Telangana High Court
Smt. Enabothula Vanamala vs Junnuthula Subha on 7 June, 2023
HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU
C.R.P.NO.1882 of 2021
JUDGMENT :
This Civil Revision Petition has been filed by the petitioner, who is plaintiff in O.S.No.88 of 2009 on the file of VII Additional District Judge, Warangal, being aggrieved by the order of the learned Additional District Judge dated 29-10-2021 by which the learned District Judge overruled the objection raised by the petitioner/plaintiff when the respondents/defendants sought to mark some unregistered agreement of sale as exhibits on their behalf.
2. The petitioner/plaintiff questioned the docket order dated 29-10-2021, where under the Court below held that 'Mere marking of unregistered Agreements of Sale and Receipts does not per se amount to recognizing any right in favour of the defendants to prove their title over the schedule property'. The very nature of the documents titled as agreements of sale and receipts showing the delivery of possession has to be determined at the time of final disposal of the suit and no right is created in favour of the defendants, therefore the same can be received, and overruled the objection raised by the petitioner/plaintiff. The plaintiff has filed 2 SSRN,J C.R.P. No.1882 of 2021 OS.No.88 of 2009 for declaration of title and recovery of possession of three items shown in the plaint schedule. The defendants have filed OS.No.161 of 2014 and OS.No.164 of 2014 seeking perpetual injunction in favour of plaintiff and her husband. Both the suits were clubbed with OS.No.88 of 2009 and evidence has been recorded in OS.No.88 of 2009.
3. During the course of trial, the defendants wanted to produce five original agreements of sale dated 14-07-1993 and five receipts dated 20-07-1993 executed in favour of J.Raji Reddy, J.Shobha, K.Sripal Reddy (defendant No.3), Kapidi Padma and in Sunil Kumar (defendant No.6). The plaintiff raised an objection for marking the documents on the ground that they are not merely agreements of sale but complete sales which is evident by the receipts which show delivery of possession. Even though Section 49 of Registration Act provides Registration is not required to prove a collateral transaction, there is a bar by virtue to provision 49 and section 17 (1)(A) of Registration Act by which despite of stamp duty and penality, the documents sought to be produced by the defendants cannot be marked.
4. Both the parties have submitted their respective arguments in support of their claims. The defendants relied on Judgments reported in 'Smt.Kamala Devi and others vs. Y.Anthi 3 SSRN,J C.R.P. No.1882 of 2021 Reddy and others'1, 'Y.Vijayalakshmi and others vs. Ashish Agarwal and others'2, 'Avinash Kumar Chauhan vs. Vijay Krishna Mishra'3, 'M.Manjula and others vs. Gajam Chandraiah (Died) and others'4, whereas, the plaintiffs relied on Judgments reported in 'K.B.Saha and Sons Pvt. Ltd. Vs. Development consultant Ltd.,'5, V.Madhusudhan Rao and others vs. S.Nirmala Bai and others'6, 'Anga Bhuloka Rao vs. Noorjahan Begum'7, 'Sakalabhaktula Lalitha and another vs. Nandana Ranga Rao (Died) and others'8, 'Ranga Reddy vs. Sadhu Padamma and others'9, 'Banguru Ramathulasamma vs. Yedem Masthan Reddy and others'10, 'Neerukonda Hanumantha Rao vs. Puthumbaka Narayanaprasad and others'11, 'S.Ravinder Reddy and another vs. State of Telangana rep. by its Principal Secretary, Department of Revenue, Hyderabad and others'12.
1 2019 (6) ALT 344 (TS) 2 AIR 2020 Telangana 17 3 2009 (1) L.S.35 (SC) 4 2011 (6) ALD 109 5 2008 (6) ALD 92 (SC) 6 2019 (3) ALT 79 (AP) 7 2012 (2) ALD (NOC) 19 8 2012 (3) ALT 1 9 2003 (1) ALT 228 10 1998 (4) ALT 796 11 1984 ALT 158 12 2021 (5) ALT 87 (TS) 4 SSRN,J C.R.P. No.1882 of 2021
5. The learned Additional District Judge having heard both parties and after considering the above Judgments overruled the objection raised by the plaintiff.
6. Being aggrieved by the said order, the petitioner/plaintiff filed the present revision and claimed that the order of the Court below over ruling their objection is not tenable on facts, and law. The Court below failed to understand payment of deficit stamp duty does not cure the defect. When it is a case of the respondent that there was a concluded sale, the Court below failed to see the defendants are claiming title under the agreement of sales on one hand and Form No.XIII on the other hand, and the Court below failed to consider that there was a delivery of possession under the receipt and it is settled law that when agreement of sale is followed by delivery of possession, so the transaction is compulsorily registrable. The petitioner has claimed that the finding of the Court below and the agreement of sale and receipt can be read together or separately shall be looked into at the time of trial is erroneous and not in accordance with law. The Court below having concluded that no rights are created in favour of the defendants under the documents still overruled the objection and proceeded to mark the documents, thereby, the said order is liable to be set aside.
5 SSRN,J C.R.P. No.1882 of 2021
7. The petitioner who is plaintiff in OS.No.88 of 2009 filed the revision mainly on the ground that the documents sought to be marked by the respondents/defendants created right over the immovable property, thereby it required registration, stamp duty and penality. Since the documents were not registered, they cannot be received in evidence even for collateral purposes but the Court below failed to consider the objection and overruled the same.
8. As per the record placed before the Court, it shows that the petitioner is plaintiff in OS.No.88 of 2009 which was filed for declaration of title over three different extents of land which was shown as items No.1, 2, 3 in the plaint schedule. Apart from the said suit, there were other suits filed by the respondents/defendants vide OS.No.161 of 2014 and OS.No.164 of 2014. It seems those two suits were filed by the respondents/defendants for perpetual injunction to restrain the petitioner/plaintiff and her husband. The above stated suits were clubbed with OS.No.88 of 2009, therefore, obviously it is the contention of the respondents that they are in possession of the property and they want to mark the agreements of sale along with the receipts for collateral purpose but not for proving their title. The Court below after hearing both parties, came to the conclusion 6 SSRN,J C.R.P. No.1882 of 2021 that the contention of the petitioners with regard to the delivery of possession can only be considered at the time of final disposal and as the documents are sought to be marked for collateral purpose, they can be received in evidence.
9. In a Judgment between 'Bipin Shantilal Panchal v. State of Gujarat and another'13 the Honorable Apex Court was pleased to observe that :
'It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence, the Court does not proceed further without passing order on such objection.
Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings'.
10. In another Judgment 'Dhanpat vs. Sheo Ram (Deceased) through legal representatives and another'14, the Apex Court made the following observation:
'It is not proper for Court not to proceed further without passing an order on each such objection rather all objections raised shall be decided by the Court at the final stage unless there is a legal provision to the contrary, as the bar on taking into evidence a compulsorily stampable document which is not stamped or is deficiently stamped which may then have to be decided as a preliminary issue'.13
2001 (3) SCC 1 14 2020 (16) SCC 209 7 SSRN,J C.R.P. No.1882 of 2021
11. The suit filed by the plaintiff was of the year 2009. In view of the above referred objections, the suit proceedings were stalled since 2021. As rightly held by the trial Court, the documents sought to be produced by the respondents/defendants are only agreements of Sale and the purpose of marking the documents is to prove their possession which is collateral in a suit filed by the petitioner/plaintiff for declaration of her title on three extents of property. Therefore, the trial Court rightly overruled the objection. Therefore, the revision is failed and liable to be dismissed.
12. In the result, the Civil Revision Petition is dismissed. Consequently, Miscellaneous applications if any, are closed. No costs.
__________________________ JUSTICE SAMBASIVA RAO NAIDU Date: 07.06.2023 PLV 8 SSRN,J C.R.P. No.1882 of 2021