Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 1518 (RAJ)

Shankar Lal Lrs And Anr v. Niwas Lrs

2019-05-15

PUSHPENDRA SINGH BHATI

body2019
JUDGMENT Pushpendra Singh Bhati, J. - The N.J.D.G. & D.C.M.S. Monitoring Team has found this case in the State of Rajasthan, to be among the cases, about more than 56 years old, upon which the Hon'ble Chief Justice of India has directed to seek requisite information through the concerned court, and after perusing the file and status report of this writ petition, it was noticed that on 11.01.2019, an interim order of stay was extended till final disposal of the writ petition, and the said interim order was continuing. It was also noted that as the original civil case No.27/2017 (5A/2003 old No.) (9/63 old No.) titled as "Sri Niwas Vs. Shankar Lal" is an old matter pending since 1963, and since the matter is one of the oldest, therefore, on the directions of the Hon'ble Chief Justice, the matter was placed before this Court on 15.04.2019. 2. Inspite of repeated words of caution being sounded in the past by this Hon'ble Court, while passing the earlier judgment dated 17.08.1993 in S.B. Civil Revision Petition No.432/1992 preferred against the order dated 22.11.1982 passed by learned Civil Judge, Nagaur in Civil Original Case No.9/63, the adjudication still continues. 3. This Court also observes that it was brought to the knowledge of this Court that there was a direction of the Hon'ble Supreme Court to expeditiously adjudicate the present writ petition, as it pertains to a suit, which was instituted by the plaintiffs/respondents way back in the year 1963, and is pending in the Court of learned Civil Judge, Nagaur, since then. 4. Learned counsel for the parties submitted that the matter required assistance of the learned Government Counsel, and therefore, on 15.04.2019, name of the newly empanelled Government Counsel, Shri K.K. Bissa was directed to be shown in the cause list, and on the request of learned counsel for the parties, the matter was ordered to be listed before this Court on 22.04.2019. 5. On 22.04.2019, the matter did not reach and was hence adjourned. 5. On 22.04.2019, the matter did not reach and was hence adjourned. But when brought to the knowledge of the Court and the learned counsel for the parties, a permission was sought and given for the matter to be listed on 13.05.2019, and thereafter, the learned counsel for the parties jointly prayed for final disposal of the writ petition, and accordingly, the matter was finally heard on 13.05.2019, and after conclusion of the hearing the order was reserved on that date. 6. This writ petition under Articles 226 and 227 of the Constitution of India has been preferred claiming the following reliefs: "(i) the impugned order dated 30.01.2010 (Annexure-13) may kindly be quashed and set aside & the application filed by the petitioners on 20.12.2007 (Annexure-11) may kindly be ordered to be allowed; (ii) the impugned order dated 07.09.2006 (Annexure-5) and the letters dated 08.10.2007 (Annexure-9) and 29.10.2007 (Annexure-10) may kindly be quashed and set aside. (iii) the respondents No.7 & 8 may be directed to determine the valuation of the document in question at the rate which was prevalent at the time of its execution as directed by the learned Civil Judge (J.D.), Nagaur vide order dated 22.01.2007 (Annexure-8).30.01.2010 Any other order favourable to the petitioners may also be passed." 7. Brief facts of this case, as noticed by this Court, are that the plaintiffs/respondents filed a suit against the petitioners/defendants and against performa respondents/defendants for possession of the house in question. The defendants/petitioners filed a written statement, followed by rejoinder on behalf of the plaintiffs/respondents. On the basis of pleadings of the parties, the issues were framed, and thereafter, the evidence commenced and closed. 8. While recording of the evidence of the defendants/petitioners, a partition deed was produced by them, which was claimed to have been executed between the family members of the plaintiffs/respondents, upon which the objection was raised by the plaintiffs/respondents against production of the said document on the ground that the instrument, which was the partition deed, was unregistered and unstamped, and hence, it could not be allowed to be produced in evidence. 9. 9. The controversy came before this Hon'ble Court, and while adjudicating S.B. Civil Revision Petition No.386/1964, this Court, after observing that there is no dispute about nature of the document being a partition deed, decided the said revision petition vide its judgment dated 08.08.1966 with the following direction: "the unregistered document can however be used to prove the factum of partition as mere severance of joint status does not affect the immovable property as was held by their Lordships of the Supreme Court in Nani Bai Vs. Gita Bai. The deed cannot be looked into, to find out what properties were partitioned. The deed is however unstamped and it can be used for the collateral purpose to prove the factum of partition only after the requisite duty and penalty as determined by the trial court have been paid" 10. In view of the aforequoted direction of this Hon'ble Court, the learned Civil Judge, Nagaur vide order dated 04.12.1971 fixed the value of the property in question for the purpose of levying duty and imposing penalty. The said order was challenged by filing S.B. Civil Revision Petition No.86/1972, which was decided by this Hon'ble Court with the following directions on 18.07.1974: "Learned counsel are in agreement that such a valuation has not been disclosed in that document, and that the case fall to be governed by Section 27 of the Stamp Act. There is no provision in the Stamp Act empowering the Revenue to make an independent inquiry of the value of the property conveyed for determining the duty chargeable." 11. Thereafter, the learned Civil Judge, Nagaur referring to the aforementioned decision dated 18.07.1974, again passed an order dated 22.11.1982 holding that as no duty and penalty can be determined by the Court, the document cannot be admitted in evidence for collateral purpose without it being registered or stamped. 12. The aforementioned order dated 22.11.1982 passed by the learned Civil Judge, Nagaur in Civil Original Case No.9/63 was challenged by the plaintiffs/respondents by filing S.B. Civil Revision Petition No.432/1992, which was decided by this Hon'ble Court vide judgment dated 17.08.1993. The operation portion of the said judgment dated 17.08.1993 reads as under:- "It, therefore, hold that the document in question dated 10.11.1951 is inadmissible in evidence as it is, being unregistered and unstamped. The operation portion of the said judgment dated 17.08.1993 reads as under:- "It, therefore, hold that the document in question dated 10.11.1951 is inadmissible in evidence as it is, being unregistered and unstamped. However, if the defendants insist on admitting that document in evidence and rely thereon, the only course open is to pay requisite duty and penalty thereon in accordance with law as discussed above. As a result petition is allowed, the order passed by the Civil Judge on 12.11.1982 is set aside. In the facts and circumstances of the case, parties are left to bear their own costs of this revision." 13. Since the partition deed dated 10.11.1951 was already placed on record of the civil suit as Exhibit-A/3, therefore, the defendants filed an application on 14.05.2003 before the learned trial court praying therein that the document in question may be sent to the Collector (Stamp), Nagaur -cum- Deputy Inspector General Stamp and Registration, Ajmer to determine the stamp duty payable on the said document in accordance with the directions of this Hon'ble Court, as contained in the aforementioned judgment dated 17.08.1993. 14. The aforesaid application was decided by the learned trial court vide order dated 09.11.2005 and the document in question was ordered to be sent to the Collector (Stamp), Nagaur -cum- Deputy Inspector General Stamp and Registration, Ajmer for determination of the stamp duty and penalty. After examination, the authority concerned valued the document at Rs.33,69,535/- vide judgment dated 07.09.2006. Thereafter, the said judgment was forwarded to the learned trial court. The defendants/petitioners however, questioned the judgment of the Collector (Stamp), Nagaur -cum- Deputy Inspector General Stamp and Registration, Ajmer by filing an application before the learned trial court on the ground that the stamp duty was to be determined on the value of the property at the rate when the document was executed i.e. on 10.11.1951. 15. The learned trial court on 22.01.2007 allowed the aforesaid application filed by the defendants/petitioners and ordered that the document in question may be sent back to the Collector (Stamp), Nagaur -cum- Deputy Inspector General Stamp and Registration, Ajmer with a direction to determine its value at the rate, which was prevalent at the time of execution of the said document, and not at the rate when it was produced before the Collector (Stamp), Nagaur -cum- Deputy Inspector General Stamp and Registration, Ajmer for the purpose of stamping. 16. 16. As per the pleaded case of the defendants/petitioners, despite the specific direction of the learned trial court issued on 22.01.2007 for determining the value of the document for the purpose of stamp duty, the Deputy Inspector General, Registration and Collector (Stamp) Circle, Ajmer vide letter dated 08.10.2007 informed the Collector (Stamp), Nagaur that the valuation had already been determined vide judgment dated 07.09.2006, and thus, if the party had any grievance against it, an appeal can be preferred laying a challenge thereto. In view of the letter dated 08.10.2007, the office of the Additional Collector, Nagaur informed the learned trial court vide its letter dated 29.10.2007 that the petitioners would have a right of preferring an appeal, but no fresh adjudication of the stamp duty could be made under the provisions of law. 17. As the pleaded facts would further reveal, the defendants/petitioners upon coming to know about the aforementioned letter dated 08.10.2007, they filed an application on 20.12.2007 before the learned trial court requesting therein that the Deputy Inspector General Registration -cum- Collector (Stamp) Circle, Ajmer may be again directed to comply with the aforementioned order passed by the learned trial court on 22.01.2007, and accordingly, to determine the necessary valuation at the rate, which was prevalent on the date of execution of the document in question. 18. The learned trial court however, vide its order dated 30.01.2010, rejected the aforementioned application dated 22.12.2007 filed by the defendants/petitioners, while agreeing that the stamp duty may be paid, or if the defendants/petitioners wish to lay any challenge, then they would have the remedy of appeal. 19. The petitioners thereafter approached this Hon'ble Court by filing this writ petition and this Hon'ble Court passed the following interim order on 16.07.2010 in the present writ petition:- "The matter comes up on an application preferred on behalf of the petitioners seeking leave to amend the writ petition. For the reasons stated in the application, the application (IA No.5748/10) is allowed. Amended writ petition already filed, is taken on record. Admit. Issue notice, returnable on 28.07.2010. Issue notice of the stay application also. Notices may be given 'dasti' to the learned counsel for the petitioners for service upon the respondents. In the meanwhile, further proceedings in Civil Case No.5A/03 (9/63) pending before the court of Civil Judge (Junior Division), Nagaur, shall remain stayed till the next date." 20. Admit. Issue notice, returnable on 28.07.2010. Issue notice of the stay application also. Notices may be given 'dasti' to the learned counsel for the petitioners for service upon the respondents. In the meanwhile, further proceedings in Civil Case No.5A/03 (9/63) pending before the court of Civil Judge (Junior Division), Nagaur, shall remain stayed till the next date." 20. Learned counsel for the defendants/petitioners submitted that in accordance with the law prevailing, the stamp duty was to be determined according to the law and rates in force at the time of execution of the document in question. In this regard, learned counsel for the defendants/petitioners relied upon the judgment rendered by a Full Bench of this Hon'ble Court in Nanga Vs. Dhannalal & Ors. , (1962) AIR Raj. 68 (V 49 C 12), relevant portion of which reads as under:- "6. I may observe at the very outset that the view taken by the learnted Civil Judge is not correct. The proper amount of duty required for an instrument is to be determined according to the law in force at thte time of the execution, of the instrument and not when it is tendered in evidence. The learned Civil Judge was in error in holding that the law in force at the time when the admissibility of the document is called in question will govern the case. Section 35 of the Stamp Act provides that : "No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, or authenticated by any such person or by any public officer, unless such instrument is duly stamped." The words "chargeable and duly stamped" used in this Section have been defined in the Act in Sections 2(6) and 2(11). 'Chargeable' means, as applied to an instrument executed or first executed after the commencement of this Act. 'Duly stamped' as applied to an instrument, means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time being in force in India. 7. 'Duly stamped' as applied to an instrument, means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time being in force in India. 7. It would thus be clear from the aforesaid definitions that the question whether an instrument is duly stamped must be determined with reference to the law in force at the time when the instrument is executed because it is under such law that it is chargeable with duty." 21. Learned counsel for the defendants/petitioners has placed reliance on the precedent law laid down by the Hon'ble Supreme Court in State of U.P. & Ors. Vs. Ambrish Tandon & Anr. , (2012) 2 RajLW 1443(SC), relevant portion of which reads as under: "8. We have already held that it is the grievance of the respondents that the orders were passed by the Additional Collector on a public holiday. Regarding the merits though the Collector, Lucknow made a surprise site inspection, there is no record to show that all the details such as measurement, extent, boundaries were noted in the presence of the respondents who purchased the property. It is also explained that the plot in question is not a corner plot as stated in the impugned order as boundaries of the plot mentioned in the freehold deed executed by Nazool Officer and in the sale deed dated 16.04.2003 only on one side there is a road. It is also demonstrated that at the time of execution of the sale deed, the house in question was used for residential purpose and it is asserted that the stamp duty was paid based on the position and user of the building on the date of the purchase. The impugned order of the High Court shows that it was not seriously disputed about the nature and user of the building, namely, residential purpose on the date of the purchase. Merely because the property is being used for commercial purpose at the later point of time may not be a relevant criterion for assessing the value for the purpose of stamp duty. The nature of user is relatable to the date of purchase and it is relevant for the purpose of calculation of stamp duty. Merely because the property is being used for commercial purpose at the later point of time may not be a relevant criterion for assessing the value for the purpose of stamp duty. The nature of user is relatable to the date of purchase and it is relevant for the purpose of calculation of stamp duty. Though the matter could have been considered by the Appellate Authority in view of our reasoning that there was no serious objection and in fact the said alternative remedy was not agitated seriously and in view of the factual details based on which the High Court has quashed the order dated 27.09.2004 passed by the Additional District Collector, we are not inclined to interfere at this juncture." 22. Learned counsel for the defendants/petitioners has further placed reliance on the judgment rendered by the Hon'ble Madras High Court in S.P. Padmavathi Vs. State of Tamil Nadu & Ors. , (1997) AIR Madras 296, relevant portion of which reads as under:- "23. Therefore, we are of the view that in the case of instrument of conveyance executed pursuant to the decree for specific performance passed by the Civil Court, in which there is no allegation of under-valuation or lack of bona fides, the mere fact that there is a time-gap between the agreement of sale and the execution of the document, is not sufficient to the Registering Officer to invoke his power under Section 47A of the Act, unless there are reasons to believe that there is an attempt on the part of the parties to the instrument to deliberately under-value the subject of transfer with a view to evade payment of proper stamp duty." 23. Learned counsel for the defendants/petitioners also relied upon the judgment rendered by this Hon'ble Court at Jaipur Bench in Indra Devi & Anr. Vs. State of Rajasthan Thro Inspector General Registrations & Stamps, Ajmer & Ors. , (2017) 2 DNJ 869 (Raj), relevant portion of which reads as under: "12. Now coming to the merit of the case, a bare look at the impugned order dated 09.08.2004, passed by the Collector (Stamps) reveals that he had simply determined the market value of the subject property, keeping in view the probable future use by saying that "the possibility of the said plot being used in future as hotel cannot be denied". 13. 13. In considered opinion of this Court, Collector Stamps has proceeded arbitrarily and committed grave error of law in determining the market value of the property, based on future and probable use. The market value of the property as per the provisions of Rajasthan Stamps Act, 1998 is required to be adjudicated and determined as existing on the date of execution of sale deed. The view of this Court is supported by the judgment of Hon'ble Supreme Court rendered in case of State of Uttar Pradesh and Others Vs Ambrish Tandon and Another , (2012) 5 SCC 566 , whereby Hon'ble Supreme Court has in unequivocal terms, ruled that market value of the instrument cannot be determined on the basis of future use. "The impugned order of the High Court shows that it was not seriously disputed about the nature and user of the building, namely, residential purpose on the date of the purchase. Merely because the property is being used for commercial purpose at the later point of time may not be a relevant criterion for assessing the value for the purpose of stamp duty. The nature of user is relatable to the date of purchase and it is relevant for the purpose of calculation of stamp duty. Though the matter could have been considered by the Appellate Authority in view of our reasoning that there was no serious objection and in fact the said alternative remedy was not agitated seriously and in view of the factual details based on which the High Court has quashed the order dated 27.09.2004 passed by the Additional District Collector, we are not inclined to interfere at this juncture." 14. In light of the above, the impugned order dated 09.08.2004 is ex-facie illegal and contrary to law. The same is therefore quashed and set aside. 24. On the other hand, learned counsel for the plaintiffs/respondents submitted that the conduct of the defendants/petitioners is to be seriously condemned by this Court, as even when they had an order passed by this Hon'ble Court on 17.08.1993 for getting the partition deed in question stamped, then also the defendants/petitioners have totally failed to put the same for the necessary stamping, until the year 2003. 25. 25. Learned counsel for the plaintiffs/respondents further submitted that the lapse of ten years in getting the order dated 17.08.1993 passed by this Hon'ble Court complied with by the petitioners clearly shows that their simple endeavour was to delay the adjudication, as the petitioners/defendants were enjoying the possession of the property in question and wanted to delay the final verdict. 26. Learned counsel for the plaintiffs/respondents vehemently submitted that with the efflux of time, all the rights of the defendants/petitioners in respect of the order of Collector (Stamp), Nagaur -cum- Deputy Inspector General Stamp and Registration, Ajmer to determine stamp duty payable as per the directions of this Hon'ble Court, have been defeated by their own conduct of not complying with the judgment dated 17.08.1993, uptill 14.05.2003. 27. Learned counsel for the plaintiffs/respondents also submitted that the delay of ten years in bringing such application for stamping the document in question itself was an act which required no indulgence in favour of the defendants/petitioners at any stage by any authority, as all their rights should have been declared to have been lapsed due to his inaction to call for the document to be sent to Collector (Stamp), Nagaur -cum- Deputy Inspector General Stamp and Registration, Ajmer for determining the stamp duty payable on the said document. 28. Learned counsel for the plaintiffs/respondents relied upon the precedent law laid down by the Hon'ble Supreme Court in M/s. Ansal Housing and Construction Ltd. Vs. State of Uttar Pradesh & Ors. , (2016) AIR SC 2725; State of Rajasthan & Ors. Vs. Khandaka Jain Jewellers, 2007 DNJ 1089 (SC); Addl. Distt. Sub-Registrar Siliguri Vs. Pawan Kumar Sharma & Ors., 2013 DNJ 534 (SC); State of Uttar Pradesh & Ors. Vs. Ambrish Tandon & Anr., 2012 DNJ 128 (SC); and by this Hon'ble Court at Jaipur Bench in Shri Bhratahri Lok Seva Trust Vs. Board of Revenue & Ors., 2009 2 DNJ 934 (Raj) and Nirmala Devi (Smt.) & Ors. Vs. Presiding Officer & Anr. , (2009) 2 DNJ 869 (Raj). 29. After hearing learned counsel for the parties as well as perusing the record of the case, alongwith the precedent law cited at the Bar, this Court is of the opinion that it is a classical case of the defendants/petitioners using the law as a tool to defeat the ends of justice. 30. , (2009) 2 DNJ 869 (Raj). 29. After hearing learned counsel for the parties as well as perusing the record of the case, alongwith the precedent law cited at the Bar, this Court is of the opinion that it is a classical case of the defendants/petitioners using the law as a tool to defeat the ends of justice. 30. This Court is quite concerned about the civil proceedings pending since 1963. The precedent law is quite clear that the defendants/petitioners were required to pay the stamp duty in respect of the document in question before the Collector (Stamp), Nagaur -cum- Deputy Inspector General Stamp and Registration, Ajmer, which had to be calculated on the basis of the rates prevalent at the time of execution of the document in question. 31. It is a sad story that inspite of this Hon'ble Court recording in the year 1993 that the case is having a chequered history due to its long pendency since 1963, the matter is still alive without completion of the adjudication process. However, this Court is tied down to the precedent laws and the judgment already rendered by this Hon'ble Court. This Court finds that the defendants/petitioners have abused the process of law by not acting upon the judgment dated 17.08.1993 until 14.05.2003. 32. This Court also finds that had the defendants/petitioners chosen to act in time, then of course, as per the precedent law, they would have a right to get the value of the document in question determined from the Collector Stamps, Nagaur payable on the document of partition deed on the date when the same was executed i.e. 10.11.1951, and not on the date on which they have presented it for the necessary stamping. 33. In the extraordinary writ jurisdiction of this Court under Article 226 of the Constitution and Article 227 of the Constitution of India, which have been invoked by the petitioners, this Court deems it appropriate to make certain observations peculiar to the facts of this case, where the suit itself is of the yaer 1963 and the document in question is dated 10.11.1951 and it pertains to one of the oldest civil suit pending in the State of Rajasthan. 34. 34. This Court considers that the petitioners' endeavour to get the document dated 10.11.1951 stamped, in pursuance of the aforementioned judgment dated 17.08.1993 passed by this Hon'ble Court, which was originally against them as the learned Civil Judge, Nagaur on 22.11.1982 had declined the admission of the document in question, and the defendants/petitioners had contested it tooth and nail before this Court from 22.11.1982 to the year 1992. 35. This Court sees that the order dated 22.11.1982 passed by the learned trial court was set aside by this Hon'ble Court by the earlier judgment dated 17.08.1993. 36. However, in the peculiar facts of the case, and that, the precedent law clearly stands in favour of the petitioners, the petitioners are entitled to get the document in question stamped with the valuation at the rate prevalent on the date when the document was executed, rather than on the date when the application was filed by the defendants/petitioners before the learned trial court i.e. on 13.10.2006. 37. Thus, inspite of the frustrating delays caused by the defendants/petitioners, this Court, to avoid any further delay and for ensuring continuance of the proceedings pending before the learned trial court, s the present writ petition, while quashing the impugned orders dated 30.01.2010 and 07.09.2006 as well as the letters dated 08.10.2007 and 29.10.2007. Accordingly, the respondent No.7-Deputy Inspector General, Registration -cum-Collector (Stamp), Circle, Ajmer is directed to determine the stamp duty in respect of the partition deed dated 10.11.1951 in question, as per the directions given by this Hon'ble Court earlier in the aforementioned judgment dated 17.08.1993, and while taking the valuation from the date of execution of the partition deed i.e. 10.11.1951, the order upon the necessary stamp duty shall be passed by respondent No.7 within a period of 30 days from today. The learned trial court shall thereafter, proceed expeditiously to decide the suit pending before it within a period of two months thereafter. The learned trial shall impose heavy costs upon the parties, who would seek unnecessary adjournments. It is made clear that this Court is not relegating this matter to the appeal, even while knowing that there is a statutory appeal, which lies against the order of Collector (Stamps), as that would further the delay the adjudication process of the civil suit, which is pending for last about 56 years.