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2018 DIGILAW 1153 (RAJ)

Puran Mal Sargara v. Dhagal Singh Rawna Singh

2018-05-03

PUSHPENDRA SINGH BHATI

body2018
ORDER : Pushpendra Singh Bhati, J. This writ petition has been preferred with the following prayers: "It is, therefore, most humbly and respectfully prayed that by an appropriate writ, order or direction, the present petition may kindly be allowed and further the order dated 17.07.2017 is passed by the learned Additional District Judge, Sojat, District Pali in Civil Original Suit No.31/2013 may kindly be quashed and set aside and the application preferred by the petitioner may kindly be allowed. Any other appropriate writ, order or direction which this Hon'ble Court deems just and proper may kindly be passed in favour of the petitioner." 2. The short point involved in the matter is that the document in suit which is agreement to sale which was accepted to be taken on record by the learned Court below but refused by the learned court below while sending the same to be properly stamped. 3. Learned counsel for the petitioner has relied upon the judgment of Islam Teli Muslim v. Chiraguddin Teli Muslim and Ors. (S.B. Civil Writ Petition No.13796/2016), decided on 10.04.2017. The relevant portion of this judgment reads as follows:- "In the aforesaid factual and legal matrix of the case, the order impugned is quashed and set aside to the extent it rejects petitioner's objection in relation admissibility of the document for want of payment of proper stamp duty. The Trial Court shall send the document in question to the Collector, Stamp, Nagour for adjudication of the proper stamp duty on the agreement dated 25.3.1983. On payment of proper stamp duty only, the document in question shall be admitted in evidence. However it is iterated that the agreement in question did not require registration and hence embargo of section 49 of the Registration Act will not be applicable while producing and/or exhibiting the same in evidence." 4. Learned counsel for the petitioner has relied upon the judgment of Omprakash v. Laxminarayan and Ors. (S.B. Civil Appeal No.9032/2013), decided on 07.10.2013. The relevant portion of this judgment reads as follows :- "The view which we have taken finds support from a decision of this Court in the case of Avinash Kumar Chauhan v. Vijay Krishna Mishra, (2009) 2 SCC 532 , in which it has been held as follows: "21. It is not in dispute that the possession of the property had been delivered in favour of the appellant. It is not in dispute that the possession of the property had been delivered in favour of the appellant. He has, thus, been exercising some right in or over the land in question. We are not concerned with the enforcement of the said agreement. Although the same was not registered, but registration of the document has nothing to do with the validity thereof as provided for under the provisions of the Registration Act, 1908. 22. We have noticed here to before that Section 33 of the Act casts a statutory obligation on all the authorities to impound a document. The court being an authority to receive a document in evidence is bound to give effect thereto. The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The court, therefore, was empowered to pass an order in terms of Section 35 of the Act." To put the record straight, the correctness of the impugned judgment (Laxminarayan and Ors. v. Omprakash and Ors., 2008 (2) MPLJ 416 ) came up for consideration before a Division Bench of the High Court itself in Writ Petition No. 6464 of 2008 (Man Singh (deceased) through Legal Representatives Smt. Sumranbai and Ors. v. Rameshwar) and same has been overruled by judgment dated January 22, 2010. The High Court observed as follows: "8. A document would be admissible on basis of the recitals made in the document and not on basis of the pleadings raised by the parties. In the matter of Laxminarayan (supra), the learned Single Judge with due respect to his authority we don't think that he did look into the legal position but it appears that he was simply swayed away by the argument that as the defendant was denying the delivery of possession, the endorsement/recital in the document lost all its effect and efficacy. 9. It would be trite to say that if in a document certain recitals are made then the Court would decide the admissibility of the document on the strength of such recitals and not otherwise. In a given case, if there is an absolute unregistered sale deed and the parties say that the same is not required to be registered then we don't think that the Court would be entitled to admit the document because simply the parties say so. In a given case, if there is an absolute unregistered sale deed and the parties say that the same is not required to be registered then we don't think that the Court would be entitled to admit the document because simply the parties say so. The jurisdiction of the Court flows from sections 33, 35 and 38 of the Indian Stamp Act and the Court has to decide the question of admissibility. With all humility at our command we over-rule the judgment in the matter of Laxminarayan (supra)." We respectfully agree with the conclusion of the High Court in this regard." 5. Learned counsel for the petitioner has argued that it was imperative upon the Court below to have impounded the document for payment of proper stamp duty. 6. Learned counsel for the respondents refutes the submission. 7. In the aforesaid factual and legal matrix, the order impugned is quashed and set aside to the extent its rejects the petitioner's objection in relation to admissibility in the document for want of payment of proper stamp duty. The trial Court shall send the document in question to the collector stamp concerned for adjudication of proper stamp duty on the sale agreement and on the payment of proper stamp duty only, the documents in question shall be admitted in evidence. The respondent shall be at liberty to refute the documents as to its admissibility. 8. The writ petition is disposed of accordingly. On the joint prayer of the counsel for the parties, the learned Court below is directed to conduct the trial expeditiously.