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2010 DIGILAW 623 (RAJ)

Sardar Kamaljit Singh v. Suresh Chand

2010-03-18

VINEET KOTHARI

body2010
ORDER Vineet Kothari, J. 1. None present for the Respondent despite service. 2. This writ petition is directed against the order dated 28-7-2009, whereby, the learned trial Court allowed the application of the Defendant-Respondent and held that the agreement in question dated 6-1 -2005 on the basis of which the specific performance was sought by the Plaintiff-Petitioner could not be admitted in evidence since the same was not registered as per Section 17 of the Indian Registration Act, 1908. 3. Learned Counsel for the Petitioner submits that since in the agreement Annex. 1 dated 6-1-2005 there is no stipulation for handing over the possession of the plot in question to the Petitioner-Plaintiff, such agreement is not required to be registered as per Section 17(1)(b) of the Indian Registration Act, whereas, the learned trial Court relying upon the provisions of Sections 17(1)(a) and 17(1)(b) of the Act has held that said document was required to be registered for the purpose of Section 53A of the Transfer of Property Act. He submits that earlier also the learned trial Court decided issue No. 8 against the Plaintiff and asked the Petitioner-Plaintiff to deposit full stamp duty of Rs. 97,900/- including penalty to make such document admissible in evidence, which was duly paid by the Petitioner on 16-4-2009 and later on the Defendant moved this application for the said document to be registered, which has been allowed by the learned trial Court wrongly. 4. Having heard the learned Counsel and after perusal of the record, this Court is of the opinion that the learned trial Court has fallen into error in holding the said document to be registered, even though there is no stipulation in the said agreement indicating that possession of the land in question has been handed over to the Petitioner-Plaintiff. The said Clause (f) of Section 17 was introduced by the Act of 1989, whereas, agreement in question is dated 6-1-2005. However, since the agreement does not indicate handing over the possession of the plot in question to the Petitioner-Plaintiff, Section 53A of the Transfer of Property Act obviously cannot apply to the said situation. 5. Learned Counsel for the Petitioner also submitted that as against the agreement of Rs. 3 lacs for consideration of the land in question, the Petitioner-Plaintiff had paid only Rs. 5. Learned Counsel for the Petitioner also submitted that as against the agreement of Rs. 3 lacs for consideration of the land in question, the Petitioner-Plaintiff had paid only Rs. 21000/- and this also would prima facie show that the possession of the plot of land in question was not handed over to him. Be that as it may, when there being no sitpulation in the agreement for the possession to be handed over to the Petitioner-Plaintiff (vendee) the said document cannot be required to be compulsorily registered and, therefore, the impugned order of the learned trial Court appears to be erroneous. 6. Accordingly, this writ petition is allowed and the impugned order dated 28-7-2009 is set aside. No order as to costs.