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2013 DIGILAW 1649 (RAJ)

Vasudev Darji v. Sohan Lal Sharma

2013-09-18

VIJAY BISHNOI

body2013
JUDGMENT 1. - This writ petition has been preferred by the petitioner against the order dated 03.08.2013 passed by learned Additional District Judge, Churu (hereinafter referred to as 'the learned trial court) in Civil Original Suit No. 87/2011 (66/2011), whereby the learned trial court has decided the issue No. 7 and has held that the document, agreement to sale produced by the plaintiff is admissible in evidence in suit for specific performance. The petitioner has also challenged the order dated 11.07.2013 passed by the learned trial court, whereby the learned trial court has rejected the objections raised by the petitioner for deciding the issue Nos. 4 and 7 as preliminary issues on the ground that earlier, on an application preferred by the petitioner under Order 7, Rule 11 of the Code of Civil Procedure the learned trial court has held that the issue No. 4 regarding limitation is a mixed question of fact and law and therefore, cannot be decided as preliminary issue. 2. The learned counsel for the petitioner has argued that though the document agreement to sale produced by the plaintiff was not registered, the learned trial court has grossly erred in holding that the same is admissible in evidence. The learned counsel for the petitioner has also argued that the issue No. 4 regarding limitation is the legal issue and therefore, it should have been decided as preliminary issue, but the learned trial court has illegally rejected the same vide order dated 11.07.2013. 3. Heard the learned counsel for the petitioner and perused the impugned orders. 4. It is not in dispute that the plaintiff respondents have file suit for specific performance of contract against the petitioner on the basis of the agreement to sale dated 25.06.2004. As per proviso of Section 49, of the Registration Act, 1908, (hereinafter referred to as 'Act of 1908') an unregistered document affecting immovable property and required by Act of 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. 5. In view of proviso to Section 49 of Act of 1908 the challenge of the petitioner to the impugned order dated 03.08.2013 is without any basis and, therefore, the same is rejected. 6. 5. In view of proviso to Section 49 of Act of 1908 the challenge of the petitioner to the impugned order dated 03.08.2013 is without any basis and, therefore, the same is rejected. 6. So far order of the learned trial court dated 11.07.2013 is concerned, it is noticed that earlier the same objection regarding the limitation has been rejected by the learned trial court, while deciding an application under Order 7, Rule 11 of Civil Procedure Code preferred by the petitioner, while observing that this question is mixed question of fact and law cannot be decided as preliminary issue and therefore, this Court does not find any illegality in the order dated 11.07.2013, and the same does not require any interference. 7. Accordingly, this writ petition, being devoid of merits, is hereby dismissed.Petition Dismissed. *******