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Rajasthan High Court - Jodhpur

Hazari Lal vs Ratan Lal & Ors on 23 January, 2009

Author: Prakash Tatia

Bench: Prakash Tatia

                                                  SB Civil Writ Petition No. 5846/07
                                               Hazari Lal v. Ratan Lal & ors.
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                   SB Civil Writ Petition No. 5846/07
                     Hazari Lal v. Ratan Lal & ors.


Date of Order:-                                       23.1.2009


             HON'BLE MR.JUSTICE PRAKASH TATIA


Mr. Sanjay Nahar for the petitioner.
Mr. BL Choudhary for the respondents.

                                  ...

Heard learned counsel for the parties.

The petitioner's Deed Ex.4 with the title of sale-deed has not been admitted in evidence by the court's order dated 25.4.2007 passed in Civil Original Suit No.35/05. Hence this writ petition has been preferred by the petitioner.

In suit which appears to be of composite nature of declaration of easementary right with the claim that the plaintiff purchased the said land to be used for the way of the plaintiff from the defendant, the plaintiff sought to produce the deeds dated 3.9.1977 and 13.3.1982. The objection of the defendant was that the documents were not executed on proper stamps and are not registered and, therefore, cannot be admitted.

According to the learned counsel for the petitioner, the documents in question were produced to show the nature of the use of SB Civil Writ Petition No. 5846/07 Hazari Lal v. Ratan Lal & ors.

the land by the plaintiff and not to establish the title to the property. It is submitted that the prayer of the plaintiff was also for declaration that the plaintiff acquired the easementary right over the land in question, therefore, in view of the provision to Section 49 of the Registration Act and in view of the provision to Section 35, the documents could have been admitted in evidence. The learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Bondar Singh and others v. Nihar Singh and others (AIR 2003 SC 1905) and judgment of this Court delivered in the case of Vishnu Swaroop v. Civil Judge (JD) & ors. ( 2008(3) WLC(Raj.) 34). The learned counsel also relied upon the judgment of this Court delivered in the case of Munna v. Om Prakash &l anr. (2008(2) RJT 1333).

The learned counsel for the respondents submitted that the documents cannot be admitted in evidence even for collateral purpose, as held in the case of Smt. Jamna Bai v. Tulsi Ram ( AIR 1997 Raj. 85).

I considered the submissions of the learned counsel for the parties and perused the above judgments and the relevant provisions of law.

Section 35 of the Indian Stamps Act, 1899 contains the proviso (a) which says that any such instrument, i.e. the instrument which has not been executed on the stamp of proper value shall be admitted in evidence on payment of duty with which the same is chargeable with SB Civil Writ Petition No. 5846/07 Hazari Lal v. Ratan Lal & ors.

penalty. The clause (a) under the proviso to Section 35 is as under:-

"(a) any such instument shall, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion."

In view of the above reason, it is clear that a document which has not been executed on stamps, even when it is required to be executed on stamps or it is executed on insufficient stamps then that can be admitted in evidence on payment of proper stamp duty and penalty thereon.

The provision to Section 49 of the Registration Act is also very clear which has been noticed by this Court even in the case of Jamna Bai (supra), relied upon by the learned counsel for the respondents, which clearly says that the document can be allowed to be admitted in evidence for a collateral purpose or to determine the nature and character of possession and there cannot be any dispute regarding the correctness of this proposition.

In view of the above reason and in view of the judgment referred above, the order of the trial court proceeded on wrong assumption of SB Civil Writ Petition No. 5846/07 Hazari Lal v. Ratan Lal & ors.

law and hence liable to be set aside.

In view of the above reason, the writ petition is allowed and the order of the trial court dated 25.4.2007 is set aside. The application filed by the petitioner is allowed and the document in question is allowed to be taken on record and be sent to the Collector. On payment of stamp duty and penalty, if imposed by the competent authority, the above document be admitted in evidence for collateral purpose.

(PRAKASH TATIA)J mlt.