated that late Pandharinath was
present when the property was measured. In the view of the learned
District Judge the case pleaded by the plaintiff was more probable than
the one set up by the defendants.
3.12 Being aggrieved, the defendants have invoked the writ
jurisdiction of this Court.
Writ Petition No. 12646 of 2025 :
3.13 The respondents-plaintiffs have instituted the suit, RCS No. 233
of 2018, with substantially the same assertions like those in Suit No 152
of 2018, with the change that the purported agreement was executed by
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late Pandharinath on 23 August 1991 to sell the property admeasuring
513 sq yards=429 sq mtrs, in favour of the plaintiffs and one Vijaynath
Shaligram Tiwari, for a consideration of Rs. 2,18,100/-. A possession
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receipt was also executed by late Pandharinath, on 23 August 1991.
3.14 The rest of the case pleaded by the plaintiffs and the response
thereto by the defendants proceed on identical lines as in Suit No. 152
of 2018.
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3.15 By an order dated 10 November 2023, the learned Civil Judge,
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declined to grant injunction, and by the impugned order dated 15 July
2025 in MCA No. 13 of 2024, the learned District Judge reversed the
said order and granted injunction against the petitioners-defendant Nos.
1 to 5. Thus, defendant Nos. 1 to 5 have preferred Writ Petition No.
12646 of 2025.
4.
In the backdrop of the aforesaid facts and pleasings, I have heard
Mr. Girish Agrawal, the learned Counsel for the petitioners in both
petitions, Ms. Amita Chaware, the learned Counsel for respondent No.1
in Writ Petition No. 12645 of 2025 and Mr. Tushar Dahibawkar, the
learned Counsel for Respondent No.1 in Writ Petition No. 12646 of
2025. With the assistance of the learned Counsel for the parties, I have
perused the pleadings and material on record.
5.
Mr. Girish Agrawal, the learned Counsel for the petitioners in
both the petitions, took a slew of exceptions to the impugned orders
passed by the learned District Judge.
6.
First, Mr. Agrawal would urge that, the learned District Judge
committed a manifest jurisdictional error in interfering with a well-
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reasoned order passed by the trial Court in exercise of its discretionary
jurisdiction. The learned District Judge did not adhere to the limits of
jurisdiction in the matter of interference with the discretionary order.
Amplifying the submissions, Mr. Agrawal would urge that, in the
backdrop of the facts of the case at hand, by no stretch of imagination,
could it be said that the view of the trial Court was either perverse or
one that could not have been taken. Thus, the learned District Judge
could not have interfered with the orders passed by the trial Court.
7.
Secondly, Mr. Agrawal would urge, the learned District Judge,
was not at all justified in taking a different view on the very same
material, in exercise of the appellate jurisdiction. The learned District
Judge, according to Mr. Agrawal, completely misconstrued the
documents and arrived at a wholly erroneous finding that the plaintiffs
were in possession of the respective suit properties.
8.
Thirdly, the learned District Judge committed a grave error in
giving undue weight to an unregistered agreement for sale. Moreover,
the inadmissibility of the agreements for sale which are not duly
stamped was completely ignored by the learned District Judge. An
insufficiently stamped instrument cannot be considered by the Court
even for a collateral purpose. Thus, the learned District Judge was
clearly in error in observing that the agreements for sale in question
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could be looked into for the collateral purpose of ascertaining the
character of the purported possession of the plaintiffs.
9.
To lend support to this submission, Mr. Agrawal, placed reliance
on the judgments of the Supreme Court in the cases of Sita Ram Bhama
1
Vs Ramvatar Bhama, Yellapu Uma Maheswari And Anr Vs Buddha
2
Jagadheeswararao and Ors and a judgment of this Court in the case of
3
Salim Baig S/o Akhtar Baig Vs Sayyad Nawid S/o Sayyad Nazir.
10.
Fourthly, none of the stamp papers, on which the purported
agreements for sale were scribed, was purchased by any of the parties
thereto. Thus, in view of the provisions contained in Section 34 of the
Maharashtra Stamp Act, 1958 (“the Act, 1958”), such an instrument
was not admissible in evidence. To this end, Mr. Agrawal placed reliance
on a judgment of a learned Single Judge of this Court in the case of M/s
4
KBC Pictures Vs A. R. Murgadoss & Ors.
11.
Lastly, Mr. Agrawal would urge that, the documents on record
indicate that the names of the Plaintiffs and others were mutated in the
other rights column of the Record of Rights of the suit properties,
surreptitiously and without any lawful authority. Eventually, those
entries were set aside by the appellate authority. What accentuates the
1 AIR 2018 SC 3057.
2 2015 AIR SCW 6184.
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3 Aurangabad Bench Writ Petition No. 13409 of 2023, decided on 29
July 2025.
4 2009 (2) ALL MR 108.
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situation is the fact that, though Pandharinath passed away on 19
December 2012, in the purported measurement carried out in the year
2014, it was shown that Pandharinath was present. All these factors
cumulatively demolish the case of the plaintiffs. Therefore, the learned
District Judge was not at all justified in interfering with the order
passed by the trial Court, submitted the learned Counsel for the
petitioners.
12.
In opposition to this, Ms. Amita Chaware and Mr. Tushar
Dahibawkar, the learned counsel for the respondents-plaintiffs
supported the impugned orders. The learned Counsel submitted that the
learned District Judge was fully justified in correcting the error in the
exercise of discretion by the trial Court. There were documents to
indicate that late Pandharinath had acknowledged the receipt of
consideration and parted with possession of the respective suit
properties by executing possession receipts in respect of the respective
suit properties, apart from the agreements for sale.
13.
It was further submitted that, the learned District Judge was well
within her rights in taking into account unregistered agreements for
sale for the collateral purpose. Moreover, the indisputable measurement
and demarcation of the suit properties by the officers of Land Records
Department, in the year 2014 established the factum of possession of
the plaintiffs beyond the pale of controversy. In this backdrop, the
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learned District Judge has rightly, restrained the defendants from
causing obstruction to possession and enjoyment of the suit properties
by the defendants.
14.
The learned Counsel for the respondents also urged that as the
learned District Judge has exercised the positive discretion to grant
injunctive relief so as to protect the possession of the plaintiffs, this
Court in exercise of its limited supervisory jurisdiction need not
interfere with the impugned orders. It was submitted that the exercise
of the discretion by the learned District Judge cannot be said to be
either perverse or against the settled principles of law.
15.
I have given careful consideration to the aforesaid rival
submissions canvassed across the bar.
16.
The legal position is well recognized. Ordinarily, the appellate
Court is not expected to interfere with the exercise of discretion in the
matter of grant of injunction by the trial Court and substitute its own
discretion for the same, except where it can be demonstrated that the
discretion has been exercised arbitrarily or perversely, or the impugned
order is contrary to the settled principles of law. An arbitrariness in the
exercise of discretion or perversity in the order passed by the trial Court
can arise where the injunction has been granted sans material or the
trial court has declined to grant temporary injunction, despite existence
of justifiable material.
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17.
A profitable reference in this context can be made to a three
Judge Bench decision of the Supreme Court in the case of Wander Ltd.
5
and Anr. V/s. Antox India P. Ltd. wherein the following observations
have been made :
“14. The appeals before the Division Bench were against
the exercise of discretion by the Single Judge. In such appeals, the
Appellate Court will not interfere with the exercise of discretion of
the court of first instance and substitute its own discretion except
where the discretion has been shown to have been exercised
arbitrarily, or capriciously or perversely or where the court had
ignored the settled principles of law regulating grant or refusal of
interlocutory injunctions. An appeal against exercise of discretion is
said to be an appeal on principle. Appellate Court will not reassess
the material and seek to reach a conclusion different from the one
reached by the court below if the one reached by the court was
reasonably possible on the material. The appellate court would
normally not be justified in interfering with the exercise of
discretion under appeal solely on the ground that if it had
considered the matter at the trial stage it would have come to a
contrary conclusion. If the discretion has been exercised by the
Trial Court reasonably and in a judicial manner the fact that the
appellate court would have taken a different view may not justify
interference with the trial court's exercise of discretion. After
referring to these principles Gajendragadkar, J. in Printers (Mysore)
6
Pvt. Ltd. V/s. Pothan Joseph :
“... These principles are well established, but as has been
observed by Viscount Simon in Charles Osention & Co. v. Johnston
the law as to the reversal by a court of appeal of an order made by
a judge below in the exercise of his discretion is well established,
and any difficulty that arises is due only to the application of well
settled principles in an individual case.
5 1990 (supp) SCC 727
6 (1960) 3 SCR 713
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The appellate judgment does not seem to defer to this
principle.”
(emphasis supplied)
18.
In the case of Seema Arshad Zaheer and Ors. V/s. Municipal
7
Corporation of Greater Mumbai and Ors. the Supreme Court
expounded the principles which govern the interference by the appellate
Court in the discretionary order passed by the trial Court. The
observations in paragraph 32 are material, and, hence, extracted below :
“32. Where the lower court acts arbitrarily, capriciously
or perversely in the exercise of its discretion, the appellate court
will interfere. Exercise of discretion by granting a temporary
injunction when there is 'no material', or refusing to grant a
temporary injunction by ignoring the relevant documents
produced, are instances of action which are termed as arbitrary,
capricious or perverse. When we refer to acting on 'no material'
(similar to 'no evidence'), we refer not only to cases where there
are total dearth of material, but also to cases where there is no
relevant material or where the material, taken as a whole, is not
reasonably capable of supporting the exercise of discretion. In this
case, there was 'no material' to make out a prima facie case and
therefore, the High Court in its appellate jurisdiction, was justified
in interfering in the matter and vacating the temporary injunction
granted by the trial court.”
(emphasis supplied)
19.
Another three Judge Bench of the Supreme Court in the case of
8
Skyline Education Institute (India) Pvt. Ltd. V/s. S.L.Vaswani and Anr.
7 (2006) 5 SCC 282
8 (2010) 2 SCC 142
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after referring to the previous precedents, culled out the principles in
the following words :
“22. The ratio of the abovenoted judgments in that once the
Court of first instance exercises its discretion to grant or refuse to
grant relief of temporary injunction and the said exercise of
discretion is based upon objective consideration of the material
placed before the Court and is supported by cogent reasons, the
appellate court will be loath to interfere simply because on a de
novo consideration of the matter it is possible for the appellate
Court to form a different opinion on the issues of prima facie case,
balance of convenience, irreparable injury and equity.”
(emphasis supplied )
20.
In the case of Ramakant Ambalal Choksi Vs Harish Ambalal
9
Choksi and Ors, the Supreme Court has further clarified that, the
principles of law explained in Wander’s (Supra) have been reiterated in
a number of subsequent decisions. However, over a period of time the
test laid down by the Supreme Court as regards the scope of
interference has been made more stringent. The emphasis is now more
on perversity rather than a mere error of fact or law in the order
granting injunction pending the final adjudication of the suit.
21.
In the light of the aforesaid well-settled position in law, it has to
be seen whether the learned District Judge was justified in interfering
with the orders passed by the trial Court, whereby injunction was
refused.
9 2024 SCC OnLine SC 3538.
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22.
A few factors seemed to have weighed with the learned District
Judge. First, the agreements for sale, though unregistered, could be
looked into for the collateral purpose of ascertaining the factum and
character of possession.
23.
Second, after the execution of the agreements for sale, the names
of the plaintiffs and others were mutated in the other rights column of
the Record of Rights of the suit properties.
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24.
Third, on 16 June 2014, the TILR conducted a survey, measured
and demarcated the suit properties vide MR No. 280 of 2014 and at that
time, late Pandharinath was also present.
25.
Whether the aforesaid approach of the learned District Judge is
justifiable?
26.
To start with, the manner in which the names of the plaintiffs and
others were mutated to the other rights column of the suit properties,
deserves to be examined, albeit prima facie. From the perusal of the
extract of the Enquiry Register (Exhibit “A”) annexed to the affidavit in
reply filed on behalf of respondent No.1 in Writ Petition No. 12645 of
2025, it becomes clear that the entries were made in the other rights
column on the basis of the statement that the plaintiffs and others had
purchased the suit properties from Pandharinath. However, the date of
purchase was left blank. It also records that Pandharinath was present.
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27.
Evidently, the entries in the Record of Rights were not made on
the basis of a registered instrument. Nor was it the case of the plaintiffs
that by the time those entries were made, late Pandharinath had
executed a sale deed in favour of the respective purchasers. For these
reasons, the first appellate authority under the Maharashtra Land
Revenue Code allowed the appeal preferred by the defendants, and
directed the deletion of the said entry in the other rights column. The
second appellate authority declined to interfere with the order passed
by the first appellate authority. Resultantly, as of the date of the
impugned order, the names of the plaintiffs were not reflected in the
Record of Rights of the suit properties. Thus, the entries in the Record
of Rights could not have been made the basis of determination.
28.
The reliance by the learned District Judge on the unregistered
agreements for sale, professedly for collateral purposes, to record a
prima facie finding that the plaintiffs were in possession of the suit
properties also did not appear to be free from infirmities.
29.
Firstly, the intrinsic evidence of the documents relied upon by the
plaintiffs, prima facie , justified the inferences drawn by the trial Court
regarding the nature of the transaction. For instance, under the
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agreement for sale dated 16 October 1990, the possession of the suit
property, in Suit No. 152 of 2018, was agreed to be delivered on the
request of the purchasers. Yet, on the very day, a separate possession
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receipt was executed. Interestingly, though a receipt acknowledging the
receipt of consideration of Rs. 2,29,000/- is appended to the agreement
for sale, yet, not only the possession receipt again acknowledges the
receipt of consideration but a separate receipt was executed on a stamp
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paper of Rupees five denomination on 5 February 1993.
30.
Secondly, the agreement for sale was purportedly executed on a
stamp paper of Rs. 10 denomination. Since, under the said agreement,
the possession was agreed to be delivered to and, according to the
plaintiffs, the possession was, in fact, delivered on that very day under a
separate possession receipt and the entire consideration was parted
with, the purported agreement for sale amounted to a “conveyance”
within the meaning of the Explanation 1 to Article 25 of Schedule I of
the Maharashtra Stamp Act. Prima facie, the instrument was not
adequately stamped.
31.
In the case of Veena Hasmukh Jain and Anr Vs State of
10
Maharashtra and Ors , the Supreme Court has expounded the law as to
when an agreement to sell can be treated as document of conveyance
and liable to stamp duty under Explanation I to Article 25, as under:
“ 8. The duty in respect of an agreement covered by the
Explanation is leviable as if it is a conveyance. The conditions to
be fulfilled are that if there is an agreement to sell immovable
property and possession of such property is transferred to the
purchaser before the execution or at the time of execution or
10 (1999) 5 sCC 725.
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subsequently without executing any conveyance in respect
thereof, such an agreement to sell is deemed to be a
“conveyance”. In the event a conveyance is executed in
pursuance of such agreement subsequently, the stamp duty
already paid and recovered on the agreement of sale which is
deemed to be a conveyance shall be adjusted towards the total
duty leviable on the conveyance. Now, in the present case, the
agreement entered into clearly provides for sale of an
immovable property and there is also a specific time within
which possession has to be delivered. Therefore, the document
in question clearly falls within the scope of Explanation I. It is
open to the legislature to levy duty on different kinds of
agreements at different rates. If the legislature thought that it
would be appropriate to collect duty at the stage of the
agreement itself if it fulfils certain conditions instead of
postponing the collection of such duty till the completion of the
transaction by execution of a conveyance deed inasmuch as all
substantial conditions of a conveyance have already been
fulfilled such as by passing of a consideration and delivery of
possession of the property and what remained to be done is a
mere formality of execution of a sale deed, it would be
necessary to collect duty at a later (sic agreement) stage itself
though right, title and interest may not have passed as such.
Still, by reason of the fact that under the terms of the
agreement, there is an intention of sale and possession of the
property has also been delivered, it is certainly open to the State
to charge such instruments at a particular rate which is akin to a
conveyance and that is exactly what has been done in the
present case. Therefore, it cannot be said that levy of duty is not
upon the instrument but on the transaction. Therefore, we reject
the contention raised on behalf of the appellants in that regard.”
(emphasis supplied)
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32.
Following the aforesaid pronouncement in the case of Shyamsundar
11
Radheshyam Agrawal and Anr Vs Pushpabai Nilkanth Patil and Ors,
the Supreme Court observed as under:
“14. … … … The above Explanation I makes it lucid that an
agreement for sale is to be treated as a “convenience” if either
possession is hand over immediately or if it is agreed to be handed
over within a particular time. A reading of the above Explanation I
along with Section 4 makes it clear that the duty is levied only on
the instrument and not on the transaction.”
33.
If an agreement for sale is both unregistered and inadequately
stamped, the fact that in view of the proviso to Section 49 of the
Registration Act, 1908, such an agreement may be received as evidence
of a contract in a suit for specific performance or as evidence of any
collateral transaction not required to be effected by a registered
instrument, does not insulate such insufficiently stamped agreement for
sale from the rigour of Section 34 of the Maharashtra Stamp Act, 1958.
If the instrument is insufficiently stamped, it cannot be admitted in
evidence for any purpose, unless such instrument is duly stamped. Such
an instrument cannot be looked into even for a collateral purpose.
34.
A profitable reference in this context can be made to the
judgment of the Supreme Court in the case of Sita Ram Bhama (Supra)
on which reliance was placed by Mr. Agrawal, wherein it was
11 (2024) 10 SCC 324.
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emphasised that unstamped instrument is not admissible in evidence
even for collateral purposes, until the same is impounded.
35.
In the case of Yellapu Uma Maheswari And Anr (Supra) also the
Supreme Court had enunciated the same principle. A learned Single
Judge of this Court in the case of Salim Baig S/o Akhtar Baig (Supra),
after adverting to the aforesaid pronouncements, had observed that an
unstamped agreement for sale could not have been considered for any
purpose.
36.
The challenge to the admissibility of the agreement for sale on
the ground that the stamp paper on which the said agreement was
scribed was not purchased in the name of one of the parties to the
instrument also appeared to be prima facie well-founded. Section 34 of
the Maharashtra Stamp Act, 1958, prior to its amendment by Act 9 of
th
1997, with effect from 15 September 1996, mandated that the
executor or one of the executors was the person in whose name the
stamp paper was purchased.
37.
The learned District Judge did not advert to the aforesaid prima
facie insuperable impediments in the admissibility of the agreement for
sale and was swayed by the fact that the plaintiffs case was based on
the agreements for sale.
38.
Thirdly, the learned District Judge was also not justified in
banking upon the purported measurement and demarcation of the suit
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th
properties by the TILR on 16 June 2014, especially for the reason that
Pandharinath was present at the time of said measurement. In the plaint
th
itself, the plaintiff has asserted that Pandharinath passed away on 19
December 2012. Thus, a statement in the report of measurement that
th
Pandharinath was present at the time of the survey carried out on 16
June 2014, could not have been arrayed against the defendants. That
prima facie underscores the unreliability of the measurement report.
39.
Lastly, the learned District Judge also lost sight of the inordinate
delay on the part of the plaintiffs in seeking specific performance of the
contracts for sale of the suit properties purportedly executed in the year
1990 and 1991. Allegedly, the entire consideration was parted with at
the time of the execution of the agreements for sale. Prima facie, there
was no impediment in the execution of the sale deed. It was not the
case of the plaintiffs that the vendor was required to obtain permission
of the authorities for sale or that other statutory compliances were to be
made before the sale deed could be executed. A time-lag of more than
25 years would bear upon the equities of the case, the balance of
convenience and exercise of discretion by the Courts in granting the
injunction.
40.
The stand taken by respondent No.1 by way of the affidavit in
reply filed in Writ Petition No. 12645 of 2025, and the documents
annexed thereto, further confounds the confusion regarding the nature
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of the plaintiff’s claim. The plaintiff claimed to have acquired the
ownership over the suit property by way of adverse possession since
prior to 2000. The said stand is in complete derogation of a claim for
specific performance of the contract for sale.
41.
Secondly, the plaintiff has relied upon the purported agreement
th
dated 29 October 2013 executed by and between the plaintiff and
defendants, wherein the defendants were to be paid 25% of the revenue
that might have been generated out of the development of the suit
properties by way of consideration towards the supervision of the said
development and safe keeping of the construction material that might
have been stored at the suit property. Prima facie it defies
comprehension that the plaintiff who claimed to have acquired
ownership over the suit property and to have been in its exclusive
possession would enter into such sort of understanding with defendant
Nos. 1 to 5 who according to the plaintiff were not in possession
thereof. The aforesaid stand of the plaintiff puts the nature of the jural
relationship between the parties in the corridor of uncertainty.
42.
The conspectus of the aforesaid consideration is that, the learned
District Judge transgressed the jurisdictional limits in interfering with
the exercise of discretion by the trial Court. In the light of the material
on record and the issues that crop up for consideration, highlighted
above, the view of the trial Court that the plaintiff had failed to
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establish prima facie possession over the suit properties cannot be said
to be perverse or such that no Court or Tribunal could have taken the
said view in the given facts of the case. Thus, interference by the
appellate Court was unwarranted. Therefore, the impugned orders
deserve to be quashed and set aside.
43.
Hence, the following order:
: O R D E R :
(i) Petitions stand allowed.
th
(ii) The impugned orders dated 15 July 2025 in MCA No. 12
of 2024 and MCA No. 13 of 2024, stand quashed and set aside.
th
(iii-) The orders dated 10 November 2023, passed by the trial
Court on the application for temporary injunction in RCS No. 152
of 2018 and RCS No. 233 of 2018, stand restored.
(iv) The applications for temporary injunction in RCS No. 152
of 2018 and RCS No. 233 of 2018 stand rejected.
(v) Rule made absolute in the aforesaid terms.
No costs.
[N. J. JAMADAR, J.]
At this juncture, the learned Counsel for the respondents seek
stay to the execution and operation of this order and continuation of
the interim injunction granted by the appellate Court, by the impugned
order, for a period of four weeks.
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In the light of the fact that the injunction has been in operation
th
since 15 July 2025 and enusing holidays, the effect, execution and
operation of this order shall be remain styed for a period of four weeks.
[N. J. JAMADAR, J.]
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