Madhya Pradesh High Court
Komal Singh vs Hameer Singh on 21 November, 2016
WP 2564/2012
1
Komal Singh Vs. Hameer Singh & others
21.11.2016
Shri Rishikesh Bohare, learned counsel for the petitioner.
Shri S.K.Shrivastava, learned counsel for the respondent
No.1.
This Writ Petition by defendant under Article 227 of the
Constitution of India is directed against the order dt.16.03.2012 of
the trial court rejecting an application filed under Order 8 Rule 1
(3) of CPC with prayer to take on record the document
dt.16.01.1997 (Ex.P/7).
Facts relevant for disposal of the Writ Petition are that the
plaintiffs/respondents have filed a suit for declaration and injunction pending consideration and mesne profit inter alia contending that the plaintiffs hold the title of the suit land and are in possession and therefore sought a further relief for injunction restraining the petitioner/defendant to interfere in possession.
Defendant/petitioner filed written statement inter alia contending that the land described in document dt.16.1.1997 including the suit land has been relinquished by the plaintiffs in his favour by executing the aforesaid document and since then the defendant/petitioner is in possession and the plaintiffs have no right, title and interest in the suit property.
Plaintiff No.1 filed examination-in-chief under Order 18 Rule 4 of CPC. During the course of cross examination, defendant sought leave of the court to confront the plaintiff No.1 with the aforesaid document dt.16.01.1997. However, objection was raised that the questioned document is not stamped and registered and therefore not admissible.
Per contra, the defendant contended that in view of Order 13 Rule 1 (3) of CPC, since the plaintiff No.1 in para 4 of his examination-in-chief has admitted the aforesaid document, therefore, in the cross-examination, the document can be confronted to the plaintiff No.1 and the rigour of Order 13 Rule 1 of CPC shall not come in the way.
Trial court rejected the application upholding the objection WP 2564/2012 2 with the observation that the document is on a plain paper, there is no mention of details of property and nature of the document, the same is neither stamped nor registered, therefore, such kind of alleged transfer is not in conformity with the provisions of Indian Stamp Act and the Registration Act and accordingly, rejected the application.
Learned counsel for the petitioner/defendant taking exception to the order impugned contends that under Order 13 Rule 1 (3) of CPC, which is quoted as under :-
"Order XIII - Production, Impounding and Return of documents (1) ... ... ...
(2) ... ... ...
(3) Nothing in sub-rule (1) shall apply to
documents--
(a) produced for the cross-examination of the witnesses of the other party; or
(b) handed over to a witness merely to refresh his memory."
the petitioner has right to confront respondent/ plaintiff No.1 with the document admitted by him in his examination-in-chief and the objection related to non admissibility of the document for want of payment of stamp duty and registration is of no consequence. Therefore, trial court ought to have allowed the petitioner/ defendant to confront the plaintiff with the document in cross- examination.
Per contra, Shri S.K.Shrivastava, learned counsel for the respondent/plaintiff No.1 contends that as a matter of fact, there is no admission in para 4 of the deposition of the plaintiff No.1. That apart, the respondents/plaintiffs have made a claim of right to be in possession by virtue of alleged document. It is the case of the defendant that the plaintiffs have relinquished the property in his favour. The observation of the trial court that neither the details of the properties allegedly been relinquished nor the nature of the transfer is spelled out in the document, has substantial bearing on the question whether a mere scribbling on WP 2564/2012 3 a plain piece of paper can tantamount to either relinquishment or sale or any other mode of conveyance under Transfer of Property Act to claim legal possession over the suit property. It is contended that the assertion of lawful right to hold the possession by the defendant since rests upon the alleged document, unless it is properly stamped and registered as per the Indian Stamp Act 1899 and the Registration Act 1908, the same can not be admissible in evidence in view of Section 35 of the Stamp Act and Section 17 (1)(b) of the Registration Act.
Heard learned counsel for the parties.
The sole controversy revolves around the nature of the document dt.16.01.1997, based whereupon a right to hold the land in question has been claimed by the defendant in a suit of declaration of title and injunction at the instance of respondents/ plaintiffs. In the opinion of this court, the observation of the trial court, as regards the nature of the document, can not be faulted with, as ex facie the disputed document does not spell out the details of the properties and the alleged nature of the transfer. In any case, if the petitioner intends to treat the document as relinquishment deed, an application can be filed to impound the document and make it over to the Collector of Stamp for consideration of the nature of the document and for order of affixation of appropriate stamp duty and penalty, if any, before the document is admitted in evidence. However, the respondents/plaintiffs shall always be at liberty to raise the objections available to them in law and on facts.
With the aforesaid direction and observation, the Writ Petition stands disposed of.
(Rohit Arya) Judge SP