V Jayamma vs Gulab Jan on 17 April, 2026

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    Karnataka High Court

    V Jayamma vs Gulab Jan on 17 April, 2026

    Author: Ravi V Hosmani

    Bench: Ravi V Hosmani

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                                                                         NC: 2026:KHC:21181
                                                                        RSA No. 863 of 2009
    
    
                                  HC-KAR
    
    
    
                                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                                            DATED THIS THE 17TH DAY OF APRIL, 2026
                                                           BEFORE
                                           THE HON'BLE MR. JUSTICE RAVI V HOSMANI
                                         REGULAR SECOND APPEAL NO. 863 OF 2009 (INJ-)
                                  BETWEEN:
    
                                         V. JAYAMMA
                                         W/O. RAMACHANDRA
                                         AGED ABOUT 52 YEARS
                                         R/AT PINDINAGARA VILLAGE
                                         YELDUR HOBLI
                                         SRINIVASPUR TALUK
                                         KOLAR DISTRICT-572338.
                                                                               ...APPELLANT
    
                                  (BY    SRI GA SRIKANTE GOWDA, ADVOCATE)
    
                                  AND:
    
                                  1.     GULAB JAN
                                         W/O. LATE ABDUL JABBAR
                                         AGED ABOUT 58 YEARS
    
                                  2.     ALEEMULLA
    CHANDRASHEKAR
    LAXMAN
    KATTIMANI
                                         S/O. LATE ABDUL JABBAR
    Digitally signed by
    CHANDRASHEKAR
                                         AGED ABOUT 38 YEARS
    LAXMAN KATTIMANI
    Location: High Court of
    Karnataka, Dharwad Bench
    Date: 2026.04.17 22:34:31 -
    0700
    
                                  3.     NOORULLA
                                         S/O. LATE ABDUL JABBAR
                                         AGED ABOUT 38 YEARS
    
                                  4.     NASRULLA
                                         S/O. LATE ABDUL JABBAR
                                         AGED ABOUT 26 YEARS
    
                                  5.     AFZAL PASHA
                                         S/O. LATE ABDUL JABBAR
                                         AGED ABOUT 27 YEARS
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                                            RSA No. 863 of 2009
    
    
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          RESPONDENTS NO.1 TO 5 ARE
          R/AT ELAHEE MANZIL
          OPP. TO H.P. PLAZA
          RAHAMATH NAGAR
          CHIKKABALLAPUR ROAD
          KOLAR TOWN-572338.
    
    6.    VENKATAPPA
          S/O. GURAPPA
          AGED ABOUT 65 YEARS
          R/AT PINDINAGARA VILLAGE
          YELDUR HOBLI
          SRINIVASAPUR TALUK
          KOLAR DISTRICT.
    
    7.    G. MANJUNATHA
          S/O. LATE GIREGOWDA
          AGED ABOUT 49 YEARS
          R/AT PINDINAGARA VILLAGE
          YELDUR HOBLI
          SRINIVASAPUR TALUK
          KOLAR DISTRICT-572338.
    
                                                   ...RESPONDENTS
    
    (BY   SRI V. VINOD REDDY, ADVOCATE FOR R7;
          NOTICE TO R1 TO R5 - SERVED AND UNREPRESENTED;
          SRI SAMPATH A., ADVOCATE FOR R6)
    
          THIS RSA IS FILED UNDER SECTION 100 OF CPC,
    AGAINST THE JUDGEMENT AND DECREE DATED 25.04.2009
    PASSED   IN   R.A.NO.170/2008    ON   THE    FILE   OF   THE   I
    ADDITIONAL CIVIL JUDGE (SR. DN.) AND CJM, KOLAR,
    ALLOWING THE APPEAL AND SETING ASIDE THE JUDGEMENT
    AND DECREE DATED 19.06.2008 PASSED IN O.S.NO.109/2005
    ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR. DN.) AND
    JMFC, SRINIVASAPUR.
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          THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
    JUDGMENT          ON      06.03.2026,        COMING        ON         FOR
    PRONOUNCEMENT          OF     JUDGMENT       THROUGH       VC     FROM
    DHARWAD BENCH, THIS DAY, THE COURT DELIVERED THE
    FOLLOWING:
    
    CORAM:     HON'BLE MR. JUSTICE RAVI V HOSMANI
    
                              CAV JUDGMENT
    

    Challenging judgment and decree dated 25.04.2009

    passed by I Addl. Civil Judge (Sr.Dn.), Kolar, in RA

    SPONSORED

    no.170/2008 and judgment and decree dated 19.06.2008

    passed by Principal Civil Judge (Jr.Dn.), Srinivaspur, in OS

    no.109/2025, this appeal is filed.

    2. Sri GA Srikante Gowda, learned counsel for appellant

    submitted appellant was defendant no.2 in OS no.109/2005 for

    decree of permanent injunction and for declaring judgment and

    decree passed in OS no.135/2004 as not binding on him etc.

    Said suit was filed by G. Manjunatha – plaintiff against Abdul

    Jabbar – defendant no.1, V. Jayamma – defendant no.2 and

    Venkatappa – defendant no.3.

    3. In plaint, it was stated plaintiff’s father – Giregowda

    got 2 Acres 24 guntas of land in Sy.no.67/3, situated at
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    Pindiganagara village, Srinivaspur Taluk (‘suit property’ for

    short) from Chikkamuniswamy S/o Sonnappa and his name

    entered in revenue records. That prior to his death

    Chikkamuniswamy had executed agreement of sale in favour of

    Giregowda on 15.08.1966 by receiving entire agreed sale

    consideration of Rs.150/- and delivered possession. And after

    death of plaintiff’s father, plaintiff continued in possession,

    wherein they had planted Eucalyptus. It was stated that

    defendant no.1, owner of Sy.no.67/1 measuring 1 Acre 28

    guntas situated at Pindiganagara sold it to defendant no.2

    under registered Sale Deed dated 19.09.1992, who in turn sold

    it to defendant no.3 under registered Sale Deed on 06.03.2004.

    But said sale-deeds were with incorrect boundaries and

    description of property. Though defendant no.2 was not

    concerned with property of Chikkamuniswamy, she filed OS

    no.135/2004 against defendant no.1 for declaration of title and

    for correction of Sy.no.67/1 measuring 1 Acre 28 guntas as

    Sy.no.67/3 measuring 2 Acres 24 guntas in sale deed. Said suit

    ended in collusive compromise, with intention of grabbing suit

    property from plaintiff. Therefore said decree was not binding

    on plaintiff. And though defendant no.2 was not in possession,
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    she tried to interfere with plaintiff’s possession on 09.06.2005,

    which led to filing of present suit.

    4. Defendants no.2 and 3 appeared and filed separate

    written statements denying plaint averments. Defendant no.2

    stated under registered Sale Deed dated 19.09.1992, she

    purchased two lands from defendant no.1. There was no

    dispute with regard to Sy.no.43/3 measuring 1 Acre 08 guntas.

    Insofar as other land, in sale deed defendant no.1 wrongly

    mentioned it as Sy.no.67/1 measuring 1 Acre 28 guntas instead

    of Sy.no.67/3 measuring 2 Acres 24 guntas. She realized same

    in 2003 when surveyor visited spot. She claimed, boundaries

    mentioned in her sale deed corresponded to Sy.no.67/3,

    revenue records of which were in her name and not Sy.no.67/1

    which belonged to defendant no.3. And when she informed

    defendant no.1 of mistake, he advised her to execute sale deed

    in favour of defendant no.3 mentioning same particulars. When

    defendant no.1 failed to execute rectification deed, on ill advice

    of plaintiff, she filed OS no.135/2004 for declaration and

    rectification of sale deed. Said suit ended in compromise, as

    per which, she was absolute owner in possession of suit
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    property and revenue entries were in her name. She stated,

    neither plaintiff nor defendant no.1 or defendant no.3 had any

    manner of right, title or interest or possession of suit property.

    Hence, plaintiff’s suit was liable for dismissal.

    5. In his written statement, defendant no.3 stated, he

    purchased Sy.no.67/1 measuring 1 Acre 28 guntas from

    defendant no.2 under registered Sale Deed dated 06.03.2004

    and was in lawful possession and enjoyment and his name

    entered in revenue records. He had resisted plaintiff attempt to

    interfere with his possession on 02.08.2005. He also stated, as

    on date of suit, defendant no.2 was in possession of

    Sy.no.67/3, situated towards southern side of his property. And

    further that plaintiff was in possession of Sy.no.67/2, but never

    in possession of Sy.no.67/1 or Sy.no.67/3. Hence, suit was

    without cause of action and liable for dismissal. He also sought

    counter-claim for declaration of his title over Sy.no.67/1

    measuring 1 Acre and 28 guntas and for permanent injunction

    restraining plaintiff etc. from interfering with his possession

    over said property.

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    6. Based on pleadings, trial Court framed following:

    ISSUES

    1) Whether the plaintiff proves that he is
    in possession of suit schedule property
    on the basis of sale agreement dated
    15.08.66 and as on the date of suit?

    2) Whether the plaintiff proves that 1st
    and 2nd defendants have colluded
    together and obtained decree in OS
    no.135/2004?

    3) Whether the plaintiff proves that 1st
    defendant has no right to sell the suit
    schedule property in favour of 2nd
    defendant?

    4) Whether the plaintiff proves that 2nd
    defendant has no saleable interest to
    sell the suit schedule property in
    favour of defendant no.3?

    5) Whether the plaintiff proves the
    alleged interference?

    6) Whether the plaintiff is entitled for the
    relief as claimed in the plaint?

    7) What order or decree?

    7. In trial, plaintiff examined himself and three others as

    PWs.1 to 4 and got marked Exs.P1 to P11. In rebuttal,

    defendant no.2 examined herself as DW.1 and got marked

    Exs.D1 to D16.

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    8. On consideration, trial Court answered issues no.1, 5

    and 6 in negative, issues no.2 to 4 as not surviving for

    consideration and issue no.7 by dismissing suit with costs.

    Aggrieved, plaintiff preferred RA no.170/2008 on various

    grounds. Based on same, first appellate Court framed following:

    POINTS

    1) Whether this appellant/plaintiff proves
    that he is in possession and
    enjoyment of the suit schedule
    property?

    2) Whether the judgment and decree
    passed by the trial Court under appeal
    is perverse, capricious and arbitrary
    and it calls for any interference by this
    Court?

    3) What order?

    9. And answering points no.1 and 2 in affirmative and

    point no.3, it allowed appeal, set-aside judgment and decree of

    trial Court and decreed plaintiff’s suit permanently restraining

    defendants from interfering with plaintiff’s possession and

    enjoyment of suit property and holding judgment and decree

    passed in OS no.135/2004 as not binding on plaintiff.

    Consequently, counter claim of defendant no.3 was dismissed

    with cost. Aggrieved thereby, only defendant no.2 is in appeal.
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    10. It was submitted, judgment and decree of first

    appellate Court was contrary to law and evidence on record. It

    erred in granting injunction, though purchase of property by

    defendant no.2 under registered Sale Deed 19.09.1992 with

    same boundary description as suit property and not

    Sy.no.67/1, was undisputed. It was submitted, boundary

    description prevailed over Survey number and extent. It was

    submitted, Iyyanna was owner of land measuring 1 Acre 28

    guntas in Sy.no.67/1 and under Ex.D15 – Gift Deed dated

    17.05.1948, Iyyanna gifted said property to Nanjappa and

    Venkatappa mentioning boundaries as:

    East: Changappa’s land;

    West: Mustafa’s land;

    North: Patel Narayana Gowda’s land;

    South: Doddamunıshamy’s land.

    11. It was submitted, Patel Narayana Gowda, father of

    Giregowda and grandfather of plaintiff, was owner of 0.35

    guntas of land in Sy.no.67/2. Chikkamuniswamy was owner of

    land measuring 2 Acres 24 guntas in Sy.no.67/3. Under Sale

    Deed dated 07.06.1951, Chikkamuniswamy sold said property

    in favour of Abdul Azeez. But by erroneously mentioning 1 Acre

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    28 guntas in Sy.no.67/1 instead of 2 Acres 24 guntas in

    Sy.no.67/3, in sale deed. Thereafter, defendant no.2 purchased

    property from Abdul Jabbar S/o Abdul Azeez under registered

    Sale Deed dated 19.09.1992, wherein error in survey number

    and extent continued, but boundary description remained

    consistent and identical to suit property. It was submitted,

    comparison of boundaries in Sale Deeds dated 07.06.1951 and

    19.09.1992 was as follows:

       SCHEDULE IN SALE                       PLAINT SCHEDULE
              DEEDS
      East by:  Ireppa          Uppukunte Changappa (Ireppa's father)
      West by: Gire Gowda       Another property of plaintiff (Gire Gowda
                                is father of plaintiff)
      North       Pichagundla   Property of Iyyanna (Venkatappa - foster
      by:         Venkatappa    son of Iyyanna got it under gift deed
                                dated 17.05.1948)
      South       Gire Gowda    Another property of plaintiff (Gire
      by:                       Gowda)
                                (Note: Gire Gowda is son of Narayanag
                                Gowda @ Patel Narayana Gowda)
    
    
        12. Thus, property        described      under   sale   deeds   and
    
    

    property described in suit property were one and same.

    13. It was submitted, plaintiff claims to be son of

    Giregowda who was only holder of agreement of sale dated

    15.08.1966, allegedly executed by Chikkamuniswamy in

    respect of Sy.no.67/3. It was submitted, plaintiff claim that

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    Chikkamuniswamy was original owner of Sy.no.67/3 and that

    defendants no.1 and 2 played fraud in obtaining compromise

    decree in OS no.135/2004 and attempted to interfere with

    plaintiff’s possession over suit property. It was submitted,

    defendant no.1 filed written statement denying right, title and

    possession of plaintiff and specifically denied execution of Ex.P1

    – alleged agreement of sale dated 15.08.1966. And in her

    written statement, defendant no.2 claimed, she purchased suit

    property under Ex.D6 – registered sale deed dated 19.09.1992

    and was absolute owner in possession thereof. Defendants

    contended, though there were errors in survey number and

    extent of demised land in sale deeds, boundary description

    consistently referred to suit property.

    14. And said error was rectified under Ex.D1 – decree in

    OS no.135/2004 and Ex.D7 – revenue entries made in name of

    defendant no.2. Thus, plaintiff had no right, title or interest

    over suit property and had attempted to take undue advantage

    of clerical error in description of property in sale deed, and filed

    frivolous suit based on alleged Agreement of sale dated

    15.08.1966 (Ex.P-1) in order to lay claim over property

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    belonging to defendant no.2. In view of above, suit for bare

    injunction was not maintainable in law, particularly when title

    over suit property was seriously disputed.

    15. It was submitted, trial Court dismissed suit mainly on

    ground that plaintiff’s father who allegedly obtained agreement

    in year 1966, made no effort to obtain registered sale deed as

    well as on ground that plaintiff failed to establish his possession

    over suit property, on date of filing of suit. It also relied on

    assertion by defendant no.3, owner of Sy.no.67/1 in his written

    statement that defendant no.2 was in possession of Sy.no.67/3

    and holding if plaintiff was in possession of suit property, he

    would have produced other supporting documents and not rely

    only on Exs.P1 and P2. It was submitted, revenue records

    produced by defendants, on contrary, showed name of

    defendant no.2 entry in revenue records in respect of suit

    property as on date of suit. Thus, even if defendants pleaded

    mistake in mentioning correct survey number and extent, trial

    Court applied correct proposition of law that plaintiff must

    succeed on strength of his own case and not on weakness of

    defendant’s case and dismissed suit. And reversal of said

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    findings by first appellate Court was defective and prayed for

    allowing appeal on following substantial question of law:

    “When trial Court dismissed plaintiff’s suit on
    appreciation of evidence on record, whether first
    appellate Court was justified in reversing it
    without assigning consistent and cogent reasons
    and thereby committed illegality?”

    16. It was submitted, Ex.P1 was un-registered deed, held

    by trial Court to be concocted. And as per recitals, it was sale

    deed and therefore, compulsorily registered as per Section 17

    (1) (b) of Registration Act. Being unregistered, it was

    inadmissible in evidence. Further, being insufficiently stamped

    Ex.P1 was also hit by Article 34 of Stamp Act and therefore,

    could not be relied even for collateral purposes. It was

    submitted, Hon’ble Supreme Court in case of Avinash Kumar

    Chauhan v. Vijay Krishna Mishra, reported in AIR 2009 SC

    1489, held:

    “7. It is now well settled that there is no prohibition
    under Section 49 of the Registration Act, to receive an
    unregistered document in evidence for collateral
    purpose. But the document so tendered should be
    duly stamped or should comply with the requirements
    of Section 35 of the Stamp Act, if not stamped, as a
    document cannot be received in evidence even for

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    collateral purpose unless it is duly stamped or duty
    and penalty are paid under Section 35 of the Stamp
    Act.”

    17. It was further submitted, plaintiff pursued suit for

    bare injunction, even when defendant no.2 in para-1 of her

    written statement raised ground about its maintainability. In

    later paras, defendant no.2 specifically denied plaintiff’s title

    over suit property and in para-15, claimed title over suit

    property on basis of purchased from defendant no.1. In view of

    above, suit for bare injunction would not be maintainable as

    held by Hon’ble Supreme Court in case of Anathula Sudhakar

    v. P. Buchi Reddy (Dead) By LRs & Ors., reported in AIR

    2008 SC 2033:

    “11.3. Where the plaintiff is in possession, but his title
    to the property is in dispute, or under a cloud, or
    where the defendant asserts title thereto and there is
    also a threat of dispossession from defendant, the
    plaintiff will have to sue for declaration of title and the
    consequential relief of injunction. Where the title of
    plaintiff is under a cloud or in dispute and he is not in
    possession or not able to establish possession,
    necessarily the plaintiff will have to file a suit for
    declaration, possession and injunction.”

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    18. And by this Court in case of Smt.Nirmala v. Sri

    Naveen Chhaggar, reported in AIR 2007 Kar 40 holding:

    “34. … which had been filed initially for declaration
    and consequential injunction, wherein the first
    defendant had denied title of the plaintiff, the suit fails
    unless the prayer for declaration is also made good.
    The suit in law is not maintainable, as unless
    declaration is made in favour of the plaintiff, the
    continued possession of the plaintiff particularly in the
    light of denial by the first defendant cannot be
    recognized in law, more so when the first defendant
    has also claimed to herself title in the property and
    had denied the title of the plaintiff. In fact, when the
    plaintiff filed a memo for deletion of the prayer for
    declaration subsequent to the trial court framing
    issues on this aspect ie. issue no.1, the plaintiffs suit
    should have been dismissed then and there.”

    19. Further, defendant no.2 had raised objection at time

    of marking of Agreement of Sale as Ex.P1. Trial Court recorded

    objections and though marking was subject to objections, it

    failed to adjudicate on admissibility. Therefore, Ex.P1 had no

    evidentiary value. Besides, no documents produced by plaintiff

    to establish his possession over suit property as on date of suit.

    Therefore, suit was rightly dismissed by trial Court.

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    20. Without considering admissibility of Ex.P1 and without

    noting whether un-registered and under-stamped deed would

    be admissible in evidence, in view of bar under Section 17 (1)

    (b) read with Section 49 of Registration Act and Section 34 of

    Stamp Act, first appellate Court erroneously reversed judgment

    and decree of trial Court. Main reason assigned was that Ex.P1

    was 30 years old document and entitled for presumption in law.

    Further, Hon’ble Supreme Court in Namdeo Gajre v. Narayan

    Bapuji Dhotra, reported in 2004 (8) SCC 614, held:

    “13. The agreement to sell does not create an interest
    of the proposed vendee in the suit property. As per
    Section 54 of the Act, the title in immovable property
    valued at more than Rs 100 can be conveyed only by
    executing a registered sale deed. Section 54
    specifically provides that a contract for sale of
    immovable property is a contract evidencing the fact
    that the sale of such property shall take place on the
    terms settled between the parties, but does not, of
    itself, create any interest in or charge on such
    property. It is not disputed before us that the suit land
    sought to be conveyed is of the value of more than Rs

    100. Therefore, unless there was a registered
    document of sale in favour of Pishorrilal (the proposed
    transferee) the title of the suit land continued to vest
    in Narayan Bapuji Dhotra (original plaintiff) and
    remain in his ownership. This point was examined in

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    detail by this Court in State of U.P. v. District
    Judge
    [(1997) 1 SCC 496] and it was held thus: (SCC
    pp. 499-500, para 7)

    “7. Having given our anxious consideration to the
    rival contentions we find that the High Court with
    respect had patently erred in taking the view that
    because of Section 53-A of the Transfer of
    Property Act the proposed transferees of the land
    had acquired an interest in the lands which would
    result in exclusion of these lands from the
    computation of the holding of the tenure-holder
    transferor on the appointed day. It is obvious
    that an agreement to sell creates no interest in
    land. As per Section 54 of the Transfer of
    Property Act, the property in the land gets
    conveyed only by registered sale deed. It is not
    in dispute that the lands sought to be covered
    were having value of more than Rs

    100. Therefore, unless there was a registered
    document of sale in favour of the proposed
    transferee agreement-holders, the title of the
    lands would not get divested from the vendor
    and would remain in his ownership. There is no
    dispute on this aspect. However, strong reliance
    was placed by learned counsel for Respondent 3
    on Section 53-A of the Transfer of Property Act.
    We fail to appreciate how that section can at all
    be relevant against the third party like the
    appellant State. That section provides for a shield

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    of protection to the proposed transferee to
    remain in possession against the original owner
    who has agreed to sell these lands to the
    transferee if the proposed transferee satisfies
    other conditions of Section 53-A. That protection
    is available as a shield only against the
    transferor, the proposed vendor, and would
    disentitle him from disturbing the possession of
    the proposed transferees who are put in
    possession pursuant to such an agreement. But
    that has nothing to do with the ownership of the
    proposed transferor who remains full owner of
    the said lands till they are legally conveyed by
    sale deed to the proposed transferees. Such a
    right to protect possession against the proposed
    vendor cannot be pressed in service against a
    third party like the appellant State when it seeks
    to enforce the provisions of the Act against the
    tenure-holder, proposed transferor of these
    lands.”

    (emphasis supplied)

    There was no agreement between the appellant and
    the respondent in connection with the suit land. The
    doctrine of part-performance could have been availed
    of by Pishorrilal against his proposed vendor subject,
    of course, to the fulfillment of the conditions
    mentioned above. It could not be availed of by the
    appellant against the respondent with whom he has
    no privity of contract. The appellant has been put in

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    possession of the suit land on the basis of an
    agreement of sale not by the respondent but by
    Pishorrilal, therefore, the privity of contract is between
    Pishorrilal and the appellant and not between the
    appellant and the respondent. The doctrine of part-
    performance as contemplated in Section 53-A can be
    availed of by the proposed transferee against his
    transferor or any person claiming under him and not
    against a third person with whom he does not have a
    privity of contract.”

    21. Consequently, there no enforceable right vested in

    favour of agreement of sale holder. Even in case of Rohtash

    Singh v. Sanwal Ram, reported in 2018 SCC OnLine P&H

    7606, it was held:

    “33. The plaintiff has not taken any step in
    furtherance of this writing as it was taken as
    document of sale of plot. In plaint and evidence, this
    writing was presenting and referred as document of
    sale of plot. It is also recited in the writing that plot
    has been sold to plaintiff. Even Courts below have
    referred to this as document of sale. The transaction
    of immovable property worth more than Rs. 100/- can
    be made by a registered document. This finds support
    from the observations of Hon’ble Apex Court in case
    of Guman Singh v. Manga Singh (D) by LRs2 (2016) 3
    RCR (Civil) 592, wherein, it has been observed as
    follows:

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    “From the facts narrated above, it becomes
    manifest that the purported sale deed dated
    02.05.1966 was never registered and remained
    an unregistered document. Even as per the
    appellants, consideration for the suit land was
    Rs. 9000/-, i.e., more than Rs. 100. The
    transaction pertains to immovable property. Such
    a sale deed was compulsorily registrable under
    Section 17 of the Indian Registration Act. The
    consequence of non-registration are provided in
    Section 49 thereof. Such document cannot be led
    into evidence and no rights indicated in the said
    document can be pressed and claimed. The
    document can be seen only for collateral
    purposes. In the instant case, on the basis of the
    said document, the appellants are claiming
    ownership which cannot be countenanced. Thus,
    the appellants cannot claim that they had
    become owners of the suit land on the basis of
    document dated 02.05.1966. Insofar as rights
    claimed on the basis of Section 53 A of the Act
    are concerned, that deals with only part-

    performance. It has been held by this Court in
    ‘Ranchhoddas Chhaganlal v. Devaji Supdu
    Dorik
    ‘[(1977) 3 SCC 584] that the plea of
    Section 53 A of the Act can be taken only in
    defence…………………………….”.

    22. In light of above submissions, learned counsel sought

    for answering substantial question of law in favour of defendant

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    no.2, allow appeal and restore judgment and decree passed by

    trial Court.

    23. On other hand, Sri V. Vinod Reddy, learned counsel

    for plaintiff opposed appeal. It was submitted, OS no.109/2005

    was instituted by plaintiff for permanent injunction and for

    declaration that judgment and decree dated 08.10.2004 passed

    in OS no.135/2004 was not binding on plaintiff. It was

    submitted, suit property was land bearing Sy.no.67/3

    measuring 2 Acres 24 guntas consisting of eucalyptus

    plantation, situated at Pindinagara village, Yeldur Hobli,

    Srinivasapura Taluk, bounded on:

    East: Property of Uppakunta Chikka Changappa.
    West: Another property of plaintiff.
    North: Property of Iyanna.

    South: Another property of plaintiff.

    24. It was submitted, plaintiff’s case was that he acquired

    possession of suit property from his father Giregowda who died

    about 9 years prior to suit. Plaintiff further stated that his

    father acquired possession of suit property from its previous

    owner Chikkamuniswamy s/o Sonnappa with consent who was

    resident of Pindiganagara village in year 1964-65. And

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    considering his possession, his name was entered in RTC for

    years 1964 to 1970 as per Ex.P2. And that Chikkamuniswamy

    had executed an agreement for sale in favour of plaintiff’s

    father Giregowda on 15.08.1966 as per Ex.P1. That

    Chikkamuniswamy and his two brothers i.e. Byrappa and

    Muniswamy died unmarried and issueless.

    25. Plaintiff further stated that said Chikkamuniswamy

    executed registered sale deed dated 07.06.1951 as per Ex.P3

    selling Sy.no.67/1 measuring 1 Acre 28 guntas in favour of

    Abdul Azeez, with boundaries:

    East By: Chenga Gowda,
    West By: Narayana Gowda,
    North By: Annappa,
    South By: Patil Narayanagowda.

    26. Subsequently, his son – defendant no.1 – Abdul

    Jabbar S/o Abdul Azeez and owner of Sy.no.67/1 measuring 1

    Acre 28 guntas and another land bearing Sy.no.43/3 measuring

    1 Acre 8 guntas of Pindinagara village to defendant no.2 –

    Jayamma under registered sale deed dated 19.09.1992 as per

    Ex.D6, with following boundaries:

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    East By: Erappa,
    West by: Giregowda (Father of Plaintiff)
    North by: Pichaguntala Venkatappa and
    South by: Property of Giregowda (Father of plaintiff).

    27. Thereafter, defendant no.2 sold Sy.no.67/1 measuring

    1 Acre 28 guntas to defendant no.3 – Venkatappa under

    registered sale deed dated 06.03.2004 as per Ex.P5 by

    changing boundaries as:

    East by: Uppakunte Erappa,
    West by: Parvathamma,
    North by: G. Manjunath and
    South by: Remaining extent of Jayamma.

    28. Thus, it was evident that by cleverly changing

    boundaries defendant no.2, sold Sy.no.67/1 measuring 1 Acre

    28 guntas. After sale, defendant no.2 wanted to rectify sale

    deed executed by her vendor Abdul Jabbar in respect of

    Sy.no.67/1 measuring 1 Acre and 28 guntas and filed OS

    no.135/2004 on 30.08.2004. Rectification sought was to

    change survey number of land sold from Sy.no.67/1 measuring

    1 Acre 28 guntas to Sy.no.67/3 measuring 2 Acres 24 guntas.

    It was settled law that after sale of property, Jayamma had no

    right to rectify sale deed, especially so when Sy.no.67/3

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    belonged to plaintiff. When based on collusive compromise

    decree, defendants tried to interfere with plaintiff’s possession

    over suit property, present suit was filed for permanent

    injunction and to hold decree passed in OS no.135/2004 as not

    binding on plaintiff. Trial Court erroneously dismissed suit, but

    in appeal, first appellate Court, decreed suit. And against

    divergent findings, this appeal was filed.

    29. It was submitted, in order to establish possession over

    suit property, plaintiff relied on Exs.P1 and P2. It was

    submitted, Ex.P4 – sale deed executed by defendant no.1 in

    favour of defendant no.2 clearly refers to property of

    Giregowda on southern side. Even Exs.D11 to D14 and Ex.D16

    show suit property was in plaintiff’s vendor name, establishing

    plaintiff’s possession over suit property.

    30. It was submitted, first appellate Court framed proper

    points for consideration and observed Ex.P1 indicated sale of

    suit property in favour of plaintiff’s father and Ex.P2 – RTC

    entries for years 1964-1970 bearing name of plaintiff’s father

    gave rise to presumption about possession. Further, Ex.P1

    being a 30 year old document and produced from proper

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    custody was presumed to be genuine and even though Ex.P1

    was unregistered and marked subject to objection, plaintiff was

    required to pay only stamp duty and penalty. It also noted that

    deposition of PWs.2 to 4 supported plaintiff. Thus judgment and

    decree passed by first appellate Court was on basis of material

    on record and well reasoned.

    31. In support of his submission that it was not necessary

    for person claiming injunction to prove title over suit property

    and it would suffice if he proves his lawful possession and there

    was attempt to same by person without title, learned counsel

    relied on decision in case of Rame Gowda (Dead) By LRs. v.

    M. Varadappa Naidu (Dead) By LRs. and Anr., reported in

    (2004) 1 SCC 769, wherein it is held:

    “11. In the present case the trial court has found
    the plaintiff as having failed in proving his title.
    Nevertheless, he has been found to be in settled
    possession of the property. Even the defendant
    failed in proving his title over the disputed land
    so as to substantiate his entitlement to evict the
    plaintiff. The trial court, therefore, left the
    question of title open and proceeded to
    determine the suit on the basis of possession,
    protecting the established possession and
    restraining the attempted interference

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    therewith. The trial court and the High Court
    have rightly decided the suit. It is still open to
    the defendant-appellant to file a suit based on
    his title against the plaintiff-respondent and
    evict the latter on the former establishing his
    better right to possess the property.

    12. The learned counsel for the appellant relied on the
    Division Bench decision in Dasnam Naga
    Sanyasi v. Allahabad Development Authority
    [AIR
    1995 All 418] and a Single Judge decision in Kallappa
    Rama Londa v. Shivappa Nagappa Aparaj
    [AIR 1995
    Kant 238] to submit that in the absence of
    declaration of title having been sought for, the
    suit filed by the plaintiff-respondent was not
    maintainable and should have been dismissed
    solely on this ground. We cannot agree.
    Dasnam
    Naga Sanyasi
    case [AIR 1995 All 418] relates to the
    stage of grant of temporary injunction wherein, in the
    facts and circumstances of that case, the Division
    Bench of the High Court upheld the decision of the
    court below declining the discretionary relief of ad
    interim injunction to the plaintiff on the ground that
    failure to claim declaration of title in the facts of that
    case spoke against the conduct of the plaintiff and was
    considered to be “unusual”.
    In Kallappa Rama Londa
    case [AIR 1995 Kant 238] the learned Single Judge
    has upheld the maintainability of a suit merely seeking
    injunction, without declaration of title and on dealing
    with several decided cases the learned Judge has

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    agreed with the proposition that where the suit for
    declaration of title and injunction is filed, and the title
    is not clear, the question of title will have to be kept
    open without denying the plaintiff’s claim for
    injunction in view of the fact that the plaintiff has
    been in possession and there is nothing to show that
    the plaintiff has gained possession by any unfair
    means just prior to the suit. That is the correct
    position of law. In Fakirbhai Bhagwandas v. Maganlal
    Haribhai
    [AIR 1951 Bom 380 : 53 Bom LR 163] a
    Division Bench spoke through Bhagwati, J. (as his
    Lordship then was) and held that it is not necessary
    for the person claiming injunction to prove his title to
    the suit land. It would suffice if he proves that he was
    in lawful possession of the same and that his
    possession was invaded or threatened to be invaded
    by a person who has no title thereof. We respectfully
    agree with the view so taken. The High Court has kept
    the question of title open. Each of the two contending
    parties would be at liberty to plead all relevant facts
    directed towards establishing their titles, as
    respectively claimed, and proving the same in duly
    constituted legal proceedings. By way of abundant
    caution, we clarify that the impugned judgment shall
    not be taken to have decided the question of title to
    the suit property for or against any of the contending
    parties.”

    (emphasis supplied)

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    32. For same proposition, he relied on decision in case of

    Ramji Rai and Anr. v. Jagdish Mallah (Dead) Through

    LRs. and Anr., reported in (2007) 14 SCC 200, wherein it is

    held:

    “10. On the finding of facts, we do not wish to
    interfere. There is no reason to reverse the concurring
    findings. However, suffice it to state that the lower
    appellate court should have dismissed the suit filed by
    the appellants only on the ground that the appellants
    had failed to prove that they were in possession of the
    disputed lands. Under Section 38 of the Specific
    Relief Act, 1963 an injunction restraining
    disturbance of possession will not be granted in
    favour of the plaintiff who is not found to be in
    possession. In the case of a permanent
    injunction based on protection of possessory
    title in which the plaintiff alleges that he is in
    possession, and that his possession is being
    threatened by the defendant, the plaintiff is
    entitled to sue for mere injunction without
    adding a prayer for declaration of his rights.
    (See Mulla’s Indian Contract and Specific Relief Acts,
    12th Edn., p. 2815)”

    (emphasis supplied)

    33. On admissibility of Ex.P1, learned Counsel relied on

    decision of Hon’ble Supreme Court in case of R.V.E.

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    Venkatachala Gounder v. Arulmigu Viswesaraswami and

    V.P. Temple and Anr., reported in (2003) 8 SCC 752

    holding:

    “20. The learned counsel for the defendant-
    respondent has relied on Roman Catholic
    Mission v. State of Madras
    [AIR 1966 SC 1457] in
    support of his submission that a document not
    admissible in evidence, though brought on record, has
    to be excluded from consideration. We do not have
    any dispute with the proposition of law so laid down in
    the abovesaid case. However, the present one is a
    case which calls for the correct position of law being
    made precise. Ordinarily, an objection to the
    admissibility of evidence should be taken when it is
    tendered and not subsequently. The objections as to
    admissibility of documents in evidence may be
    classified into two classes: (i) an objection that the
    document which is sought to be proved is itself
    inadmissible in evidence; and (ii) where the objection
    does not dispute the admissibility of the document in
    evidence but is directed towards the mode of
    proof alleging the same to be irregular or insufficient.
    In the first case, merely because a document has
    been marked as “an exhibit”, an objection as to its
    admissibility is not excluded and is available to be
    raised even at a later stage or even in appeal or
    revision. In the latter case, the objection should
    be taken when the evidence is tendered and
    once the document has been admitted in

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    evidence and marked as an exhibit, the objection
    that it should not have been admitted in
    evidence or that the mode adopted for proving
    the document is irregular cannot be allowed to
    be raised at any stage subsequent to the
    marking of the document as an exhibit. The
    latter proposition is a rule of fair play. The crucial
    test is whether an objection, if taken at the
    appropriate point of time, would have enabled the
    party tendering the evidence to cure the defect and
    resort to such mode of proof as would be regular. The
    omission to object becomes fatal because by his
    failure the party entitled to object allows the party
    tendering the evidence to act on an assumption that
    the opposite party is not serious about the mode of
    proof. On the other hand, a prompt objection does not
    prejudice the party tendering the evidence, for two
    reasons: firstly, it enables the court to apply its mind
    and pronounce its decision on the question of
    admissibility then and there; and secondly, in the
    event of finding of the court on the mode of proof
    sought to be adopted going against the party
    tendering the evidence, the opportunity of seeking
    indulgence of the court for permitting a regular mode
    or method of proof and thereby removing the
    objection raised by the opposite party, is available to
    the party leading the evidence. Such practice and
    procedure is fair to both the parties. Out of the two
    types of objections, referred to hereinabove, in
    the latter case, failure to raise a prompt and

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    timely objection amounts to waiver of the
    necessity for insisting on formal proof of a
    document, the document itself which is sought
    to be proved being admissible in evidence. In the
    first case, acquiescence would be no bar to raising the
    objection in a superior court.”

    (emphasis supplied)

    34. Sri Sampath A, learned counsel for defendant no.3

    supported appellant.

    35. Heard learned counsel, perused impugned judgment

    and decree and records.

    36. This appeal is by defendant no.2 being aggrieved by

    divergent finding of first appellate Court in suit for permanent

    injunction and declaration. As rightly observed by both Courts,

    suit herein was for bare injunction to restrain defendants from

    interfering with plaintiff’s peaceful possession over suit property

    was main and contentious relief and other prayer was for

    declaring decree in OS no.135/2004 as not binding on plaintiff.

    37. It would also not be in dispute that in suit for

    permanent injunction, plaintiff would require to establish his

    lawful possession over suit property, illegal interference by

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    defendants and irreparable loss and injury being caused to

    plaintiff in case injunction is refused.

    38. On behalf of plaintiff, suit claim is based on alleged

    execution of Ex.P1 – Agreement of sale by Chikkamuniswamy

    earlier owner of suit property on 15.08.1966 by accepting

    entire sale consideration and delivery of possession to plaintiff’s

    father. Plaintiff also relies upon RTC of year 1964 to 1970

    marked as Ex.P2, to corroborate Ex.P1 as well as to establish

    his possession over suit property.

    39. Challenge by defendant no.2 – appellant is on three

    specific grounds. Firstly, relying on Avinash Kumar‘s case

    (supra), it is contended, when trial Court had opined Ex.P1 was

    concocted and even as per recitals was in nature of sale deed

    and being unregistered and improperly stamped was hit by

    Section 49 of Registration Act as well as Section 34 of Stamp

    Act, it cannot even be looked into for collateral purposes.

    Secondly, referring to decision in Anathula Sudhakar and

    Smt.Nirmala’s cases (supra), and contention about

    maintainability of suit raised in written statement based on

    denial of plaintiff’s title and defendant no.2 setting up rival title

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    based on Ex.D6 – sale deed, it is contended suit for bare

    injunction without declaration of title would not be

    maintainable. And thirdly, relying upon Namdev Gajre and

    Rohtash Singh’s cases (supra), it is contended as per Ex.P1,

    plaintiff at best could claim to be holder of an agreement of

    sale which would not create any interest in immovable property

    and therefore suit for injunction would not be maintainable.

    40. On other hand, appeal is opposed by plaintiff on

    ground that suit property i.e. Sy.no.67/3 measuring 2 Acres 24

    guntas with definite boundaries acquired by plaintiff’s father

    from admitted original owner Chikkamuniswamy who executed

    Ex.P1 – agreement of sale on 15.08.1966 by receiving entire

    sale consideration and delivered possession. It is stated that on

    death of original owner and his brothers issueless and

    unmarried, plaintiff’s father and thereafter plaintiff continued in

    possession. And though Ex.P1 was unregistered, fact that name

    of plaintiff’s father was entered in revenue records in

    cultivator’s Column from 1964-65 onwards as per Ex.P2, duly

    corroborated plaintiff’s claim under Ex.P1. Thus, observation by

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    trial Court that Ex.P1 was created for purposes of suit was

    without basis or detailed reasoning and presumptuous.

    41. It is also contended that on other hand, claim of

    defendants over suit property was on basis of sale deeds, with

    different survey numbers and extents and Ex.P7 being collusive

    decree obtained behind back of plaintiff as well as without

    admitted original owner Chikkamuniswamy being made a party.

    Therefore, plaintiff’s possession over suit property stood

    established by Exs.P1 and P2 as well as by Ex.P4 – sale deed

    referring to property of plaintiff’s father as its southern

    boundary. It was submitted, first appellate Court rightly applied

    law that Ex.P1 being a 30 year old document and produced

    from proper custody attracted presumption about its genuinity.

    Relying on Ramegouda and Ramji Rai’s cases (supra), it is

    contended in a suit for bare injunction plaintiff was not required

    to establish title and it would suffice if he establishes

    possession and interference by person without title over it.

    Relying on Venkatachal Gounder’s case (supra), it is

    contended question regarding admissibility would stand waived

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    on marking of a document. Therefore, no substantial question

    of law would arise for consideration.

    42. Thus, there is no dispute about fact that plaintiff’s suit

    for permanent injunction against defendants herein in respect

    of suit property is based on Ex.P1 – which is an unregistered

    Agreement of sale dated 15.08.1966. While, defendants’ claim

    right over suit property on basis of registered sale deed

    executed by same original owner as in case of plaintiff, but

    based on further assertion that there was mistake in

    mentioning correct survey number and extent in said sale deed,

    which percolated into subsequent alienations and corrected

    under compromise decree. There is also a counter claim by

    defendant no.3, but for permanent injunction against plaintiff.

    Neither of parties have sought declaration of their respective

    title over suit property.

    43. As rightly, contended, in a suit for permanent

    injunction, it would not be necessary for trial Court to decide on

    title. And it would be necessary only in case of clear and

    specific claim of ownership over suit property by defendants

    such as those based on registered deeds.

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    44. In instant case, though claim of defendants is specific

    and based on registered deeds, said deeds even according to

    defendants were with error in mentioning survey numbers and

    extents. Though they claim that boundary description would be

    same as suit property herein and as such prevail over

    erroneous survey numbers and extent, same need not detain

    this Court on said contentious claim, since defendants have not

    made any counter-claim for declaration of title nor weakness of

    defendants’ case can benefit plaintiff.

    45. Pivotal fact herein is about claim of plaintiff being

    based on an unregistered and improperly stamped agreement

    of sale, noted by trial Court to be in nature of sale deed, as per

    recitals. There cannot be dispute about principle of law that an

    unregistered and/or under-stamped agreement of sale cannot

    be looked into as evidence under Section 49 of Registration Act

    as well as under Section 34 of Karnataka Stamp Act.

    46. While passing impugned judgment, trial Court took

    note of rival contentions and observed plaintiff’s suit was for

    permanent injunction and in view of prayer no.2, it would not

    be necessary for it to decide on validity of decree in OS

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    no.135/2004 and it would suffice to examine whether it binds

    plaintiff. It noted oral and documentary evidence of plaintiff. It

    noted consistency between pleadings, oral evidence and

    documentary evidence and nothing material being elicited by

    defendants. It also noted absence of cross examination of

    PW.4, son of scribe of Ex.P1 – Agreement of sale, who

    identified his father’s signature on it. It also noted rival oral and

    documentary evidence. It noted that in her cross-examination,

    defendant no.2 as DW.1 admitted lands bearing Sy.nos.67/1,

    67/2 and 67/3 were separate and distinct property. It noted

    claim of plaintiff pivoted on Ex.P1 – Agreement of sale and

    Ex.P2 – RTC from 1964-65 to 1969-70. It noted that plaintiff

    could not sustain claim of being in lawful possession based only

    on Ex.P1 alone and suspected it to be concocted for purposes of

    suit. It noted that in cultivator’s Column in Ex.P2, name of

    plaintiff’s father as well as Pichuguntla Venkatappa was

    mentioned and there was no explanation about Pichuguntla

    Venkatappa. Based on same, it concluded, father of plaintiff

    was not in exclusive possession of suit property. It also drew

    adverse inference against plaintiff’s father for not making any

    efforts to have sale deed registered. It opined, in case original

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    owner and his brothers passed away without legal heirs,

    property would eschew to Government would also go against

    plaintiff.

    47. It noted failure on part of plaintiff to establish his

    possession over suit property as on date of suit. It also noted

    there was no reason to disbelieve written statement of

    defendant no.3 stating Sy.no.67/3 was in possession of

    defendant no.2 and Sy.no.67/2 was in possession of plaintiff. It

    observed, plaintiff had not disputed such assertion by

    defendant no.3 would be part of evidence that plaintiff was not

    in possession of suit property and except Exs.P1 and P2 no

    other documents were produced by plaintiff during filing of suit.

    It noted Ex.D2 – MR no.3/2004-05 was certified on 19.10.2004

    in favour of defendant no.2. And suit was filed 10 months

    thereafter. Therefore, plaintiff failed to prove his possession

    over suit property and there would be no question of

    interference by defendants.

    48. While considering points no.1 and 2, first appellate

    Court observed it was incumbent on plaintiff to establish his

    lawful possession over suit property. It noted plaintiff reiterated

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    plaint averments, examined three other witnesses and got

    marked Exs.P1 to P11. On perusal of Ex.P1, it observed it was

    unregistered sale agreement executed by Chikkamuniswamy,

    accepting entire sale consideration and handing over

    possession to plaintiff’s father. And from recitals, Ex.P1 was in

    fact a sale deed. However, by observing that even in such case,

    as it was an ancient document and as it was marked, there

    would be no scope for defendants objecting against same and

    plaintiff would only require to pay stamp duty/penalty.

    49. It also noted Ex.P2 – RTC from 1964 to 1970 showed

    name of Chikkamuniswamy in Column no.9 and name of

    plaintiff’s father in Column no.12 (2) in respect of suit property.

    And held, Exs.P1 and P2 established plaintiff’s possession over

    suit property and defendants not concerned with it. It noted

    since plaintiff’s possession over suit property was without

    interference for more than four decades, plaintiff was entitled

    for protection. It noted, though defendant no.2 to have

    purchased suit property from defendant no.1 under Ex.D6 –

    registered sale deed, he claimed, there was error in mentioning

    correct survey number and extent, which percolated into

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    subsequent alienations, and error was got rectified by Ex.P7 –

    compromise decree and mutation of revenue records in

    pursuance of same. It noted Ex.D11 – RTC of year 2002-03 in

    respect of Sy.no.67/3 showed entry of name of defendant no.1

    in Column no.9 as successor (Pouti Waras), which would be

    impossible and indicated manipulation of revenue records and

    also noting Ex.D13 issued by Taluka Surveyor showed

    Chikkamuniswamy’s possession of 2 Acres 24 guntas in

    Sy.no.67/3 and OS no.135/2004 for rectification of sale deed

    was behind back of plaintiff, it held same to be not binding.

    50. Insofar issues no.2, 3 and 4 answered by trial Court

    as not surviving for consideration, it held same to be contrary

    to Order XIV Rule 2 of CPC vitiating judgment and decree of

    trial Court. Based on same, it set-aside judgment and decree of

    trial Court. And for failure by defendant no.3 to enter witness-

    box, it junked counter claim of defendant no.3.

    51. Thus, neither of Courts answered issues no.2, 3 and 4

    and committed error. But, same will not give rise to any

    substantial question of law, as indisputably plaintiff herein is

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    claiming to protect his possession over suit property under

    agreement of sale.

    52. On question, whether an agreement of sale would

    vest any right, Hon’ble Supreme Court in case of RBANMS

    Educational Institution v. B. Gunashekar, reported in 2025

    SCC OnLine SC 793, held:

    “15.1. Undoubtedly, a sale deed, which amounts to
    conveyance, has to be a registered document, as
    mandated under Section 17 of the Registration Act,
    1908. On the other hand, an agreement for sale,
    which also requires to be registered, does not amount
    to a conveyance as it is merely a contractual
    document, by which one party, namely the vendor,
    agrees or assures or promises to convey the property
    described in the schedule of such agreement to the
    other party, namely the purchaser, upon the latter
    performing his part of the obligation under the
    agreement fully and in time. Section 54 of the
    Transfer of Property Act, 1882 explicitly lays down
    that a contract for sale will not confer any right or
    interest. Section 53-A of the Transfer of Property Act,
    1882 offers protection only to a proposed transferee
    who has part performed his part of the promise and
    has been put into possession, against the actions of
    transferor, acting against the interest of the
    transferee. For the proposed transferee to seek any
    protection against the transferor, he must have either

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    performed his part of obligation in full or in part. The
    applicability of Section 53-A of the Transfer of
    Property Act, 1882 is subject to certain conditions viz.,

    (a) the agreement must be in writing with the owner
    of the property or in other words, the transferor must
    be either the owner or his authorised representative,

    (b) the transferee must have been put into possession
    or must have acted in furtherance of the agreement
    and made some developments, (c) the protection
    under Section 53-A is not an exemption to Section 52
    of the Transfer of Property Act, 1882 or in other
    words, a transferee, put into possession with the
    knowledge of a pending lis, is not entitled to any
    protection, (d) the transferee must be in possession
    when the lis is initiated against his transferor and
    must be willing to perform the remaining part of his
    obligation, (e) the transferee must be entitled to seek
    specific performance or in other words, must not be
    barred by any of the provisions of the Specific Relief
    Act, 1963
    from seeking such performance. The
    protection under Section 53-A is not available against
    a third party who may have an adversarial claim
    against the vendor. Therefore, unless and until the
    sale deed is executed, the purchaser is not vested
    with any right, title or interest in the property except
    to the limited extent of seeking specific performance
    from his vendor. An agreement for sale does not
    confer any right to the purchaser to file a suit against
    a third party who is either the owner or in possession,
    or who claims to be the owner and to be in

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    possession. In such cases, the vendor will have to
    approach the court and not the proposed transferee.

    15.2. In the present case, juxtaposing the above legal
    principles to the facts of the case, we find that the
    respondents’ claim suffers from multiple fatal defects
    that go to the root of the case, which are as follows:

    15.2.1. First, there is no privity between the
    respondents and the appellant. The agreement to sell,
    is not between the parties to the suit. According to
    Section 7 of the Transfer of Property Act, 1882, only
    the owner, or any person authorised by him, can
    transfer the property. We have already held that an
    agreement to sell does not confer any right on the
    proposed purchaser under the agreement. Therefore,
    as a natural corollary, any right, until the sale deed is
    executed, will vest only with the owner, or in other
    words, the vendor to take necessary action to protect
    his interest in the property. According to the
    respondents, the property belongs to the vendors and
    according to the appellant, the property vests in them.

    Since the respondents are not divested any right by
    virtue of the agreement, they cannot sustain the suit
    as they would not have any locus. Consequently, they
    also cannot seek any declaration in respect of the title
    of the vendors. But when the title is under a cloud, it
    is necessary that a declaration be sought as laid down
    by
    this Court in the judgment in Anathula Sudhakar v.
    P. Buchi Reddy (Dead) by LRs and others
    . Therefore,
    the suit at the instance of the respondents/plaintiffs is

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    not maintainable and only the vendors could have
    approached the court for a relief of declaration. In the
    present case, strangely, the vendors are not arrayed
    as parties to even support any semblance of right
    sought by the respondents/plaintiffs, which we found
    not to be in existence. Further, the
    respondents/plaintiffs claim to have paid the entire
    consideration of Rs.75,00,000/- in cash, despite the
    introduction of Section 269ST to the Income Tax Act
    in 2017 and the corresponding amendment to Section
    271 DA. As held by us, the agreement can only create
    rights against the proposed vendors and not against
    third parties like the appellant herein. As the
    agreement to sell does not create any transferable
    interest or title in the property in favour of the
    respondents/ plaintiffs, as per Section 54 of the
    Transfer of Property Act, 1882, we hold that the
    attempt of the plaintiffs to disclose the cause of action
    through clever drafting, based solely on an agreement
    to sell, must fail, as such disclosure cannot be
    restricted to mere statement of facts but must
    disclose a legal right to sue.

    15.2.2. Secondly, and perhaps more fundamentally,
    as we have seen and held above, the respondents
    have no legal right that can be enforced against the
    appellant as their claim is impliedly barred by virtue of
    Section 54 of the Transfer of Property Act, 1882. Their
    remedy, if any, lies against their proposed vendors.
    The plaint averments remain silent regarding the

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    execution of a registered sale deed in favour of the
    respondents, which alone can confer a valid right on
    them to file a suit against the appellant as held by us
    earlier. Another, remedy available to them is to
    institute a suit against the vendors for specific
    performance. This principle was clearly established
    in K. Basavarajappa (supra), wherein this Court held
    that an agreement holder lacks locus standi to
    maintain actions against third parties. The relevant
    paragraph of the said judgment is extracted below:

    “8. … By mere agreement to sell the appellant
    got no interest in the property put to auction to
    enable him to apply for setting aside such
    auction under Rule 60 and especially when his
    transaction was hit by Rule 16(1) read with
    Rules 51 and 48. Consequently he could not be
    said to be having any legal interest to entitle
    him to move such an application. Consequently
    no fault could be found with the decision of the
    Division Bench of the High Court rejecting the
    entitlement of the appellant to move such an
    application.”

    ………

    15.2.4. Further, the respondents are not in possession
    of the property. Whereas, the appellant’s possession
    since 1905 is admitted in the plaint itself. In such
    circumstances, where the plaintiffs are not in
    possession and the defendant is in settled possession
    for over a century, a suit for bare injunction by a
    proposed transferee is clearly not maintainable.
    Section 41 (j) of the Specific Relief Act, 1963 prohibits
    grant of injunction when the plaintiff has no personal

    – 46 –

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    interest in the matter. In the present case, the
    respondents, being mere agreement holders,
    have no personal interest in the suit schedule
    property that can be enforced against third
    parties. The “personal interest” is to be
    understood in the context of a legally
    enforceable right, as when there is a bar in law,
    the mere existence of an interest in the outcome
    cannot give a right to sue. As held by us above, no
    declaratory relief has been sought as contemplated
    under Section 34 of the Specific Relief Act, 1963. This
    principle was clearly established in Jharkhand State
    Housing Board
    (supra), in which, this Court
    emphasized that where title is in dispute, a mere suit
    for injunction is not maintainable. The relevant portion
    of the said judgment is reproduced hereunder:-

    “11. It is well settled by catena of judgments of
    this Court that in each and every case where
    the defendant disputes the title of the plaintiff it
    is not necessary that in all those cases plaintiff
    has to seek the relief of declaration. A suit for
    mere injunction does not lie only when the
    defendant raises a genuine dispute with regard
    to title and when he raises a cloud over the title
    of the plaintiff, then necessarily in those
    circumstances, plaintiff cannot maintain a suit
    for bare injunction.”

    (emphasis supplied)

    53. In fact, on very issue of maintainability of suit for

    permanent injunction on basis of an unregistered agreement of

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    sale of Hon’ble Supreme Court in case of Balram Singh v.

    Kelo Devi, reported in (2024) 12 SCC 723, held:

    “6. At the outset, it is required to be noted that the
    original plaintiff instituted a suit praying for a decree
    of permanent injunction only, which was claimed on
    the basis of the agreement to sell dated 23-3-1996.
    However, it is required to be noted that the
    agreement to sell dated 23-3-1996 was an
    unregistered document/agreement to sell on ten
    rupees stamp paper. Therefore, as such, such an
    unregistered document/agreement to sell shall not be
    admissible in evidence.

    7. Having been 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 simpliciter
    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.

    8. 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
    counterclaim for getting back the possession which

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    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.”

    (emphasis supplied)

    54. Consequentially, it has to be held, suit by plaintiff

    herein as holder of an agreement of sale seeking declaratory

    relief which were subject matter of issues no.2 to 4, as also suit

    for bare injunction based on mere agreement of sale, against

    defendants who according to plaintiff were third parties seeking

    to interfere with his possession, but according to defendants,

    they were purchasers of suit property from original owner,

    would be in either case in view of ratio in B. Gunashekar and

    Balram’s cases (supra), not maintainable.

    55. In view of above, substantial question of law framed is

    answered in negative. Consequently, following:

    – 49 –

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                                                     RSA No. 863 of 2009
    
    
     HC-KAR
    
    
    
    
                                         ORDER
    
                 i)     Appeal is allowed;
    
                 ii)    Judgment and decree dated 25.04.2009
    

    passed by I Addl. Civil Judge (Sr.Dn.),
    Kolar, in RA no.170/2008 is set-aside;

    iii) Judgment and decree dated 19.06.2008
    passed by Civil Judge (Jr.Dn.),
    Srinivaspur, in OS no.109/2005 is
    restored.

    Sd/-

    (RAVI V HOSMANI)
    JUDGE

    GRD
    List No.: 19 Sl No.: 1

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