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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.13301 OF 2017

Shetkari Sahakari Sangh Limited

PETITIONER

At Pachora, Bhadgaon Road, Pachora,

District – Jalgaon

Through its Manager,

Prabhakar s/o Pandurang Bhavsar

Age – 63 years, Occ – Service

At Post – Bhadgaon, Road,

Taluka – Pachora, District – Jalgaon

VERSUS

Ramesh @ Ramchandra More (Gurav)

RESPONDENT

Age – 62 years, Occ – Pensioner,

R/o Krushi Udyog Colony,

Bhadgaon Road, Pachora,

Taluka – Pachora, District – Jalgaon

.......

Mr. B. R. Warma, Advocate for the petitioner

Mr. P. S. Shendurnikar, Advocate for the respondent

.......

[CORAM : NITIN B. SURYAWANSHI, J.]

RESERVED ON : 8

^th SEPTEMBER, 2022

PRONOUNCED ON : 22

^nd SEPTEMBER, 2022

JUDGMENT :

1.

This petition, filed under Article 226 and 227 of the

Constitution of India, challenges order dated 6^th March, 2017

passed by the learned Civil Judge, Junior Division, Pachora

below Exhibit-275 in Regular Civil Suit 6 of 2004.

2.

Facts, in brief, are that, the petitioner is the original

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defendant in the suit filed by the respondent-plaintiff for

injunction in respect of the suit property being survey No. 6

admeasuring 4 Acre 18 Guntha, situated at Pachora.

3.

The plaintiff claimed that the suit property was owned by

Handu Gurav and Bapu Gurav and he is the grandson of Bapu

Gurav. According to him, the defendant has committed breach

of agreement dated 3^rd July, 1896 and the defendant has no

right to construct on the suit property. Hence, he prayed that

the suit property be given in possession of the plaintiff by

demolishing the buildings constructed on the same. In the

alternative, he has prayed that 5 anna 4 ps share of the

plaintiff in the suit property be handed over to him, by

demolishing the buildings constructed on the same.

4.

In the suit, the plaintiff led his evidence. Thereafter, the

defendant also led evidence of his witness No.1 (DW-1). In the

said evidence agreement dated 25^th May, 2004 was exhibited at

Exhibit-207 and the agreement dated 13^th May, 2003 was

exhibited at Exhibit-208. This witness was cross-examined by

the plaintiff. Thereafter, the defendant filed evidence affidavit of

witness No.2 (DW-2). After filing of the said affidavit, the

plaintiff filed an application Exhibit-275 contending that since

the defendant is relying on two agreements (Exhibits-207 and

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208), he is liable to pay stamp duty on the same. Both these

agreements are executed on insufficient stamp duty and,

therefore, both the agreements be impounded and they be

forwarded to Sub Registrar, Pachora for valuation and deficit

stamp duty be recovered from the defendant and till then both

these agreements cannot be read in evidence. He, therefore,

prayed that Exhibits-207 and 208 be impounded and further

action be initiated. The said application was resisted by the

defendant, claiming that the said objection ought to have been

raised at the time of exhibiting the agreements. Since this

objection is raised at belated stage, it cannot be considered

now. The agreements were executed between the defendant

and predecessor of the plaintiff, therefore, the plaintiff has no

right to take objection to the same.

5.

The Trial Court has allowed the application Exhibit-275

and impounded agreements Exhibits-207 and 208 and

forwarded the same to the Collector for adjudication of

appropriate stamp duty and penalty. This order is impugned in

the present petition.

6.

Heard learned advocate for the petitioner and learned

advocate for the respondent.

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7.

Learned advocate for the petitioner, by placing reliance on

section 35 of the Maharashtra Stamp Act (for short “the said

Act”), submits that since both the agreements are already

exhibited, they cannot b