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2016 DIGILAW 3830 (ALL)

SUNIL GIHAR v. STATE OF U. P.

2016-11-29

PRAMOD KUMAR SRIVASTAVA

body2016
JUDGMENT Hon’ble Pramod Kumar Srivastava, J.—The registered sale-deed dated 13.4.2005 was executed in favour of petitioner on which stamp fees was paid in accordance with circle rate. Thereafter the Sub-Registrar-III had submitted report on basis on which show-cause notice was issued to petitioner; and after hearing him, the impugned order dated 12.12.2006 was passed by respondent No. -4 ADM. In this order ADM Administration, Saharanpur had mentioned that although the report of Nayab Tehsildar dated 24.8.2006 shows that property sold through sale-deed in question was situated in Indira Colony, Khan Alampura, but this report is not proper. The respondent No. -4 had also mentioned in his order that petitioner (O.P. Of original case) had not preferred any evidence to shows that disputed property is not situated within area between Rakesh Cinema and Dhamola river bridge, therefore its assessment should be made for the property situated near Dhamola river bridge. On basis of these findings, impugned order dated 12.12.2006 was passed, by which additional stamp-fees and penalty was imposed on petitioner, and it was directed that those amounts should be recovered alongwith interests. 2. Against said order dated 12.12.2006 of ADM (Administration Saharanpur, the Appeal No. 05/06-07 under Section 56(1-A) of Indian Stamp Act was preferred which was heard and decided by the judgment dated 7.8.2007 of Additional Commissioner (Administration), Saharanpur Division. In this judgment the respondent No. -2 had considered this report of Sub-Registrar that disputed property is situated at link road, but held that stamp fees was rightly levied on the rate of property situated near Bridge of Dhamola River. With these findings appeal was dismissed. 3. Against the judgment abovementioned impugned judgments dated 12.12.2006 and 7.8.2007, present writ petition has been preferred. 4. From perusal of records, it is found that on behalf of respondents the Nayab Tehsildar had inspected the spot and had submitted specific report dated 10.8.2006 that property in question is situated in Indra Colony, Khan Alampura. This report was discarded by ADM Administration without assigning any reason, which appears inappropriate. Apart from it, the respondent ADM had mentioned in his order that petitioner had not given any evidence and had failed to prove that his property is not situated between the area of Rakesh Cinema and Dhamola river bridge, therefore its market value should be assessed for the properties situated near Dhamola river bridge. This finding is not only erroneous but is perverse. This finding is not only erroneous but is perverse. When petitioner is specifically mentioning the location of his property, as mentioned in sale-deed in question, and the report of Nayab Tehsildar and Tehsildar after inspection is there that said property is situated in Indra Colony Khan Alampura, then there was no justification for the respondent ADM to discard such finding without assigning any reason. Apart from it, burden of proving the fact that disputed property is situated in any particular area, was on person who desired it to be believed. 5. Section 101 and 103 of Indian Evidence Act read as under: “101. Burden of proof.—Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” “103. Burden of proof as to particular fact.—The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 6. In present case it was respondents who desired to make believe that the disputed property is situated in a particular area. The petitioner had denied the existence of that property in said area. Therefore the burden of proof is of proving said fact was on the respondents, who had not given any reason in support of their finding. This observation of respondent, through their impugned orders was totally perverse and unacceptable that the petitioner had failed to prove that said property is not in that particular area which is mentioned by respondents in their notice. 7. There has been evidences that disputed property is situated in Indira Colony, Khan Alampura, which is proved from the spot inspection report of Nayab Tehsildar dated 14.8.2006. The ADM Administration had held that petitioner had not given any evidence to prove that said property is not situated besides area of Dhamola river bridge. Petitioner was not expected to prove the existence of a thing which he has not pleaded and according to him it is not in existence. The ADM Administration had held that petitioner had not given any evidence to prove that said property is not situated besides area of Dhamola river bridge. Petitioner was not expected to prove the existence of a thing which he has not pleaded and according to him it is not in existence. If the respondents were willing to hold the location of property near Dhamola river bridge, then they should have held it specifically. In such a case the burden of proof was on respondent to show or prove that said property is near Dhamola river bridge. But without discharging their burden of proof and without any such specific finding, the impugned order of assessment was passed, which is apparently erroneous. 8. Respondent No. 2, Additional Commissioner had confirmed the finding of respondent No. 4 without considering these facts and without specifically holding that disputed property is situated near Dhamola river bridge, and is not situated in Indira Colony Khan Alampura. This finding is without appreciation of evidences and facts and appears to have been given without application of judicial mind. 9. When the recitals in the sale-deed clearly states that the building is situated in Indira Colony, Khan Alampura, the burden of proof that it is in area of Dhamola river bridge is upon the respondents who alleges and seeks to determine its market value according to rate of that area. Generally, market value given in the instrument is to be taken correct unless proved otherwise or circumstances suggest to the contrary. The respondents have miserably failed to discharge the above burden. 10. In view of above, the impugned orders dated 12.12.2006 passed by respondent No. 4 Additional District Magistrate and the order dated 7.8.2007 passed by respondent No. 2 Additional Commissioner are found erroneous and perverse. These orders are hereby set aside. Therefore this writ petition succeeds and is accordingly allowed. 11. The amount, if any, deposited by petitioner after passing of the impugned orders shall be refunded to him immediately, maximum within two months, failing which if may be recovered from respondents with interest at the rate of 6% per annum from the date of deposition of said amount.