Rajasthan High Court - Jodhpur

Khema vs Shri Vala Ram on 4 November, 2023

Bench: Nupur Bhati

[2023:RJ-JD:36737]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Civil Writ Petition No. 13819/2021

Khema S/o Shri Hakaraji Bheel, Aged About 40 Years, Resident
Of Lakadwas, Tehsil Girwa, District Udaipur (Rajasthan).
                                                                    ----Petitioner
                                     Versus
Shri Vala Ram S/o Shri Kana Ram Meena, Resident Of Banjara
Basti, Hiran Magari, Sector-5, Udaipur (Rajasthan).
                                                                  ----Respondent


For Petitioner(s)          :     Mr Shambhoo Singh Rathore
For Respondent(s)          :     Mr Rajesh Shah



               HON'BLE DR. JUSTICE NUPUR BHATI

                                 JUDGMENT

Reserved on:-        30/10/2023
Pronounced on:- 4/11/2023

1 Though the matter has been listed in the 'fresh with stay

Category', however, the matter is being heard today itself with the

consent of the counsel for both the parties.

2. The instant writ petition has been preferred under Article 226

and 227 of the Constitution of India with the following prayers:-

"(A) The impugned orders dated 04.09.2021 (Ann.6) passed by the learned Additional District Judge No.5, Udaipur in Civil Suit No. 06/2014 may kindly be quashed and set aside.

(B) The applications filed by petitioner-plaintiff under O.16 R.6 read with Section 151 of C.P.C in Civil Original Suit No. 6/2014 may kindly be allowed.

(C) Any other appropriate order, which deemed fit in the facts and circumstances of the case may kindly be passed in favour of the petitioner- plaintiff."

[2023:RJ-JD:36737] (2 of 11) [CW-13819/2021]

3. Brief facts of the case are that the petitioner-plaintiff filed a

suit for cancellation of sale deed dated 19.08.2013 and Permanent

Injunction against respondent-defendant in January 2014 before

the learned Additional District Judge No.5, Udaipur wherein it was

contended that agricultural land of different khasra numbers was

in joint khatedari of petitioner-plaintiff and others. Respondent-

Defendant made proposal of purchasing 1/5th share of the

petitioner-plaintiff from the land in question by oral conversation

and thereafter decided to get registration of the same and the

total consideration amount decided was Rupees 2,50,000/- to be

paid to the petitioner-plaintiff.

4. Thereafter the respondent-defendant contacted petitioner-

plaintiff on 17.08.2013 to remain present before the Registrar

office for getting done the registration of the sale deed on

19.08.2013. The petitioner signed the sale deed which was also

registered. However the consideration amount was supposed to be

paid at the time of registration but the respondent-defendant gave

only 1,00,000/- in cash and the rest of the amount was not given

to the petitioner. However, the land was sold to One Mangi Lal

through agreement dated 30.03.2013 (Annexure-7) with the

consideration of Rs 5,00,000/- wherein agreement was executed

and the possession was handed over by the petitioner-plaintiff to

Mangi Lal.

5. Furthermore Mangi Lal had filed suit for specific performance

of the agreement dated 30.03.2013 before District Judge, Udaipur

and the suit was decreed vide judgement and decree dated

[2023:RJ-JD:36737] (3 of 11) [CW-13819/2021]

13.02.2014 and in compliance of the above mentioned decree the

sale deed has been executed by the order of court on 26.10.2015

(Annexure-8) in favour of Mangi Lal.

6. Meanwhile the respondent-defendant got executed the sale

deed on 19.08.2013 which was registered on 22.08.2013

(Annexure-11) in which wrong khasra number 1839 has been

mentioned in place of 1838 and the cheque mentioned in the

registered sale deed has not been handed over to the petitioner-

plaintiff.

7. After execution of the sale deed dated 26.10.2015 in favour

od Mangi Lal, the name of Mangilal was entered in the revenue

record through mutation dated 04.05.2016. (Annexure- 9).

Moreover, the petitioner submitted an application before Gram

Panchayat Lakadwas stating therein that the respondent-

defendant Vala Ram got registered the land in his favour by

committing fraud. Thus the gram panchayat Lakadwas on

31.08.2013 in a meeting held that in respect of khasra No. 1836,

1837 and 1839 measuring 0.7150 hectare the mutation may not

be opened in name of the respondent-defendant and also stated

that the land in question is currently in possession of Mangi Lal

and all the above statements were drawn in a certificate dated

30.12.2013. (Annexure- 10).

8. Furthermore, the petitioner came to know that the

Respondent-defendant got registration of the land in question as

mentioned in paragraph no.3 of the plaint (Annexure-1) and in the

suit the petitioner prayed to cancel the sale deed dated

[2023:RJ-JD:36737] (4 of 11) [CW-13819/2021]

19.08.2013. The petitioner also lodged an FIR on 04.09.2013

against the respondent-defendant wherein negative final report

was passed and however, a protest petition was filed on

28.04.2014 by the petitioner wherein order was passed on

15.03.2016 by Magistrate, Udaipur city (South) (Annexure-3).

Furthermore, the respondent-defendant filed the written

statement (Annexure-2) on 03.01.2015 wherein he denied the

averments of the plaint.

9. During the pendency of the suit the petitioner- plaintiff filed

an application under Order 16 Rule 6 CPC on 10.11.2017

(Annexure-4) for summoning the agreement dated 30.03.2013

from Mangi Lal. Thereafter the respondent-defendant filed a reply

(Annexure-5) to the application on 22.11.2018 and denied the

averments and stated that with the connivance of Mangi Lal the

alleged agreement has been prepared.

10. Thereafter the Court below after hearing both the parties

upon the application filed under Order 16 Rule 6 read with Section

151 CPC 1908 dismissed the same vide order dated 04.09.2021

(Annexure-6) observing that the document which is sought to be

summoned from Mangi Lal is an unregistered document and the

present suit is not a suit for specific performance of contract but a

suit for cancellation of the sale deed and thus the unregistered

document is not admissible in evidence.

11. Aggrieved by the order dated 04.09.2021 passed by

Additional District Judge, No. 5 Udaipur the petitioner preferred

this writ petition.

[2023:RJ-JD:36737] (5 of 11) [CW-13819/2021]

12. Learned counsel of the petitioner submitted that the order

passed by the Court below dated 04.09.2021 is against the facts

on record and contrary to the provisions of law as the learned

Court below while dismissing the application has not considered

the provisions of law under order 16 Rule 6 of CPC 1908 that "any

person may be summoned to produce a document, without being

summoned to give evidence; and any person summoned merely

to produce a document shall be deemed to have complied with the

summons if he causes such document to be produced instead of

attending personally to produce the same" and in the present case

it is crucial to summon the agreement dated 30.03.2013 which is

in possession of Mangilal and moreover the photocopy of the

agreement dated 30.03.2013 was already produced in the other

suit. Therefore it is necessary to summon the documents along

with the witness to clarify the facts regarding the disputed land for

which the respondent-defendant has got the sale deed registered

by cheating the petitioner.

13. Learned counsel for the petitioner also submitted that the

respondent-defendant executed the sale deed by mentioning the

wrong khasra number which can only be examined by summoning

the document which is sought to be produced and moreover a

criminal case is also pending against the respondent-defendant.

Thus the document in question is relevant to be summoned and

produced in the court for deciding the controversy and thus the

application deserves to be allowed.

[2023:RJ-JD:36737] (6 of 11) [CW-13819/2021]

14. Learned counsel for the petitioner further submitted that the

learned trial court arrived at the conclusion that the document in

question is unregistered which is inadmissible in evidence and

therefore cannot be summoned. He also submitted that the

document has been produced in suit for specific performance filed

by Mangi Lal and on the basis of such document the suit has been

decreed and land in question has been registered by the court in

favour of Mangi Lal. The reason given by the court below is not

sustainable in dismissing the application under Order 16 Rule 6 of

Civil procedure Code 1908. Moreover no prejudice and injury will

be caused to the respondent-defendant if the application under

Order 16 Rule 6 CPC is allowed.

In support of his submissions, learned counsel for the petitioner

placed reliance on the judgment passed by the Hon'ble Apex Court

in the case of M/S K.B. Saha And Sons Pvt. Ltd vs M/S

Development Consultant Ltd reported in (2008) 8 SCC 564;

15. Learned counsel for the respondent submitted that the

statements of petitioner that the petitioner-plaintiff sold the land

in question on 30.03.2013 vide an agreement with Mangilal even

before the sale deed dated 19.08.2013 in favour of the

respondent-defendant is baseless as the petitioner has colluded

with Mangilal and made the fake agreement to sale dated

30.03.2013 in back date in favour of Mangi Lal in order to make

the sale deed executed with the respondent-defendant ineffective

therefore there is no relevancy of summoning the sale deed dated

[2023:RJ-JD:36737] (7 of 11) [CW-13819/2021]

30.03.2013 and thus it ought not to be summoned and the

application under Order 16 Rule 6 ought to be dismissed.

In support of his submissions, learned counsel for the respondent

placed reliance on the judgment passed by the Hon'ble Apex Court

in the case of Suraj Lamp & Industries Pvt. Ltd Vs. State of

Haryana & Anr. reported in 2011 AIR SCW 6385; He further

placed reliance on the judgment passed by this Hon'ble Court in

the case of Prem Bai vs Khurshid Bano And Ors reported in

2014(3) WLC(Raj.)221.

16. Heard learned counsel for the parties; perused the material

available on record and the judgments cited at the Bar.

17. This Court observes that it is contended by the parties that

there are two transactions made for the same property in

question. The petitioner has filed a suit for cancellation of the sale

deed dated 19.08.2013 on the ground that the respondent by

fraudulent means got the said sale deed dated 19.08.2013

executed in his favour and the petitioner preferred an application

under Order 16 Rule 6 CPC for summoning of the agreement to

sale dated 30.03.2013 in order to show that the respondent has

fraudulently created the sale deed dated 19.08.2013 as an

agreement for the same property in question has already been

done on 30.03.2013 with Mangi lal then there was no occasion for

the petitioner to execute sale deed dated 19.08.2013 in favour of

the respondent.

18. This Court further observes that Section 17 of the

Registration Act 1908 deals with documents of which registration

[2023:RJ-JD:36737] (8 of 11) [CW-13819/2021]

is compulsory and thus in the present case, the document which

the petitioner seeks to produce under Order 16 Rule 6 CPC is not

registered and is thus inadmissible as an evidence. Section 17 of

the Registration Act 1908 is reproduced here as under:-

"17. Documents of which registration is compulsory.-- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--

(a) instruments of gift of immovable property;

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

(c) 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; and

(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; [(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the [State Government] may, by order published in the 3 [Official Gazette], exempt from the operation of this sub- section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.

[(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 (48 of 2001) and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.] (2) Nothing in clauses (b) and (c) of sub-section (1) applies to--

[2023:RJ-JD:36737] (9 of 11) [CW-13819/2021]

(i) any composition deed; or

(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or

(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or

(iv) any endorsement upon or transfer of any debenture issued by any such Company; or

(v) [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or

(vi) any decree or order of a Court 2 [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or

(vii) any grant of immovable property by 3 [Government]; or

(viii) any instrument of partition made by a Revenue- Officer; or

(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or

(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or [(xa) any order made under the Charitable Endowments Act, 1890 (6 of 1890), vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or] (xi) any endorsement on a mortgage- deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or (xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer. [Explanation.--A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document

[2023:RJ-JD:36737] (10 of 11) [CW-13819/2021]

contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered."

19. This Court also observes that Section 49 of the Registration

Act 1908 deals with the effect of non-registration of documents

required to be registered and the proviso says that an

unregistered document affecting immovable property and required

by this Act or Transfer of Property Act 1882 to be registered may

be received as evidence of a contract in a suit for specific

performance or as evidence of any collateral transaction not

required to be effected by registered instrument.

Section 49 of the Registration Act 1908 is reproduced here as

under:

"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--

(a) affect any immovable property comprised therein, or

(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.]"

[2023:RJ-JD:36737] (11 of 11) [CW-13819/2021]

20. This Court further observes that Section 49 of the Act of

1908 makes it clear that a document which is compulsorily

registrable, if not registered, will not affect the immovable

property comprised therein in any manner. It will also not be

received as evidence of any transaction affecting such property.

Thus it is held that the agreement to sale dated 30.03.2013 being

an unregistered document cannot be said to be admissible in

evidence as the provisions laid down in Section 49 of the Act of

1908 clearly states that no unregistered document shall be

received as evidence of any transaction affecting such property or

conferring such power unless it has been registered and

admittedly the agreement to sale dated 30.03.2013 for the

immovable property in question is an unregistered document.

21. In view of the discussion made hereinabove, no interference

is called for in the order dated 04.09.2021 (Annexure-6), passed

by the learned Additional District Judge No.5, Udaipur in Civil Suit

No.06/2014 and thus, the instant writ petition, being devoid of

any merit, stands dismissed.