Madhya Pradesh High Court
Smt. Sarvar Bano Through Power Of ... vs Smt. Manju Singh on 3 November, 2022
Author: Anjuli Palo
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANJULI PALO
ON THE 03rd OF NOVEMBER, 2022
REVIEW PETITION No. 519 of 2022
BETWEEN:-
SMT. SARVAR BANO W/O SHRI MIRAJUDDIN,
AGED ABOUT 79 YEARS, VILLAGE BAWADIYA
KHURD TAHSIL HUZUR DISTRICT BHOPAL
PRESENTLY RESIDING AT D-14 BDA COLONY
KOH-E-FIZA BHOPAL (MADHYA PRADESH)
THROUGH POWER OF ATTORNEY HOLDER
MOINUDDIN FARUQUI S/O MIRAJJUDIN
FARUQUI
.....APPLICANT
(BY SHRI IMTIAZ HUSSAIN, SENIOR ADVOCATE WITH
MR.MOHD.SAJID KHAN, ADVOCATE )
AND
1. SMT. MANJU SINGH W/O KARTAR SINGH,
AGED ABOUT 37 YEARS, F-5 SRG COMPLEX A-
SECTOR SONAGIRI BHOPAL (MADHYA
PRADESH)
2. THE STATE OF MADHYA PRADESH, THROUGH
COLLECTOR, BHOPAL DISTRICT BHOPAL M.P.
(MADHYA PRADESH)
3. SANJEEV PATEL S/O LATE K.R. PATEL, AGED
ABOUT 46 YEARS, R/O LIG, A-63,
SONAGIRI,BHOPAL (MADHYA PRADESH)
4. GYAN SINGH S/O BABULAL, AGED ABOUT 47
YEARS, R/O 103-B, DEEPMOHINI GOPAL NAGAR,
KHAJOORI KALAN, BHOPAL (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI AVINASH ZARGAR, ADVOCATE )
(BY SHRI PRASANJEET CHATERJEE, PANEL LAWYER)
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Reserved on 29.09.2022
2
Order passed on 03.11.2022
ORDER
Though this matter was listed for orders on admission, however, with the
consent of learned counsel for the parties, the matter is heard finally.
2. This application under Order 47 Rule 1 CPC has been filed by the
applicant (petitioner) seeking review of order dated 30.3.2022 passed in
Misc.Petition No.1406/2018 whereby the petition filed by the applicant under
Article 227 of the Constitution of India has been dismissed.
3 . The respondent/plaintiff filed a civil suit for specific performance of
contract which was entered into with applicant/defendant in respect of purchase
of agricultural suit lands. Alongwith plaint the respondent/plaintiff filed sale deed
executed on stamp paper of Rs.50/- (five of Rs.10/- denomination each). It is
alleged that in the plaint that document was pleaded to be sale deed and not a
draft thereof, which was signed by seller, purchaser and witnesses and
contained their photographs. During pendency of civil suit, the
applicant/defendant filed an application u/s 17 of Registration Act read with
section 35 of the Stamps Act praying not to permit the plaintiff to exhibit the
sale deed on the ground that photocopy of said document is not admissible in
evidence, and if in case original is produced, the same is neither properly
stamped nor registered.
4 . The trial Court vide impugned order dated 07.3.2018 dismissed the
application filed by the applicant/defendant under section 17 of the Registration
Act r/w section 35 of the Stamps Act.
5 . Being aggrieved with the aforesaid order of trial Court, the
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applicant/defendant filed Misc.Petition No.1406/2018 under Article 227 of the
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Constitution of India before this Court on the ground that if a document is
projected as sale deed the same is required to be properly stamped and
impounding and further thatn photocopy of document by way of secondary
evidence is not permissible in law.
6. This Court by appreciating the totality of circumstances and by
referring to the decision in the case of Ameer Minhaj Vs. Dierdre Elizabeth
(wright) Issar and others, (2018) 7 SCC 639 dismissed the aforesaid
Misc.Petition vide order dated 30.3.2022.
7. The applicant being dissatisfied with order dated 30.3.2022 has filed
review/recall of the same on the ground that observation in para 6 of the order
under review that trial Court permitted the plaintiff to exhibit unregistered
proforma of sale agreement is factually not correct and against the pleaded case
of the plaintiff in plaint. The document is a sale deed and not an agreement to
sale as is clear from the endorsement of stamp vendor. In paras 6 & 7 of the
plaint the document is pleaded to be sale deed and not a draft of sale deed,
which is alleged to be signed by the seller, purchaser as well as witnesses
alongwith affixing respective photographs. Since document is a sale deed and
hence, it is required to be properly stamped as per the market value. This Court
ought to have properly appreciated that instruments, which are not duly
stamped are inadmissible in evidence. For admissibility of a document its recital
are decisive and not the factual situation and it it the question which has been
raised before the trial Court. The decisions placed reliance upon by this Court
in the case of Ameer Minhaj (supra) and Kaladevi Vs. V.R.Somasundaram,
(2018) 7 SCC 639 deal with the question of stamp duty payable on the
document. The provisions of Article 23 and explanation thereof as also that of
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Stamps Act deserved proper consideration. Though unregistered sale deed can
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be used for collateral purposes, subject to it bears adequate stamp duty. The
agreement to sale which recites delivery of possession of property is deemed to
be conveyance and requires stamp duty. In case of S.Kaladevi (supra) the
question of payment of deficit stamp duty under section 35 and Article 23 of
the Stamp Act was not dealt with and hence, it was distinguishable. A conjoint
reading of provisions of section 35 of Stamp Act and section 49 of Registration
Act would reveal that provisions of section 49 cannot be read in isolation, but
with section 35 of the Stamp Act. An under-stamped unregistered sale deed
cannot be received in evidence unless and until proper stamp duty is paid
thereon. The Court ought to have appreciated that before benefit of section 49
is extended to plaintiff, he is bound to comply with section 35 of the Stamp
Act, as it not an exception to section 35 of the Stamp Act. In support of his
submissions learned counsel has placed reliance on the decisions in the cases of
Omprakash Vs. Laxminarayan, (2014) 1 SCC 618, Avinash Kumar
Chauhan Vs. Vijay Krishna Mishra, (2009) 2 SCC 532 and Mansingh Vs.
Rameshwar, 2010 (2) MPLJ 140.
8. Hence, the petitioner prayed to recall the impugned order and the
matter be directed to be reheard and decided afresh.
9. Heard learned counsel for the parties. Perused the record. In paras 7
& 8 of the impugned order this Court has clearly held as under:-
".........if the document is not registered but exhibited it will bear will
bear an endorsement that it is admissible only as evidence of agreement to
sell in suit for specific performance under Specific Relief Act and shall not
have any effect for purposes of Section 53-A of Transfer of Property
Act. The genuineness, validity and binding nature of document or
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whether it is hit by any provisions of the Transfer of Property Act or Stamp
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adduce oral and documentary evidence.
8 . Thus, it is clear from the aforesaid decision of the Supreme Court
that the document/sale-deed (Annexure P-3) filed by the plaintiff is admissible
only as evidence of agreement to sell in a suit for specific performance
under Specific Relief Act and its genuineness, validity and binding nature
may be adjudicated at 3 appropriate stage after parties adduce oral and
documentary evidence. Therefore, in my considered opinion, the trial
Court has not committed any illegality in rejecting the application filed by
the petitioner/defendant under Section 17 of the Registration Act read with
Section 35 of the Stamp Act."
10. It is well settled principle for review of any order that there should
be an apparent error on the face of record. But, the applicant did not indicate
any apparent mistake in the impugned order. Nor he has challenged it before
any appellate forum. As per the impugned order the Court gave permission to
the plaintiff to mark/exhibit the unregistered sale agreement. It was not admitted
as evidence.
11. In this regard it is worth referring to paragraphs 11, 12, 13 & 14 of
the decision in the case of S.Kaladevi (supra) wherein it has been observed as
under:-
"Section 49 gives teeth to Section 17 by providing effect of non-registration
of documents required to be registered. Section 49 reads thus:
"S.49.- Effect of non-registration of documents required to be registered.- No
document required by section 17 or by any provision of the Transfer of Property
Act, 1882 (4 of 1882), to be registered shall-
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(a) affect any immovable property comprised
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(b) confer any power to adopt, or
(c) be received as evidence of any transaction
affecting such property or conferring such power, unless it has been
registered:
Provided that an unregistered document affecting immovable property and
required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be
registered may be received as evidence of a contract in a suit for specific
performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as
evidence of any collateral transaction not required to be effected by registered
instrument."
11. The main provision in Section 49 provides that any document which is
required to be registered, if not registered, shall not affect any immovable property
comprised therein nor such document shall be received as evidence of any
transaction affecting such property. Proviso, however, would show that an
unregistered document affecting immovable property and required by 1908 Act or
the Transfer of Property Act, 1882 to be registered may be received as an evidence
to the contract in a suit for specific performance or as evidence of any collateral
transaction not required to be effected by registered instrument. By virtue of
proviso, therefore, an unregistered sale deed of an immovable property of the value
of Rs. 100/- and more could be admitted in evidence as evidence of a contract in a
suit for specific performance of the contract. Such an unregistered sale deed can
also be admitted in evidence as an evidence of any collateral transaction not
required to be effected by registered document. When an unregistered sale deed is
tendered in evidence, not as evidence of a completed sale, but as proof of an oral
agreement of sale, the deed can be received in evidence making an endorsement
that it is received only as evidence of an oral agreement of sale under the proviso to
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12. Recently in the case of K.B. Saha and Sons Private Limited v.
Development Consultant Limited1, this Court noticed the following statement of
Mulla in his Indian Registration Act, 7th Edition, at page 189:-
"......The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna,
Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu &
Kashmir; the former Chief Court of Oudh; the Judicial Commissioner's Court at
Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a
document which requires registration under Section 17 and which is not admissible
for want of registration to prove a gift or mortgage or sale or lease is nevertheless
admissible to prove the character of the possession of the person who holds under
it......"
(This Court then culled out the following principles:-
"1. A document required to be registered, if unregistered is not admissible
into evidence under Section 49 of the Registration Act.
2 . Such unregistered document can however be used as an evidence of
collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3 . A collateral transaction must be independent of, or divisible from, the
transaction to effect which the law required registration.
4 . A collateral transaction must be a transaction not itself required to be
effected by a registered document, that is, a transaction creating, etc. any right, title
or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of
its terms can be admitted in evidence and that to use a document for the purpose of
proving an important clause would not be using it as a collateral purpose."
To the aforesaid principles, one more principle may be added, namely, that a
document required to be registered, if unregistered, can be admitted in evidence as
evidence of a contract in a suit for specific performance.
13. In Kalavakurti Venkata Subbaiah v. Bala Gurappagari Guruvi Reddy2,
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the question presented before this Court was (1999) 7 SCC 114 whether a decree to
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respondent therein filed a suit for specific performance seeking a direction to
register the sale deed. The contention of the appellant, however, was that decree for
specific performance based on unregistered sale deed could not be granted. This
Court noticed the provisions contained in Part XII of 1908 Act, particularly Section
77, and difference of opinion between the various High Courts on the aspect and
observed:-
"The difference of opinion amongst the various High Courts on this aspect
of the matter is that Section 77 of the Act is a complete code in itself providing for
the enforcement of a right to get a document registered by filing a civil suit which
but for the special provision of that section could not be maintainable. Several
difficulties have been considered in these decisions, such as, when the time has
expired since the date of the execution of the document whether there could be a
decree to direct the Sub-Registrar to register the document.
On the other hand, it has also been noticed that an agreement for transfer of
property implies a contract not only to execute the deed of transfer but also to
appear before the registering officer and to admit execution thereby facilitating the
registration of the document wherever it is compulsory. The provisions of the
Specific Relief Act and the Registration Act may to a certain extent cover the same
field but so that one will not supersede the other. Where the stage indicated in
Section 77 of the Act has reached and no other relief except a direction for
registration of the document is really asked for, Section 77 of the Act may be an
exclusive remedy. However, in other cases it has no application, inasmuch as a suit
for specific performance is of a wider amplitude and is primarily one for
enforcement of a contract and other consequential or further relief. If a party is
seeking not merely the registration of a sale deed, but also recovery of possession
and mesne profits or damages, a suit under Section 77 of the Act is not an adequate
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remedy.
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14. This Court then held that the first appellate court rightly took the view
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that under Section 49 of the 1908 Act, unregistered sale deed could be received in
evidence to prove the agreement between the parties though it may not itself
constitute a contract to transfer the property. It was held:-
"......The document has not been presented by the respondent to the Sub-
Registrar at all for registration although the sale deed is stated to have been
executed by the appellant as he refuses to cooperate with him in that regard.
Therefore, various stages contemplated under Section 77 of the Act have not arisen
in the present case at all. We do not think, in such a case when the vendor declines
to appear before the Sub-Registrar, the situation contemplated under Section 77 of
the Act would arise. It is only on presentation of a document the other circumstances
would arise. The first appellate court rightly took the view that under Section 49 of
the Act the sale deed could be received in evidence to prove the agreement between
the parties though it may not itself constitute a contract to transfer the property.....
".
12. In the light of above observations made by the Hon'ble Apex Court,
this Court does not find any reason to review or recall the impugned order. If
the petitioner has any grievance against the order, he can challenged the same
before the appellate Court. This Court cannot sit as an appellate authority.
1 3 . The scope of review, is very limited and has been dealt with in
catena of decisions. It is well settled in law that in the guise of review, rehearing
is not permissible. In order to seek review it has to be demonstrated that order
suffers from error apparent on the face of record. The Court while
deciding the application for review cannot sit on appeal over the order
passed by it. An order or decision
or judgment cannot be corrected merely because it is erroneous in law or on the
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ground that a different view could have been taken by the Court/Tribunal on
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a point of fact or law. In any case, while exercising the power of
review, the concerned Court/Tribunal cannot sit in appeal over its
judgment/decision. It is apparently clear that all the grounds taken by the
learned counsel for the petitioner in detail are mentioned in the petition with the
intention to obtain the fresh
findings of this Court.
14. In the case of Asharfi Devi v. State of U.P. , (2019) 5 SCC 86 it
has been held by Hon'ble the Supreme Court that it is a settled law that every
error whether factual or legal cannot be made subject matter of review under
Order 47 Rule 1 of the Code though it can be made subject matter of appeal
arising out of such order. In other words, in order to attract the provisions of
Order 47 Rule 1 of the Code, the error/mistake must be apparent on
the face of the record of the case.
15. For review there must be error apparent on the face of record, re-
appraisal of the entire evidence on record for finding the error would amount to
exercise the appellate jurisdiction which is not permissible, mere fact that
two views on the same subject are possible is not a ground for review
of the earlier order passed by a bench of the same strength, where the remedy
of appeal is available the power of review should be exercised by the Court with
greater circumspection. The petitioner cannot be given liberty to readdress the
Court on merits because it is not an appeal in disguise where the judgment is to
be considered on merits. [See: Meena Bhanja v. Nirmal, (1995) 1 SCC 170;
Haridas Das v. Usha Rani, 2006 (3) MPLJ (SC) 226; Union of India v.
Sandur, (2013) 8 SCC 337; State of Rajasthan v. Surendra, 2014 MPLJ
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OnLine (SC) 1; Sivakami v. State of Tamil Nadu , (2018) 4 SCC 587; J.R.
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Raghupathy Vs. State of A.P. (AIR 1988 SC 1681), S.Bagirathi Ammal v.
Date: 2022.11.04 19:15:24 IST
Palani Roman Catholic Mission, (2009) 10 SCC 464 and State of West
Bengal and Others v. Kamal Sengupta and another, (2008) 8 SCC 612 ].
16. In the result, this review petition stands dismissed.
(SMT. ANJULI PALO)
JUDGE
RM
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