Rajasthan High Court - Jodhpur
Jaisa Ram vs Chatra Ram & Ors on 2 November, 2017
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 13597 / 2017
Jaisa Ram S/o Purba Ram, Aged About 52 Years, By Caste
Brahmin, Resident of Village Kalyansar Purana, Tehsil Shri
Dungargarh, District Bikaner.
----Petitioner
Versus
1. Chatra Ram S/o Binjha Ram
2. Madan Lal S/o Chatra Ram, Both by Caste Jat, Resident of
Village Kalyansar Purana, Tehsil Shri Dungar Garh, District Bikaner
& Presently Residing At Lalgadiya, Tehsil Surat Garh, District Shri
Ganga Nagar.
3. Ramu Ram S/o Deepa Ram, By Caste Jat, Resident of Kalyansar
Purana, Tehsil Shri Dungargarh, District Bikaner.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. AR Godara
_____________________________________________________
JUSTICE DINESH MEHTA
Order
02/11/2017
Present writ petition has been preferred against the order
dated 16.09.2017 passed by the Civil Judge (S.D.) Shri
Dugngargarh, District Bikaner.
Learned counsel for the petitioner fairly submits that the
issue involved in the present is squarely covered against the
petitioner vide judgment dated 26.07.2017 rendered by this Court
in S.B. Civil Writ Petition No.7815/2016 (Om Prakash & Ors. vs.
Madan Lal & Ors.), operative portion whereof is reproduced
hereunder :
" A perusal of the proviso to Section 49 shows that
a document even without registration can be used
for collateral purposes, on which, learned counsel
for the respondents, has heavily relied. The position
of law that a document can be used for collateral
purposes cannot be disputed, but the bone of
contention or the moot question is; as to whether
the purpose, for which the document in question is
(2 of 3)
[CW-13597/2017]
being sought to be used, can at all be considered as
a collateral purpose?
The defendant's sole case is edificed on the
sale deeds dated 27.05.1993 and 05.08.2000, upon
which he has projected his claim that possession
and proprietorship of the property in question has
vested in him. The moment, the defendant seeks to
rely upon these documents as a documents of title
qua the disputed property and claim ownership, the
documents fall foul to Section 17 and 49 of the
Registration Act.
However, the defendant may assert or prove
his position, based on these documents and contend
that he has been enjoying possession of the
property, as the same would fall in the sweep of
collateral purpose, which is permitted under proviso
to Sectiion 49 of the Registration Act.
The learned Trial Court has clearly erred in
defining rather expanding the scope of collateral
purpose, by using the expression, "Prior Transfer
and Possession". The relevant part of order is as
under:-
"fdUrq bl nLrkost esa oknxzLr lEifRr ls tqMh+
iwoZorhZ ?kVuk ,oa vUrj.k ds mYys[k dk rRo
lek;ksftr gksus ls oknxzLr lEifRr ds fgLls fo'ks"k
ds iwoZorhZ vUrj.k ,oa vkf/kiR; ds Lo:i ij
fopkj fd;s tkus dh gn rd mDr nLrkost dks
ek= lhfer ,oa lgikf'oZd iz;kstu (Limited and
Collateral Purpose) gsrq bl Lrj ij iznf'kZr fd;s
tkus dh vuqefr fn;k tkuk fof/klEer izrhr gksrk
gSA"
The order impugned to the extent of permitting
the document to be used as evidence for proving
prior transfer is, therefore, clearly illegal and
contrary to Section 17 and 49 of the Registration
Act, inasmuch as the moment the document is relied
upon for the purpose of proving transfer of any kind
prior, present or future, the requirement of
Registration is a precursor.
As soon as the defendant seeks to show his
title or even predecessor's title, such unregistered
document is hit by the provision of Section 17 and
49 of the Registration Act and the same cannot be
admitted in evidence.
(3 of 3)
[CW-13597/2017]
As an upshot of the above discussion, the
present writ petition is allowed. The order impugned
dated 04.04.2016 passed by the learned Trial Court
is quashed and set aside, the learned Trial Court is
directed to impound the document and send the
same for determination of proper stamp duty, in
accordance with the provisions of Rajasthan Stamp
Act, 1998.
However, since the documents are not
registered, it is clarified that they can be used for
the collateral purpose of showing factum and the
nature of possession only and not otherwise.
The writ petition is allowed as indicated above."
Relying upon the aforesaid judgment and following the law
laid down by Hon'ble Supreme Court rendered in case of Avinash
Kumar Chauhan vs Vijay Krishna Mishra reported in 2009(2)
SCC 532, the writ petition is dismissed.
(DINESH MEHTA), J.
Himanshu/-65