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2019 DIGILAW 2944 (RAJ)

Ramdev Dudi v. Kana Ram

2019-12-09

DINESH MEHTA

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JUDGMENT Dinesh Mehta, J. - The present writ petition is directed against the order dated 01.06.2017, passed by Sub Divisional Magistrate, Merta (hereinafter referred to as the 'trial Court'). 2. The facts in a nutshell are that the plaintiff - petitioner filed a suit for declaration; partition; correction of entry in revenue record and permanent injunction. 3. The defendant - Kanaram filed an affidavit in examinationin-chief and placed on record a document - copy of Bahikhata, claimed to be executed 67 years ago, whereby the land in question has been transferred in favour of Simbhu Ram, Likhma Ram and others by taking consideration of Rs.160/-. 4. An objection regarding admissibility of copy of the 'Bahi Khata' was raised by the plaintiff - petitioner inter alia asserting that the document in question involves transfer of immovable property for the value of above Rs.100/- and thus, the same was required to be compulsorily registered. 5. The basic contention raised by the plaintiff has been that since the document in question was neither registered nor appropriately stamped, the same was inadmissible in evidence. 6. Petitioner's such objection was dealt with and decided by the trial Court, vide order dated 01.06.2017 with the following observations : 7. The said order dated 01.06.2017 was challenged by way of filing revision petition before the Board of Revenue. Board of Revenue dismissed the revision petition vide order dated 08.06.2018. 8. Challenging the order dated 01.06.2017, as affirmed by the Board of Revenue vide order dated 08.06.2018, Mr. Vishal Sharma, learned counsel for the petitioner, contended that the learned trial Court has fallen into a grave error of law in deferring the adjudication of admissibility of the document at the time of final hearing. 9. While relying upon judgment of Hon'ble Supreme Court in the case of R.V.E. Venkatachalal Gounder Vs. Arulmigu Viswesaraswami & V. P. Temple & Anr., (2003) 8 SCC 752 , he argued that it is settled proposition of law that admissibility of document is required to be adjudged when exhibit is being marked. 10. Learned counsel for the petitioner further argued that the trial Court has coined a new pharse namely ¼Xkks.k lk{;½ , whereas there are two types of evidence namely primary and secondly known to law. 11. Mr. 10. Learned counsel for the petitioner further argued that the trial Court has coined a new pharse namely ¼Xkks.k lk{;½ , whereas there are two types of evidence namely primary and secondly known to law. 11. Mr. Jain, learned counsel appearing for the respondents, on the other hand, submitted that true it is, that order of trial Court was not happily worded. He submitted that the trial Court has used the wrong expression in the name of ¼Xkks.k lk{;½ , whereas it ought to have been referred as 'collateral evidence'. 12. In light of proviso under Section 49 of the Act a document even if not registered, may be used for collateral purpose and the respondents - defendants have relied upon 'Khata Bahi' (though not registered) only with a view to assert the possession. 13. Learned counsel further submitted that irrespective of the fact that the document in question was neither registered nor appropriately stamped, the same can be used for collateral purpose. 14. In support of his arguments aforesaid, Mr. Jain relied upon the judgments of Hon'ble Supreme Court in the case of Yashchandra (D) By Lrs. Vs. State of Madhya Pradesh & Ors., (2017) AIR SC 4572 and Bondar Singh & Ors. Vs. Nihal Singh & Ors, (2003) 4 SCC 161 . 15. Heard learned counsel for the parties and perused the material available on record. 16. A perusal of the operative portion of the impugned order dated 01.06.2017 leaves no room for ambiguity that the trial Court has not passed an order in accordance with law. A careful reading of the order impugned reveals that the trial Court has, as a matter of fact, decided admissibility of document and held it to be admissible for collateral purposes, which is in conformity with law so far as the requirement of registration is concerned. However, while doing so, the trial Court has clearly lost sight of the fact that the document in question was insufficiently stamped. 17. In view of the aforesaid, the arguments advanced by the Mr. Sharma that the trial Court could not have deferred the adjudication of the admissibility of document for future, is not factually correct. 18. However, while doing so, the trial Court has clearly lost sight of the fact that the document in question was insufficiently stamped. 17. In view of the aforesaid, the arguments advanced by the Mr. Sharma that the trial Court could not have deferred the adjudication of the admissibility of document for future, is not factually correct. 18. A perusal of the judgments cited by learned counsel for the respondents show that they relate to the document(s), which were unregistered and the Hon'ble Supreme Court while considering the proviso to Section 49 of the Registration of Act, held such document to be admissible for collateral purposes. 19. There is no provision in the Stamp Act, which permits the document to be led in evidence, without payment of stamp duty for whatever purposes. 20. In considered opinion of this Court, sans payment of requisite stamp duty, a document cannot be used in evidence, even for collateral purpose. 21. The present writ petition is thus, disposed of with a direction to the trial Court to impound the document in question (copy of the 'Bahi Khata') and send the same to the Collector (Stamps), for determination of appropriate stamp duty. The needful be done within a period of 15 days from placing of certified copy of the order instant. 22. The concerned Collector (Stamps) shall determine the appropriate stamp duty payable on the said document and on determination of the stamp duty the concerned witness Kanaram shall pay the deficit stamp duty. 23. Only upon payment of the appropriate stamp duty, the document shall be admissible in evidence, that too for collateral purposes. 24. Needless to observe that merely because that the document in question has been held to be admissible in evidence, it will not preclude the petitioner to raise objection regarding its genuineness and effect on the suit in question. 25. Stay application also stands disposed of.