Rajasthan High Court - Jaipur
Gopal vs Badri @ Badri Narain Son Of Shri Pratap @ ... on 30 May, 2020
Author: Prakash Gupta
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 6774/2019
1. Gopal, Son Of Late Nathu Mali
2. Narain, Son Of Late Nathu Mali
3. Bhagwan Sahai, Son Of Late Nathu Mali
4. Tulsi Ram, Son Of Late Nathu Mali
5. Nar Singh, Son Of Late Nathu Mali
6. Kanhaiya Son Of Late Nathu Mali, (Expired During
Pendency Of Suit)
6/1. Hem Raj, Aged About 22 Years, Son Of Late Kanhaiya @
Kana Ram
6/2. Krishna Kumar, Aged About 20 Years, Son Of Late
Kanhaiya @ Kana Ram
6/3. Smt. Nangi Devi Wife Of Not Known Daughter Of Late
Kanhaiya @ Kana Ram,
All Resident Of Village Mohanpura, Tehsil Bassi, District
Jaipur
7. Smt. Jamna Devi Wife Of Shri Badri Narain, Daughter Of
Late Nathu Mali, Resident Of Village Booj, Tehsil Jamwa
Ramgarh, District Jaipur
8. Santa Son Of Ladu, (Expired During Pendency Of Suit)
8/1. Bihari Lal Son Of Late Santa, Aged About 50 Years,
(Expired During Pendency Of Suit)
8/1/1 Raju Saini, Aged About 29 Years, Son Of Late Shri Bihari
. Lal
8/1/2 Ganesh Saini, Aged About 21 Years, Son Of Late Shri
Bihari Lal
8/1/3 Smt. Sita Devi Wife Of Shri Mahadev, Aged About 31
Years,
Both By Caste Mali, Daughter Of Late Shri Bihari Lal,
Resident Of Village Jatwada, Tehsil Bassi, District Jaipur
8/1/4 Smt. Revadi Devi Wife Of Shri Ramji Lal, By Caste Mali,
Daughter Of Late Shri Bihari Lal, Aged 27 Years, Resident
Of Village Jatwada, Tehsil Bassi, District Jaipur
8/1/5 Smt. Uganti Devi Wife Of Shri Radhey Shyam, By Caste
Mali, Daughter Of Late Shri Bihari Lal, Aged 25 Years,
Resident Of Village Madhogarh, Tehsil Bassi, District
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Jaipur
8/1/6 Smt. Asha Devi Wife Of Shri Hem Raj, By Caste Mali,
Daughter Of Late Shri Bihari Lal, Aged 23 Years, Resident
Of Village Madhogarh, Tehsil Bassi, District Jaipur
8/2. Ram Narain, Aged About 48 Years, Son Of Late Santa
8/3. Deva Ram Son Of Late Santa, Aged About 45 Years,
All Resident Of Village Mohanpura, Tehsil Bassi, District
Jaipur
8/4. Smt. Budhi Wife Of Shri Nathu Ram, Daughter Of Late
Santa, Resident Of Village Himmatpura, Tehsil Bassi,
District Jaipur
8/5. Smt. Kali Devi Wife Of Shri Lallu Ram, By Caste Mali,
Daughter Of Late Santa, Resident Of Village Banskhoh,
Tehsil Bassi, District Jaipur
9. Mangla Son Of Ladu, (Expired During Pendency Of Suit)
9/1. Ramji Lal, Aged About 40 Years, Son Of Late Mangla
9/2. Smt. Mota Wife Of Shri Nathu Ram Mali, Daughter Of Late
Mangla, Resident Of Village Hajaran Ki Dhani, Khedi,
Tehsil Bassi, District Jaipur
9/3. Smt. Manbhar Wife Of Shri Mahadevji Mali, Daughter Of
Late Mangla, Resident Of Village Banskhoh, Tehsil Bassi,
District Jaipur
10. Bhonri Lal, Son Of Govinda
11. Smt. Dhapa, (Expired During Pendency Of Suit)
11/1 Bhonri Lal, Aged About 45 Years, Son Of Late Govinda
11/2 Smt. Hira Devi Wife Of Shri Hari Narain Mali, Daughter Of
Late Govinda,
Both Resident Of Village Booj, Tehsil Jamwa Ramgarh,
District Jaipur
11/3 Smt. Chhota Devi Wife Of Shri Sita Ram Mali, Daughter
Of Late Govinda, Resident Of Village Sumel, Tehsil Jaipur,
District Jaipur
----Petitioners
Versus
1. Badri @ Badri Narain Son Of Shri Pratap @ Ram Pratap,
By Caste Bhatt Brahmin, Resident Of Plot No. C/e-64,
Vidhyadhar Nagar, Jaipur
2. Devi Shankar Sharma Son Of Shri Prabhu Narain Sharma,
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By Caste Brahmin, Resident Of Plot No. 75, Mahaveer
Nagar-I, Tonk Road, Jaipur
3. Smt. Sushila Wife Of Shri Giriraj Kumar Sharma, By Caste
Goud Brahmin, Resident Of House No. 2891, Jai Niwas,
Bhindo Ka Rasta, Near Indra Bazar, Jaipur (Expired During
Pendency Of Suit)
3/1. Shri Giriraj Kumar Sharma Son Of Not Known, Husband
Of Late Sushila Sharma
3/2 Shri Vishnu Kumar Sharma, Son Of Shri Giriraj Kumar
Sharma,
Resident Of House No. 2891, Bhindo Ka Rasta, Near Indra
Bazar, Jaipur
3/3 Vinay Sharma, Son Of Shri Giriraj Kumar Sharma,
Resident Of House No. 2891, Bhindo Ka Rasta, Near Indra
Bazar, Jaipur
----Respondents
For Petitioner(s) : Mr. Prarag Rastogi
For Respondent(s) : Mr. Sandeep Bhagwati
HON'BLE MR. JUSTICE PRAKASH GUPTA
Date of Order :: 30th May, 2020
This writ petition has been filed by the petitioners- plaintiffs (hereinafter referred to as 'the plaintiffs') against the order dated 18.1.2019 whereby the application filed by the respondents-defendants (hereinafter referred to as 'the defendants') under Section 151 CPC has been partly allowed with the direction that Ex.-1 shall not be read in evidence and the application filed by the plaintiffs under Section 35 of Rajasthan Stamp Act has been dismissed.
Facts of the case are that the plaintiffs filed a suit for declaration, cancellation of the registered sale deed dated 30.10.2008 and permanent injunction. During the pendency of the suit, the defendants filed an application under Section 151 CPC (Downloaded on 04/06/2020 at 08:51:41 PM) (4 of 6) [CW-6774/2019] mentioning that Ex.-1 is neither endorsed on a stamp paper nor is a registered document, therefore, it ought not to have been marked as an Exhibit. The plaintiffs also filed an application under Section 35 of the Rajasthan Stamp Act for impounding the document and sending the same to the Collector (Stamps) for assessment of court fee and penalty payable thereon. The Trial Court, vide its order dated 18.1.2019, partly allowed the application filed by the defendants. While the Trial Court directed that Ex. -1 shall not be read in evidence, it dismissed the application filed under Section 35 of Rajasthan Stamp Act for impounding the said document.
Learned Counsel for the plaintiffs submits that by virtue of the proviso to Section 49 of the Registration Act, 1908, an unregistered sale deed of an immovable property of the value of Rs. 100/- and more could be admitted in evidence for collateral purpose and the same may not required to be registered. He further submits that a per Section 39 of the Rajasthan Stamps Act, 1998, an instrument which has not been executed on a proper stamp value can be admitted in evidence on payment of duty with penalty thereon. In this regard, the application was filed by the plaintiffs under the Rajasthan Stamp Act, but the learned Trial Court has utterly failed to consider this aspect of the matter and while partly allowing the defendants' application under Section 151 CPC, dismissed the plaintiffs' application under Section 35 of Rajasthan Stamp Act. Hence, the impugned order is liable to be quashed and set-aside.
In support of his contentions, he has placed reliance on the following judgments:
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I) S. Kaladevi Versus V.R. Somasundaram & Ors. reported in
2010 (1) WLC (SC) Civil 672,
II) Hazari Lal Versus Ratan Lal & Ors. reported in 2009 (1) RRT
528
III) Vishnu Swaroop Versus Civil Judge (JD) & Ors. reported in 2008 (3) WLC (Raj.) 34 IV) Yusuf Ali Khan & Ors. Versus Vimal Kumar & Ors. reported in 2006 (2) DNJ (Raj.) 781 V) Rikhi Ram Versus Sada Ram and others reported in AIR 1977 Punjab & Haryana page 94 On the other hand, learned counsel for the defendants supported the impugned order and stated the same to be just and proper. He submits that the document, being unregistered and unstamped, the same ought not to have been exhibited.
Heard. Considered.
As per Section 17 of the Registration Act, a document which is neither properly registered nor stamped cannot be rendered admissible in evidence but the same can be used for collateral purposes as per Section 49 of the Act. In this view of the matter, the Trial Court observed that the impugned document filed by the plaintiffs was not for collateral purpose, but was filed to serve the main purpose of the suit i.e. to establish ownership and title. The Trial Court further observed that in this case, the suit was not filled for specific performance of the contract.
So far as the judgment passed by the Hon'ble Apex Court in the case of S. Kaladevi (supra) is concerned, it does not apply to the instant case for the reason that in the said case, suit was filed for specific performance of the contract, but in the (Downloaded on 04/06/2020 at 08:51:41 PM) (6 of 6) [CW-6774/2019] instant case, suit has been filed for seeking declaration, cancalleation of the sale deed and permanent injunction.
So far as the judgment passed in the case of Hazari Lal (supra) is concerned, the same also does not apply to the instant case because in the said case, land was purchased by the plaintiff from the defendant for using as a way, whereas in the instant case, the plaintiffs are claiming their right on the basis of adverse possession.
Similarly the judgment passed in the case of Vishnu Swaroop (supra) also does not apply to the facts of the instant case on the ground that the said case related to dissolution of partnership firm, which is not the situation in this case.
I am in agreement with the findings arrived at by the Trial Court in its impugned order.
This writ petition has been filed under Article 227 of the Constitution of India. The power under Article 227 of the Constitution is to be exercised in cases of jurisdictional error, apparent perversity, patent illegality or manifest injustice, which is not the situation here in this case.
For the aforesaid reason, the writ petition fails and the same is hereby dismissed. Consequently, the stay application also stands dismissed.
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