Sanjeev Prakash Sharma, J.

1. By way of this writ petition, the petitioner assails the order dated 05/08/2008 passed by the learned trial court whereby the document Exhibit-1 produced during evidence has been rejected with direction to remove from the list of exhibits, holding the same to be inadmissible in evidence.

2. Learned counsel appearing for the plaintiff-petitioner submits that an agreement was executed on 20/03/2004 between the plaintiff-petitioner and the defendants-respondents for sale of land of Khasra No. 3424 and 4888 for a sum of Rs. 85,000/- on a stamp paper of Rs. 100/- and the same was duly attested. It was agreed that the sale deed would be registered within an year and with the condition that in case the sale deed is not exhibited and registered, the defendants-respondents shall pay to the plaintiff-petitioner a sum of Rs. 1,70,000/-. An amount of Rs. 60,000/- was paid and the remaining amount of Rs. 25,000/- was to be paid by 26/03/2004. The land was however not sold to defendants-respondents no. 3 & 4 and thus, the plaintiff-petitioner filed a suit seeking decree of specific performance of contract and for declaring the sale deed dated 16/09/2004 as void and further to restrain the defendants-respondents from disturbing peaceful possession of the plaintiff-petitioner on the land which was handed over to him. It was further prayed for granting a decree of specific performance of contract.

3. By the order impugned, the learned trial court held that the document dated 20/03/2004 was, in-fact, a sale and was written on a deficit stamp duty of Rs. 1,01,750/- and therefore, could not be read in evidence as Exhibit-1.

4. Learned counsel for the plaintiff-petitioner submits that the learned trial court has fallen in error in holding the document to be inadmissible in evidence. As per proviso to Section 49 of the Registration Act, 1908, any unregistered sale deed was admissible in evidence in a suit for specific performance of contract. Learned counsel further submits that in terms of Section 35 and 36 of the Indian Stamps Act, 1899, the Stamps Act is fiscal measure. He relied on the law laid down by the Supreme Court in S. Kaladevi Vs. R. Somasundaram and ors.: AIR 2010 (SC) 1654 and Indralal & Anr. Vs. Saligram & Anr.: (2011) 2 RLW (J) 1007 to submit that at best the document could be impounded with directions of payment of penalty as provided under Section 39 or the duty as provided under Section 41 of the Rajasthan Stamps Act, 1998.

5. Per-contra, learned counsel appearing for the defendants-respondents submits that in view of Section 35 of the Indian Stamps Act, 1899, since the document was not duly stamped, it could not be admissible in evidence and would also not be admissible for collateral purpose. He relied on the judgment in Avinash Kumar Chauhan Vs. Vijay Krishna Mishra: 2009 DNJ (SC) 364 to support the order passed by the learned trial court. Learned counsel also relied on the order passed by coordinate Bench of this Court in Girdhari and others Vs. Kalyan Prasad and others (SB Civil Writ Petition No. 9601/2010), decided on 25/10/2018.

6. Heard the submissions advanced by learned counsel for both the parties.

7. The plaintiff-petitioner had filed a suit for specific performance of an agreement and cancellation of the subsequent sale deed. In terms of the document (agreement), the plaintiff-petitioner had admittedly paid a sum of Rs. 60,000/- and has also entered into possession while the remaining amount of Rs. 25,000/- was to be paid and the sale deed was to be registered which the defendants-respondents had refused and the suit has been file for seeking such a prayer. In terms of Section 53-A of the Transfer of Property Act, 1882, the documents containing fact of transferring of immovable property and having given possession thereto, is necessarily required to be registered under Section 17 of the Registration Act, 1908. However, Section 49 proviso of the Registration Act, 1908 makes a departure