Rajasthan High Court

Smt Sua Devi vs Shri Chhitar And Ors on 27 September, 2022

Bench: Ashok Kumar Gaur

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               S.B. Civil Writ Petition No.6794/2018
Smt. Sua Devi Wife of Shri Naseer Beg, Resident of Village Beer,
Tehsil And District Ajmer
                                                     ----Petitioner-Defendant
                                   Versus
1.     Shri Chhitar Son of Ghisa, aged about 58 years, Resident
       of Village Beer, Tehsil and District Ajmer.
                                                      ----Respondent-Plaintiff

2. Shri Mahaveer Son of Harji

3. Shri Sukhdev Son of Harji, Both Resident of Village Beer Tehsil and District Ajmer

----Proforma Respondents-Defendants

For Petitioner(s) : Mr.Peush Nag, Adv. with Mr.Anurag Mathur, Adv.

For Respondent(s) : Mr.Aditya Kiran Mathur, Adv.

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR Order

27/09/2022

This writ petition has been filed by the petitioner-

defendant challenging the order dated 06.10.2017, whereby

application filed by the petitioner-defendant of not marking the

document/sale deed as an Exhibit, as adduced by the respondent-

plaintiff during recording of evidence, has been dismissed.

Learned counsel for the petitioner submitted that

respondent-plaintiff has filed a suit for permanent injunction

against the petitioner-defendant. The petitioner-defendant filed his

written statement and issues were framed by the Trial Court and

while recording the evidence of respondent-plaintiff, he sought to

place on record copy of sale deed, by which he tried to establish

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that the land in question was purchased by him from Gram

Panchayat in a public auction.

Learned counsel submitted that when the said sale

deed was produced before the Trial Court, the same did not reflect

payment of any stamp duty and the sale deed was also not

registered with the Registering Authority.

Learned counsel submitted that since the document i.e.

sale deed was neither properly stamped nor registered, the

petitioner-defendant filed an application for not considering the

said document in evidence and not to take the said document on

record.

Learned counsel submitted that the reply to the

application was filed by the respondent-plaintiff and the Trial Court

by the impugned order dated 06.10.2017, has dismissed the

application filed for not taking the document on record and has

only directed that if the respondent-plaintiff pays the requisite

stamp duty, the same may be admitted in evidence.

Learned counsel submitted that the sale deed issued

under Rule 271 of the Rajasthan Panchayat and Nyaya

Panchayat (General) Rules, 1961 (hereafter 'the Rules of

1961') has been placed on record as Annexure-2 with the present

writ petition.

Learned counsel submitted that the bare perusal of the

sale deed reveals that the respondent after participating in auction

proceedings, being a highest bidder, got the sale deed in his

favour and as such, he had paid Rs.2,450/- towards sale

consideration.

Learned counsel submitted that the sale deed since was

having value of more than Rs.100/-, the same was required to be

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registered under the Registration Act, 1908 and proper stamp duty

was also required to be paid.

Learned counsel submitted that the Trial Court has

failed to consider that Section 49 of the Registration Act, 1908 did

not apply in the facts of the case, as the proviso to Section 49

only permits the unregistered document to be produced as

evidence for collateral transaction.

Learned counsel submitted that the very basis of the

suit, even for injunction, was based on sale deed in favour of the

respondent-plaintiff and as such, the said document without

having proper registration was not liable to be admitted in

evidence.

Learned counsel submitted that the Trial Court has

wrongly placed reliance on an exception carved out under sub-

section (2) of Section 17 of the Registration Act, 1908 as in the

clause-(vii), the sale deed executed in favour of the respondent

was not a grant of immovable property by the Government and on

the contrary, the respondent-plaintiff got a sale deed in his favour

after participating in the auction proceedings.

Learned counsel submitted that Rule 271 of the Rules

of 1961 provides for execution of the sale deed, after following the

procedure, as laid down in Rule 263 of the Rules of 1961 and the

said sale has to be confirmed under Rule 265.

Learned counsel submitted that as far as grant of

immovable property by the Government is concerned, the same is

covered under Rule 267 of the Rules of 1961 and where allotment

of land is made free of charge, such allotment can be termed as a

grant and since in the present case, admittedly, the respondent

has purchased the property in an auction and a proper sale deed

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was executed in his favour, such document was compulsorily

required to be registered.

Learned counsel places reliance on the judgment

passed by the Principal Seat at Jodhpur in S.B. Civil Second

Appeal No.10/2020 titled as Sikander Vs. LRs. Of Sumermal

& Ors. decided on 19.11.2020, S.B. Civil Second Appeal

No.154/2005 titled as Madan Lal Vs. LRs. Of Mangilal & Ors.

decided on 24.10.2017 and judgment passed by the Andhra

Pradesh High Court in C.R.P. No.1065/2002, dated

29.07.2003 titled as Thippareddy Obulamma and Ors. Vs.

Balu Narasimhulu and Ors.

Learned counsel, on the strength of said judgments,

submitted that a sale deed/patta which is having value of more

than Rs.100/- and if same is not registered, then it is not

admissible in evidence.

Learned counsel submitted that in the present facts of

the case, initially the document in question i.e. sale deed also did

not reflect any payment of stamp duty and as such, the Trial Court

could not have cured the defect by permitting the respondent to

pay the requisite stamp duty and then to admit the document.

Learned counsel-Mr.Aditya Kiran Mathur, appearing for

the respondent, submitted that the Trial Court has rightly passed

the order and as such, no interference is required by this Court.

Learned counsel further submitted that as per

exception carved out in sub-section (2) of Section 17 under Clause

(vii) of the Registration Act, 1908, the document sought to be

produced by the respondent was like a grant and as such, there

was no requirement of compulsory registration.

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Learned counsel for the respondent-plaintiff further

submitted that after order was passed by the Trial Court, the

respondent-plaintiff has paid the requisite stamp duty and as

such, the defect pointed out before the Trial Court of not paying

the stamp duty, has already been cured and as such, the

document produced by the respondent, during his evidence, was

required to be taken on record and such evidence/document was

admissible in evidence before the Trial Court.

Learned counsel for the respondent places reliance on a

judgment passed by this Court in the case of Nand Singh & Ors.

Vs. Mangal Singh & Ors. reported in [2013(2) DNJ

(Raj.)766].

Learned counsel, on the strength of said judgment,

submitted that if any Patta is issued under the Rajasthan

Panchayati Act and Rules made thereunder, the same is a grant of

immovable property by the Government and as such, no

registration is required under clause (vii) of sub-section (2) of

Section 17 of the Registration Act, 1908 and the same is

admissible in evidence.

Learned counsel for the respondent also submitted that

the respondent-plaintiff had not sought any relief of title or

declaration and a suit for injunction only has been filed and as

such, in the suit for injunction, title is not disputed in any manner

and only possession is to be seen then in such an eventuality, the

sale deed which is in favour of a person, can always be admitted

in evidence.

I have heard the submissions made by learned counsel

for the parties and perused the material available on record.

(6 of 10) [CW-6794/2018]

This Court finds that the Trial Court has placed reliance

on clause (vii) of sub-section (2) of Section 17 of the Registration

Act, 1908 and on the basis of said provision, the sale deed/patta

issued in favour of the respondent has been treated as grant.

This Court finds that the grant of immovable property

by the Government is not required to be registered as per

exception carved out but allotment of land of immovable property,

has to be a grant in favour of a person.

This Court finds that in the present case, the

respondent-plaintiff has participated in the auction proceedings

and after following the due process, as provided under Rules of

1961, sale deed has been executed in favour of the respondent-

plaintiff.

The execution of sale deed under Rule 271 of the Rules

of 1961 cannot be equated with a grant, as has been canvassed

by learned counsel for the respondent.

This Court finds that in the case of Sikander (supra),

the Co-ordinate Bench of this Court has interpreted the relevant

Sections of the Transfer of Property Act, 1882 and it has come to

conclusion that if a patta/lease deed is not registered in view of

the provisions of Section 54 of the Transfer of Property Act, 1882,

where it is required to be compulsorily registered, then such a

document is inadmissible in evidence under Section 49 of the

Registration Act, 1908.

This Court further finds that in the case of Madan Lal

(supra), the Co-ordinate Bench of this Court was again

considering the impact of non-registration of document, which was

required to be compulsorily registered and while referring to a

notification dated 29.04.1964, the Court has come to conclusion

(7 of 10) [CW-6794/2018]

that if any Gram Panchayat executes a sale deed or transfers the

property having worth of more than Rs.100/-, then such transfer

is required to be registered compulsorily and requisite stamp duty

is also required to be paid.

The submission of learned counsel for the respondent

that this Court in the case of Nand Singh (supra) has considered

the issuance of sale deed as a grant of immovable property and as

such, decision in the case of Nand Singh (supra) will apply in

the present facts of the case, as well.

I have carefully gone through the order passed by the

Court, in the case of Nand Singh (supra) and find that the Court

in the said case was considering the issuance of a patta by the

Gram Panchayat to a personnel falling under the Ex-Military

Category provided under Rule 267 of the Rules of 1961 by way of

negotiations and issuance of patta, was not found in Rule 266.

This Court in the case of Nand Singh (supra), on the

basis of such factual aspect came to conclusion that if any patta

was issued under Rajasthan Panchayati Raj Act and the same was

a grant and not a sale deed, then the issuance of patta by Gram

Panchyat without having public auction is a grant of immovable

property.

This Court finds that the Apex Court recently in a

judgment passed on 23.09.2022 in the case of Balram Singh Vs.

Kelo Devi in Civil Appeal No.6733/2022, has again considered

the impact of a document which is not registered and requires to

be compulsorily registered. The relevant portion of the order is

quoted as hereunder:-

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"5. We have heard the learned counsel for the respective parties at length.

At the outset, it is required to be noted that the original plaintiff instituted a suit praying for a decree of permanent injunction only, which was claimed on the basis of the agreement to sell dated 23.03.1996. However, it is required to be noted that the agreement to sell dated 23.03.1996 was an unregistered document/agreement to sell on ten rupees stamp paper. Therefore, as such, such an unregistered document/agreement to sell shall not be admissible in evidence.

6. Having conscious of the fact that the plaintiff might not succeed in getting the relief of specific performance of such agreement to sell as the same was unregistered, the plaintiff filed a suit simplicitor for permanent injunction only. It may be true that in a given case, an unregistered document can be used and/or considered for collateral purpose. However, at the same time, the plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a suit for substantive relief, namely, in the present case the relief for specific performance. Therefore, the plaintiff cannot get the relief even for permanent injunction on the basis of such an unregistered document/agreement to sell, more particularly when the defendant specifically filed the counter-claim for getting back the possession which was allowed by the learned trial Court. The plaintiff cleverly prayed for a relief of permanent injunction only and did not seek for the substantive relief of specific performance of the agreement to sell as the agreement to sell

(9 of 10) [CW-6794/2018]

was an unregistered document and therefore on such unregistered document/agreement to sell, no decree for specific performance could have been passed. The plaintiff cannot get the relief by clever drafting.

7. In view of the above and for the reasons stated above, both, the learned first appellate Court and the High Court have committed a grave error in passing a decree for permanent injunction in favour of the plaintiff as against the defendant and dismissing the counter- claim filed by the original defendant. The impugned judgment and order passed by the High Court, confirming the judgment and decree passed by the first appellate Court and the judgment and decree passed by the first appellate Court decreeing the suit for permanent injunction and dismissing the counter-claim of the defendant are unsustainable and the same deserve to be quashed and set aside and the judgment and decree passed by the learned trial Court dismissing the suit filed by the plaintiff for permanent injunction and allowing the counter-claim of the defendant deserves to be restored.

8. Accordingly, the present appeal is allowed.

The impugned judgment and order dated
10.12.2019       passed         by     the       High           Court
dismissing     Second         Appeal       No.      330/2001,

confirming the judgment and decree passed by the first appellate Court and the judgment and decree dated 29.01.2001 passed by the first appellate Court decreeing the suit for permanent injunction in favour of the original

(10 of 10) [CW-6794/2018]

plaintiff and dismissing the counter-claim of the defendant are hereby quashed and set aside. Consequently, the suit instituted by the original plaintiff for permanent injunction on the basis of an unregistered agreement to sell is hereby dismissed and the counter-claim filed by the original defendant is hereby allowed. The judgment and decree passed by the learned trial Court dismissing the suit and allowing the counter-claim is hereby restored. There shall be no order as to costs."

The submission of learned counsel for the respondent-

plaintiff that the requisite stamp duty has been paid by the

respondent, after passing of the impugned order and as such, the

defect, which was pointed out by the petitioner, has already been

cured, suffice it to say by this Court that as far as payment of

stamp duty is concerned, the respondent-plaintiff might have

made compliance, however, the fact remains that the document

has not been registered and same was required to be registered

compulsorily as per the provisions of the Registration Act, 1908.

This Court accordingly, finds that the impugned order

dated 06.10.2017 has been passed without appreciating the

correct position of law and accordingly, the same is quashed and