Hanuman Prasad Son Of Nathu Lal vs Ramswaroop Son Of Badrilal
2022 Latest Caselaw 544 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR.

             S.B. Civil Writ Petition No. 840/2016

1.     Hanuman Prasad Son Of Nathu Lal, Aged About 65 Years,
       Resident Of Chan, At Present Residing At Beharva Khurd,
       Tehsil Khandar, District Sawaimadhopur.
       (Died) Now Represented By -


1.1.   Ram Shanker Singhal, Son Of Hanuman Prasad
1.2.   Raghunandan Prasad Singhal, Son Of Hanuman Prasad
1.3.   Satyendra Krishna Singhal, Son Of Hanuman Prasad
1.4.   Smt. Indra Devi Daughter Of Hanuman Prasad, Wife Of
       Ramkishan Jain
1.5.   Shakuntala Devi Daughter Of Hanuman Prasad, Wife Of
       Ramotar Gupta
1.6.   Manju Devi Daughter Of Hanuman Prasad, Wife Of Ram
       Charan Gupta,
       All Residents Of Bahravanda Khurd, Tehsil Khandar,
       Sawaimadhopur.
                                                                  ----Petitioners
                                   Versus
1.     Ramswaroop Son Of Badrilal, Resident Of Chan, Tehsil
       Khandar, District Sawaimadhopur.
2.     Om Prakash Son Of Jagannath, Resident Of Chan, Tehsil
       Khandar, District Sawaimadhopur.
3.     Hari Om Son Of Jagannath, Resident Of Chan, Tehsil
       Khandar, District Sawaimadhopur.
4.     Jamaludeen Son Of Immamudeen, Resident Of Ansari
       Mohallah, Sawaimadhopur.
5.     Pankaj Kumar Son Of Buddhi Prakash, Resident Of
       Alanpur, Sawaimadhopur.
6.     Buddhi Prakash Son Of Moti Lal, Resident Of Alanpur,
       Sawaimadhopur.
                                                                ----Respondents

For Petitioner(s) : Mr. Nitin Jain through VC For Respondent(s) : Mr. A.K. Pareek through VC

(2 of 6) [CW-840/2016]

HON'BLE MR. JUSTICE SAMEER JAIN Judgment/Order Reserved on : 12/01/2022

Date of Pronouncement : 21/01/2022

1. Being aggrieved by order dated 06.10.2015 passed by the

learned Additional District Judge, Sawaimadhopur in Civil Suit

No.52/2007 (23/2006), whereby the application filed by the

plaintiff/petitioner u/s 33, 35, 37 and 38 of the Rajasthan Stamp

Act, 1998 (hereinafter referred to as "the Act of 1998") was

dismissed and further being aggrieved by order dated 30.05.2014,

whereby the documents exhibit dated 26.07.1971 being

unstamped and unregistered, were refused to be marked as

exhibits. Hence,the present writ petition is filed under Article 227

of the Constitution of India.

2. Facts of the case are that the plaintiff/petitioner filed a suit

for declaration, permanent injunction and cancellation of sale

deed. During course of plaintiff's evidence, plaintiff filed an

application under Section 33, 35, 37 and 38 of the Act for

impounding the documents dated 26.07.1971 and also requested

for marking the same as exhibits. Vide impugned orders dated

30.05.2014 and 06.10.2015, the said applications were dismissed.

3. It is submitted by Mr. Nitin Jain, counsel representing the

petitioner that the learned trial court has committed error by

refusing to take on record document dated 26.07.1971 as the

same was not duly stamped and registered. Qua the deficit of

registration, his submission was that by virtue of Section 49 of the

Registration Act, 1908 (hereinafter referred to as "the Act of

1908"), more particularly its proviso, his case is covered under

(3 of 6) [CW-840/2016]

exception, as the document in question pertains to collateral

transaction. In support of his claim, he relied upon judgment of

Hon'ble Apex Court in S. Kaladevi vs. V.R. Somasundaram and

Ors. reported in (2010) 5 SCC 401. He emphasized on para-12

of the said judgment, which is reproduced as under :-

"12. 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. The proviso, however, would show that an unregistered document affecting immovable property and required by the 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 Section 49 of the 1908 Act."

4. Counsel for the petitioner further submits that the Hon'ble

Apex Court relied upon provisions of Section 49 of the Act of 1908

and admitted the evidence on record, inspite of the fact that the

same was neither registered nor adequately stamped. As per him,

the ratio of relied upon judgment covers his case and he is entitled

to get relief by quashing the impugned order.

5. Per contra, counsel for the respondents Mr. A.K. Pareek

submitted that as per pleading, the document in question dated

26.07.1971 directly pertains to the case and is not a collateral

(4 of 6) [CW-840/2016]

document. He further submitted that the said document will not

come under the purview of exception to Section 49 and can not be

an admissible piece of evidence. The judgment of S. Kaladevi

(supra) relied upon by the petitioner pertains to contract under

the Specific Relief Act, 1963, whereas the present matter deals

with suit of declaration, permanent injunction and cancellation of

sale deed, wherein proviso to Section 49 is not attracted.

5.1 In support of his claim, counsel for the respondents relied

upon judgment of Co-ordinate Bench in the case of Gopal vs.

Badri @ Badri Narain 2021 (1) WLC (Raj.) 287, wherein para

8 is reproduced as under :-

"8. So far as the judgment passed by the Hon'ble Apex Court in the case of S.Kaladevi (supra) is concerned, it does not apply to the instant case for the reason that in the said case, suit was filed for specific performance of the contract, but in the instant case, suit has been filed for seeking declaration, cancellation of the sale deed and permanent injunction."

5.2 Hece, he submits that in view of above quoted para, the

judgment of S. Kaladevi (supra) was distinguished by stating

that the same was passed in respect of suit for specific

performance of contract which is not the case.

6. Learned counsel for respondents has further relied upon

Hon'ble Apex Court judgment in the case of Omprakash vs.

Laxminarayan and Ors. reported in (2014) 1 SCC 618,

wherein it was held that it is the recital content in the document

that is decisive and conclusive of admissibility of the document. He

submits that in the case at hand, the documents in question do

not pertain to collateral transaction but they are directly related to

(5 of 6) [CW-840/2016]

the issue. Therefore, by virtue of Hon'ble Apex Court judgment,

the same cannot be looked into as admissible piece of evidence on

the ground of being inadequately stamped and unregistered. He

prayed that the present writ petition under Article 227 may be

dismissed with cost and the impugned orders dated 06.10.2015

and 30.05.2014 may be confirmed.

7. I have considered the submissions advanced by respective

counsels, scanned the record of the writ petition and gone through

the judgments cited at bar. This Court is of the view that Article

227 can only be invoked when there is a manifest error or error of

fact is apparent on on the face of record but in the given case, the

learned trial court by a reasoned order has held that the

documents in question being disputed and not adequately

stamped and registered, cannot be considered as admissible piece

of evidence by virtue of Section 35 of the Act 1998 and Section 17

of the Registration Act, 1908. The learned trial court has also held

that Section 49 of the Act of 1908, was also not attracted in the

present case as the suit pertains to question of declaration

permanent injunction and cancellation of sale deed which is not a

collateral transaction and the documents in question were

necessarily required to be registered. The judgment of S. Kaladevi

(supra) reproduced above, does not have application in the facts

and circumstances of the present case.

8. For the reasons given in para-8 of the Co-ordinate Bench

judgment, wherein it is held that proviso to Section 49 can only be

invoked in cases of suit filed for specific performance and not in

the suit in nature of declaration, permanent injunction and

cancellation of sale deed.

(6 of 6) [CW-840/2016]

9. For the reasons stated above, this Court is of the view that

the impugned orders dated 06.10.2015 and 30.05.2014 are legal,

just and proper and do not call for interference of this Court under

Article 227. In the light of above observations, the present writ

petition is dismissed.

10. All pending applications are also disposed of.

(SAMEER JAIN),J

Hemant/66

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