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P.K. Jaiswal, J.
Champat Giri v. Ramdayal and another
First Appeal No.810 of 2000 (Jabalpur) : against the judgment and
decree passed by I Additional District Judge, Betul, in
Civil Suit No. 71-A of 1998; Decided on 16.6.2009.
As per section 36 of the Indian Stamp Act, 1899 once a document is admitted in evidence, it is not permissible to the Court whether it is a Court of Appeal or trial Court to reject it on the ground that it has not been duly stamped. Here, in the present case, agreement to sale (Ex.P-l) has been marked as an exhibit in a case and used by the parties in examination and cross-examination of the witnesses then section 36 of the Stamps Act comes into operation and it cannot be excluded. When an unstamped document has been marked as an exhibit and admitted in evidence under the signature of the Court, it cannot be said that the document has been inadvertently admitted. At the time of admission of Ex.P-1 no objection was raised by the appellant in the trial Court regarding admissibility of the document, its admissibility cannot be questioned at any subsequent stage of proceeding or before the appellate Court. Section 36 of the Indian Stamp Act is quite rigorous in its application and when a document has been admitted in evidence, it can even form the foundation for the decision in the suit and no Court either original, revisional or appellate can call into question of admissibility of the document on the ground of it being unstamped or not duly stamped.
In the present case, it is also to bear in mind that the instrument (Ex.P-1) was laid in and after examining the witnesses as to its execution, learned Judge gave its judgment acting upon it. It must be held to be admission in execution within the meaning of section 36 and admission cannot be questioned in appeal. 1969 JLJ 641 and 1996(2) Vidhi Bhasvar 33 relied on. AIR 1961 SC 1655 followed. 1997(2) MPLJ 27, AIR 1978 SC 1393 and 2009(1) MPWN 29 distinguished. [Paras 19 & 20
(2) Transfer of Property Act, 1882 -- S.53A -- agreement to sell n all conditions fulfiled -- transferee in possession -- he can protect his possession -- such agreement does not require registration.
The necessary conditions for application under section 53A of Transfer of Property Act are fulfiled then in spite of defect of registration in the deed, the appellant-transferor shall be debarred from enforcing against the transferee any right in respect of the suit property of which the transferee is in possession. Under section 17 of the Registration Act, is only a contract of final sale that requires to be registered. A contract to sell does not require to be registered. [Para 23
(3) Specific Relief Act, 1963 -- S.22 -- purchaser proving his case -transfer also admitted by vendor -- decree rightly granted.
From the perusal of pleading of the parties and admission made by the appellant, I am of the considered view that the plaintiff proves his case for grant of a decree of specific performance of contract. The discretion judicially exercised by the trial Court is correct and rightly granted a decree of specific performance of contract in favour of respondent-plaintiff. After examining all the circumstances as required for granting of a decree of specific performance of contract, it cannot be said that the trial Court has not applied its mind properly. [Para 25
¼1½ LVkai vf/kfu;e] 1899 && /kkjk 36 rFkk 35 && nLrkost lk{; esa xzg.k fd;k x;k rFkk izn"kZ dh Hkk¡fr fpg~ukafdr fd;k x;k && rRi‘pkr~ blds LVkafir u gksus ;k de LVkafir gksus ij vkifRrRr u rks vihy esa vkSj u iqujh{k.k esa mBkbZ tk ldrh A Hkkjrh; LVkai vf/kfu;e] 1899 dh /kkjk 36 ds vuqlkj] tc ,d ckj nLrkost lk{; esa xzg.k dj fy;k tkrk gS] U;k;ky; dks] pkgs ;g vihy U;k;ky; gks ;k fopkj.k U;k;ky;] bl vk/kkj ij bls ukeatwj djus dh vuqKk ugha gS fd bls lE;d~ "i ls LVkafir ugha fd;k x;k gSA ;gk¡] izLrqr ekeys esa] fodz; dk djkj ¼izn"kZ ih&1½ ekeys esa izn"kZ dh Hkk¡fr fpg~ukafdr fd;k x;k gS rFkk i{kdkjksa }kjk ijh{kk esa rFkk lkf{k;ksa dh izfrijh{kk esa mldk iz;ksx fd;k x;k gS rc LVkai vf/kfu;e dh /kkjk 36 izorZu esa vkrh gS rFkk bldk viotZu ugha fd;k tk ldrkA tc vLVkafir nLrkost izn"kZ dh Hkk¡fr fpg~ukafdr fd;k tkrk gS rFkk U;k;ky; ds gLrk{kj ds v/khu lk{; es xzg.k fd;k tkrk gS] ;g ugha dgk tk ldrk fd nLrkost vuo/kkurk ls xzg.k fd;k x;k gS A izn"kZ ih &1 ds xzg.k ds le; nLrkost dh xzkg~;rk ds ckjs es vihykFkhZ }kjk fopkj.k U;k;ky; es dksbZ essa dksbZ vkifRrRr ugha mBkbZ xbZ] bldh xzkg~;rk dk;Zokgh ds fdlh i‘pkr~orhZ izdze esa ;k vihy U;k;ky; ds le{k iz‘ukxr ugha dh tk ldrh A Hkkjrh; LVkai vf/kfu;e dh /kkjk 36 vius mi;kstu es iw.kZ :i ls dBksj gS rFkk tc nLrkost lk{; esa xzg.k fd;k x;k gS ;g okn es fofu‘p; ds fy, vk/kkj Hkh gks ldrk gS rFkk dksbZ U;k;ky; pkgs vkjafHkd] iqujh{k.k ;k vihy nLrkost dh xzkg~;rk dks blds vLVkafir gksus ;k lE;d~ :i ls LVkafir ugha gksus ds vk/kkj ij iz‘uxr ugha dj ldrk A izLrqr ekeys esa] ;g Hkh /;ku es j[kuk gS fd fy[kr ¼izn"kZ ih &1½ is"k fd;k x;k rFkk blds fu"iknu fo"k;d lkf{k;ksa dh ijh{kk djus ds i‘pkr~] fo}ku U;k;k/kh’k us bl ij dkjZokbZ djrs gq, fu.kZ; fn;kA bls /kkjk 36 ds vFkZ es fu"iknu esa xzg.k gksuk vfHkfu/kkZfjr fd;k tkuk pkfg,] ;g xzg.k dks vihy esa iz‘uxr ugha fd;k tk ldrkA 1969 ts ,y ts 641 rFkk 1996¼2½ fof/k HkkLoj 33 voyafcr A , vkb vkj 1961 ,l lh 1665 vuqlfjrA 1997¼2½ ,e ih ,y ts 27] , vkb vkj 1978 ,l lh 1393 rFkk 2009¼1½ e-iz- ohDyh uksV~l 29 izHksfnrA ¼iSjk 19 ,ao 20½ ¼2½ laifRr varj.k vf/kfu;e] 1882 && /kkjk 53 d && fodz; dk djkj && lHkh "krsZ iw.kZ && varfjrh dk dCtk && og vius dCts dk laj{k.k dj ldrk gSA && ,slk djkj jftLVªhd`r gksuk vko‘;d ughaA laifRr varj.k vf/kfu;e dh /kkjk 53d ds v/khu vkonsu ds fy, vko‘;d "krsZ iwjh dh xbZ gSa rc foys[k es jftLVªhdj.k dh =qfV gksus ds ckotwn] vihykFkhZ&varjd dks varfjrh ds fo#) okn laifRr ds] ftl ij varfjrh dk dCtk gS] fo"k; esa fdlh vf/kdkj dk izorZu djus ls fooftZr fd;k tk,xkA jftLVªhdj.k vf/kfu;e dh /kkjk 17 ds v/khu] ;g ek= vafre fodz; dh lafonk gS ftldks jftLVªhd`r fd, tkus dh vko‘;drk gksrh gSA fodz; dh lafonk dks jftLVªhd`r fd, tkus dh vko‘;drk ugha gksrh A ¼3½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 && /kkjk 22 && dzsrk us viuk i{kdFku lkfcr fd;k && fodzsrk }kjk Hkh varj.k Lohdkj fd;k x;k && fMdzh U;k;kuqlkj iznku dh xbZA i{kdkjksa ds vfHkpu rFkk vihykFkhZ }kjk dh xbZ Lohd`fr ds ifj"khyu ls] esjh ;g lqfopkfjr jk; gSa fd oknh lafonk us fofufnZ"V ikyu dh fMdzh ds fy, viuk i{kdFku lkfcr dj fn;k gS A fopkj.k U;k;ky; }kjk U;kf;d :i ls foosdkf/kdkj dk iz;ksx lgh gS rFkk izR;FkhZ&oknh ds i{k esa lafonk ds fofufnZ"V ikyu dh fMdzh U;k;kuqlkj eatwj dh gSA lHkh ifjfLFkfr;ksa dh] tks lafonk ds fofufnZ"V ikyu dh fMdzh iznku djus ds fy, vko‘;d gS] ijh{k.k djus ds i‘pkr~] ;g ugha dgk ldrk fd U;k;ky; us mfpr izdkj ls euksfu;ksx ugha fd;k gSA ¼iSjk 25½
1. This first appeal has been filed by the defendant against the judgment and decree dated 7.4.2000 passed by First Additional District Judge, Baitul in Civil Suit No.71-A/1998, whereby the trial Court decreed the suit for specific performance of contract and permanent injunction, filed by the plaintiff-respondent.
2. Brief facts of the case are that the respondent-plaintiff filed a suit for specific performance of contract and permanent injunction on the ground that he entered into an agreement on 14.6.1997 (Ex.P-l) with the appellant for sale of an area of 1.619 hectare plus 'Aa' portion of the well and way out of total area of 2.428 hectare of survey No.266/1, Patwari Halka No.52 of village Jamathi of Tahsil Bhenshdehi District Baitul for a consideration of Rs.2 lacs. An agreement was reduced in writing on a stamp paper of Rs.50/-. At the time of execution of the agreement entire sale consideration of Rs.2 lacs was paid to the appellant. It is also alleged that at the time of execution of agreement appellant-defendant intimated that he had entered into an agreement for the purchase of a Tractor and in case he failed to pay the amount, said agreement will come to an end, therefore, he is in need of money. Hence, he entered into an agreement with the respondent.
3. As per the agreement possession of the suit land was handed over to the respondent and since then he is in possession of the land in question. It is also alleged that the appellant immediately after receipt of Rs.2 lacs from the respondent purchased a Tractor bearing registration No. MTR-3414. As per terms of the agreement, a sale-deed has to be executed by November, 1997. Respondent-plaintiff number of times requested the appellant to execute a sale-deed, but he gave assurance that land is already in possession of the respondent and at any time he will execute the sale-deed. When he failed to execute the sale-deed, plaintiff-respondent alongwith one Radheshyam Patel, Sarpanch of village Hidli had gone to the appellant's place and requested to execute the sale-deed, but no saledeed was executed. Thereafter, respondent vide registered notice dated 29.11.1997 (Ex.P-4) asked the appellant to execute the sale-deed within a period of fifteen days from the date of receipt of notice, failing which he will take appropriate legal action in accordance with law. On 29.7.1998 again a notice was issued to the appellant vide Ex.P-6. Thereafter, on 5.10.1998 a dispute arose between the appellant and respondent in respect of possession of the suit land, respondent lodged the report at Police Station Aathner on 5.10.1998 vide Ex.P-7. Matter was amicably settled between the parties and a compromise was reduced in writing vide Ex.P-10 on 11.10.1998 in presence of three attesting witnesses by which appellant admitted that he will not dispossess the respondent from the suit land. The appellant gave his reply to the second notice vide Ex.P-ll on 10.8.1998, denying all the allegations made in the notice. The suit was filed on 25.8.1998.
4. The appellant-defendant filed its written statement on 16.8.1999 and denied the averments made in the plaint. In para 4 of the written statement it is contended that respondent-plaintiff had taken the land on lease @ 10,000/- per annum and executed an agreement (Thekanama) and possession was also delivered to him, but in lieu of said agreement he prepared an agreement for sale dated 14.6.1997 and fraudulently took the signature on the agreement. It is also denied that appellant-defendant executed any agreement for purchase of Tractor bearing No. MTR-3414. Appellant denied the receipt of RS.2lacs from respondent. In para 19 it is alleged that the suit property which is part of survey No.266/1, situated at village Jamthi is jointly owned by the appellant and is undivided Hindu family property. Family of the defendant consisting of his wife, sons and daughters and they all are having share over the suit property and present appellant had no right
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