HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Writ Petition No. 1013/2011

1.

Dulli Ram S/o Dev Chand

2.

Ram Swaroop S/o Mulli Ram

3.

Niranjan S/o Mulli Ram

4.

Sarbati W/o Ram Lal,

All B/c Mali, Panchna Colony, Karauli

5.

Tursa W/o Roop Chand B/c Mali, Pancha Colony, Karauli

----Defendants / Petitioners

Versus

1.

Ghasida S/o Kisna, B/c Koli, Karauli, Tehsil and Distt.

Karauli

..Plaintiff / Non Petitioner

2.

Roopa Bai W/o Kalyan B/c Mali, R/o Agola, Tehsil And

District Karauli.

3.

The Tehsildar Land Holder and Sub Registrar, Tehsil And

Distt. Karauli

4.

Additional District And Session Judge (F.T.) No. 1, Karauli

5.

Katori W/o Prabhu B/c Mali, R/o Agola, Karauli, Tehsil And

Distt. Karauli

----Proforma Respondents

For Petitioner(s)

:

Mr. JP Gupta, Advocate

For Respondent(s)

:

Mr. Hari Krishna Sharma, Advocate

HON'BLE MR. JUSTICE PRAKASH GUPTA

Order

Date of Order

::

28/05/2021

This writ petition has been filed by the defendants-

petitioners (for short, 'the defendants') against the order dated

16.11.2010 passed by the Trial Court, whereby it dismissed the

application filed by the defendants under Sections 33, 36 of the

Stamp Act, 1998 (for short, 'the Act of 1998') Section 17 (f) of the

Registration Act, 1908 (for short, 'the Act of 1908') and Order 14

(2 of 6)

[CW-1013/2011]

Rule 2 CPC and the agreement to sell dated 6.1.2005 has been

admitted in evidence for collateral purpose.

Facts of the case are that the respondent-plaintiff (for

short, 'the plaintiff') filed a suit for specific performance of the

agreement to sell dated 6.1.2005 and permanent injunction

against the defendants. The defendants filed the written

statement and raised a specific objection that the purported

agreement being unregistered and unstamped, was inadmissible

in evidence. Issues were framed. Thereafter the defendants filed

an application under Sections 33, 36 of the Act of 1998, Section

17 (f) of the Act of 1908 and Order 14 Rule 2 CPC with the prayer

that issue no. 6 already framed, be decided as a preliminary issue,

which has been dismissed by the trial court vide order dated

16.11.2010. Hence, this writ petition.

Learned counsel for the defendants submits that the

purported agreement to sell dated 6.1.2005 is forged and

fabricated. The defendants neither executed any agreement in

favour of the plaintiff nor possession was given to him nor sale

consideration was received by them. He further submits that the

purported agreement to sell dated 6.1.2005 being unregistered

was inadmissible in evidence in terms of the provisions of Section

17/49 of the Act of 1908 and being insufficiently stamped was

required to be impounded and sent to Collector (Stamps) for

determination and payment of the stamp duty and penalty

thereon in terms of the provisions of the Act of 1998. He further

submits that in the purported agreement to sell dated 6.1.2005,

sale consideration of Rs. 1,51,000/- was mentioned and in view of

clause (bb) of Sr. No. 5 of Schedule appended to the Act of 1998,

3% of the total consideration of the property, as set forth in the

(3 of 6)

[CW-1013/2011]

agreement, which comes to Rs. 4530/-, was payable. Since the

purported agreement to sell dated 6.1.2005 was alleged to have

been executed on a stamp paper of Rs. 100/-, therefore, stamp

duty of Rs. 4430/- alongwith penalty thereon was required to be

paid by the plaintiff. In support of his contentions, he has placed

reliance on the following judgments:

i)

Avinash Kumar Chauhan Versus Vijay Krishna

Mishra reported in (2009) 2 Supreme Court Cases

532

ii)

Prembai Versus Khurshid Bano & Ors. reported in

2014 (3) WLC (Raj.) 221

iii)

Om Prakash & Ors. Versus Madan Lal & Ors.

(S.B. Civil Writ Petition No. 7815/2016;

decided on 26.7.2017)

On the other hand, learned counsel for the plaintiff

submits that sale consideration of Rs. 1,51,000/- was received by

the defendants