Rajasthan High Court
Smt. Sajjan Devi Kothari Wife Of ... vs The Nagar Sudhar Nyas on 26 August, 2021
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 376/2021
Smt. Sajjan Devi Kothari Wife Of Late Shri Chhagan Lal Kothari,
Aged About 76 Years, Resident Of 10, Mahaveer Colony, Pushkar
Road, Ajmer.
----Petitioner-Plaintiff
Versus
1. The Nagar Sudhar Nyas, Ajmer (Now Ajmer Development
Authority), Todarmal Marg, Ajmer Through its Secretary.
2. The Assistant Town Planner, Urban Improvement Trust
(Now Ajmer Development Authority), Ajmer.
3. Smt. Panna Kothari Wife Of Shri Jinesh Kothari, Resident
Of House No. 1, Aadinath Colony, Ramnagar, Ajmer.
----Respondents-Defendants
For Petitioner(s) : Mr. S.K. Saksena, Advocate
For Respondent(s) : Mr. Anirudh Tyagi, Advocate
Mr. Prateek Singh, Advocate
HON'BLE MR. JUSTICE PRAKASH GUPTA
Order
Date of Order :: 26/08/2021
This writ petition under Article 227 of the Constitution
of India has been filed by the petitioner-plaintiff (for short, 'the
plaintiff') against the order dated 19.12.2020 passed by the Trial
Court in Civil Suit No. 28/20213, whereby the application filed by
the plaintiff under Section 151 CPC readwith Section 17 and 49 of
the Registration Act, 1908 and Rajasthan Stamp Act, 1998 has
been dismissed.
Facts of the case are that the plaintiff filed a suit
seeking declaration for cancellation of lease deed. The defendants
(2 of 4) [CW-376/2021]
filed their written statement. Necessary issues were framed. The
respondent- defendant no.3 (for short, 'the defendant no.3') filed
two applications : (i) under Section 8 Rule 1(3) readwith Section
151 CPC for taking the documents on record; and (ii) under
Section 65 of the Evidence Act for producing secondary evidence
in respect of agreement dated 24.5.1989, order dated 21.5.2003
and agreement dated 15.2.2013. The plaintiff filed reply of both
the applications. The Trial Court vide its order dated 13.8.2019
allowed both the applications of the defendant subject to payment
of cost of Rs. 2000/- and took the documents on record. The
defendant filed an application under Section 151 CPC readwith
Section 17 and 49 of the Registration Act, 1908 (for short, 'the Act
of 1908') and Rajasthan Stamp Act, 1998 (for short, 'the Act of
1998') with regard to admissibility of agreement dated 24.5.1989.
The defendant filed reply of the said application. The said
application has been dismissed by the trial court vide its order
dated 19.12.2020. Hence, this writ petition.
It is submitted by learned counsel for the plaintiff that
by the purported agreement dated 24.5.1989, full consideration
was paid and possession of the property was handed over,
therefore, in view of section 54 of the Transfer of Property Act,
1882 (for short, 'the Act of 1882') it was a complete sale. In this
view of the matter, the document in question ought to be required
to be registered as also sufficiently stamped and in absence of its
registration and sufficiently stamped, it was inadmissible in
evidence. In support of his submissions, he has placed reliance on
the following judgments:
(i) 2013 (2) WLC (SC) Civil 784
(3 of 4) [CW-376/2021]
(ii) 2014 SAR Civil 62
(iii) 2012 (3) DNJ Raj. 1705
(iv) AIR 2007 SC 1721
(v) AIR 2017 Raj. 215
He has drawn the attention of the Court towards the
relevant provisions of the Act of 1908 and submits that as per
sub-section (1)(c) of Section 17 of the Act of 1908, the non-
testamentary instruments which acknowledge the receipt or
payment of any consideration on account of the creation,
declaration, assignment, limitation or extinction of any such right,
title or interest are required to be registered. Likewise, Section 49
of the Act of 1908 deals with effect of non-registration of
documents required to be registered. The agreement in question
being insufficiently stamped was inadmissible in evidence in view
of the provisions of Act of 1998. However, the trial court has failed
to consider the plea taken by the plaintiff in her application as also
the legal provisions and dismissed the same on flimsy ground. On
this count, the impugned order is liable to be quashed and set-
aside.
On the other hand, learned counsel for the defendants
defended the impugned order and submit that the agreement in
question was executed on 24.5.1989, whereas amendment in
Section 17(f) of the Registration Act, 1908 was introduced on
18.9.1989. Therefore, the trial court has rightly held that the
agreement in question is not required to be registered and thus
admissible in evidence.
Heard. Considered.
(4 of 4) [CW-376/2021]
It is an admitted fact that in pursuance of the
agreement dated 24.5.1989, full sale consideration of Rs.
80,000/- was paid and possession was handed over to the
purchaser.
Similar objections were taken in the application filed by
the plaintiff before the trial court, as argued by learned counsel for
the plaintiff before this Court, but without considering the said
objections, the trial court dismissed the plaintiff's application only
on the ground that agreement in question was executed on
24.05.1989 whereas amendment in Section 17(f) of the Act of
1908 was made applicable on 18.9.1989.
For the aforesaid reasons, the writ petition deserves to
be allowed and the same is allowed. Accordingly, the impugned
order dated 19.12.2020 passed by the Trial Court is quashed and
set-aside and the Trial Court is directed to decide the plaintiff's
application afresh after considering the plea taken by her in the
application as also in the light of the judgments cited in the
application.
Consequent upon the disposal of the writ petition, stay
application also stands disposed of accordingly.
(PRAKASH GUPTA),J
DK/4
Powered by TCPDF (www.tcpdf.org)
