HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Writ Petition No.16004/2017

Satish Kumar S/o Mahadev Prasad Ji, aged 58 years, R/o Kundal

Tehsil Dausa, District Dausa Raj.

----Petitioner-Defendant

Versus

1.

Smt. Sarbati Devi W/o Damodar Ji (Since Deceased).

1/1. Gaurishankar Dattak S/o Shri Damodar, R/o House

No. 1223, Baba Harishchandra Marg, Teetarwadiyon Ki

Gali, Chandpole Bazar, Jaipur

2.

Smt. Mohani Devi W/o Pannalalji, R/o House No.1223,

Baba Harishchandra Marg, Teetarwadiyon Ki Gali,

Topkhana Desh, Jaipur City (Died During Dawa)

2/1.

Pannalal S/o Jagannath R/o 1223, Baba Harishchandra

Marg, Chandpole Bazar, Jaipur

2/2.

Omprakash Sharma S/o Pannalal Sharma

2/3.

Shimla Devi W/o Omprakash Sharma D/o Panna Lal

Sharma, R/o 1135 Uniyara Rao Ji Ka Rasta, Chandpole

Bazar, Jaipur

2/4.

Mithlesh Kasliwal W/o Ramesh Chand Kasliwal D/o

Pannalal, R/o A/12, Subhash Nagar, Jaipur

----Respondents/Plaintiffs.

3.

Shankar Lal S/o Kanhiyalal Patel, R/o Khan Bhankri, Tehsil

Dausa District Dausa

----Respondents/Defendant

For Petitioner(s)

:

Mr.Amol Vyas, adv.

For Respondent(s)

:

Mr.Manish Sharma, Adv. with

Mr.Lakshya Pareek, Adv.

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

Order

12/07/2022

This writ petition has been filed by the petitioner-

defendant challenging the order dated 18.08.2017, whereby

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[CW-16004/2017]

objection raised by the petitioner to exhibit agreement to

sell/registered sale deed, on account of non-registration and

insufficient stamp duty paid by the respondent has been rejected

by the Court.

Learned counsel for the petitioner submitted that the

respondents-plaintiffs had initially filed a suit for specific

performance on the basis of agreement to sell dated 24.12.1996

and later on, the said suit was amended and suit for specific

performance, injunction and cancellation of sale deed was filed

before the Civil Court.

Learned counsel submitted that, at the time of

recording of evidence of the plaintiffs, when ‘agreement to sell’

was to be exhibited, objection was raised by the petitioner that

the said document was not registered and further stamp duty was

also not paid and as such, the Court below could not have

permitted the said document to be taken on record by marking

“exhibit” on it.

Learned counsel for the petitioner Mr.Amol Vyas has

made following submissions:-

(i) That the plaintiffs though had initially filed a suit for

specific performance, however, the said suit was amended and

decree for injunction and declaring the sale deed as null and void,

was prayed and as such, document was required to be registered

as per Section 49 of the Registration Act, 1908.

(ii) The document in question was not in fact ‘agreement to

sell’ but the same was in fact a sale, as the entire sale

consideration of Rs.40,000/- was paid and further possession of

the property was also given. The nomenclature of ‘agreement to

sell’ in fact conferred all the rights in favour of the party by

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[CW-16004/2017]

transferring the possession and paying consideration and the

stamp duty required to be paid on the sale deed, was not paid and

as such, due to insufficient stamp being paid on the document, the

same could not be taken into evidence.

(iii) The Court below, if at all, had to decide as whether the

document in question was agreement to sell or registered sale

deed, the said issue was to be examined by the District Collector

(Stamps) and he alone could have declared the actual payment of

stamp on the said document. The nature of document cannot be

decided by the Court while permitting such document to be taken

in evidence while exhibiting it and the power given to the

Collector, has been usurped by the Court below by passing the

impugned order.

(iv) The nature of document i.e. agreement to sell was not in the

form of agreement to sell simpli