Tarani Swansi vs Rameshwar Mahto and Others

S. Chandrashekhar, J.

Aggrieved by order dated 04.03.2008 in Title Suit No. 12 of 2006, the present writ petition has been filed.

The petitioner is the plaintiff in Title Suit No. 12 of 2006 which was filed for a declaration of right, title, interest and possession of the plaintiff over the suit land and for a permanent injunction restraining the defendants from interfering with the peaceful possession of the plaintiff. An alternative prayer for recovery of possession if the plaintiff is found dispossessed from the suit property, has also been made. It is stated that the landlord namely, Dhanjay Mahto granted Hukumnama in favour of Dhani Swansi and he was put in khas possession of 49 decimals of land in R.S. Khata No. 90 under Khewat No. 5, Plot No. 307. The said Dhani Swansi constructed a house in the year, 1935 over the part of the suit land and the rest of the plot in plot No. 307 was cultivated by him. The Dhani Swansi paid rent to the landlord who granted rent receipts. After the death of the said Dhani Swansi, his son and nephew along with their family members came in possession of the suit land. The land is recorded in RS Records of Rights in the name of Dhanjay Mahto and others as "Bakast Lagan Panaewala". On 09.02.1935 the landlord granted sada dan pata in favour of said Dhani Swansi. The defendants appeared and filed written statement on 19.01.2007 and vide, order dated 22.02.2007 parties were directed to file documents, list of documents and proposed issues. The plaintiff''s witness No. 1 was examined on 22.03.2007 and the sada dan patta was sought to be exhibited, to which the defendant raised an objection that the said documents should have been registered and valued. After hearing the parties, the trial court vide, order dated 25.04.2007 impounded the said document. On the prayer made on behalf of the plaintiffs that they would pay stamp duty, a report from Shrestedar was called. The Shrestedar submitted report dated 04.05.2007 indicating that since value of transferred land is not mentioned on the sada dan patta, it is not possible to assess the stamp duty on the said document. The plaintiffs filed application dated 04.03.2008 seeking permission of the Court for paying stamp duty with fine and for exhibiting the said sada dan patta. The said application has been dismissed by the impugned order dated 04.03.2008.

The learned counsel for the petitioner submits that though, the Seristedar gave a report on 04.05.2007 that stamp duty for the sada dan patta cannot be assessed and the plaintiffs moved an application for paying the stamp duty with fine and for marking said document as exhibit in Title Suit No. 12 of 2006 however, the said application has been dismissed on the ground that the said document is unregistered and on the ground that the plaintiffs failed to produce the valuation of the land in question. It is submitted that in view of the report dated 04.05.2007 of the Sheristedar, the trial court was required to release the said document and plaintiffs should have been permitted to exhibit the same in the pending suit. Per contra, the learned counsel for the respondents submits that the plaintiffs are claiming their right, title and interest over the suit schedule property by virtue of sada dan patta dated 09.02.1935 and therefore, the said document was compulsorily registerable. Besides that, the plaintiffs are required to pay stamp duty for the said deed of transfer and unless, these two requirements are complied the said document cannot be relied upon by the plaintiffs.

The original record of Title Suit No. 12 of 2006 has been received in this Court. The proceeding in Title Suit No. 12 of 2006 indicates that vide order dated 25.04.2007 sada dan patta was impounded by the Court and the Sheristedar was directed to submit a report. Accordingly, the Sheristedar gave a report on 04.05.2007 stating that in absence of valuation of the property mentioned in the said document, the stamp duty to be paid for the said document cannot be ascertained. In "Nana v. Anant", reported in (1877) 2 Bom. 353, it has been held that "When it is necessary to determine whether an instrument other than a deed of gift purports or operates to create an interest of the value of Rs. 100 or upwards in immovable property within the meaning of Section 17(1)(b) of the Indian Registration Act, 1864, the test of value is the consideration stated in the instrument".

The learned counsel for the petitioner submits that in view of proviso to Section 49 of the Registration Act, 1908, the unregistered document affecting immovable property may be received as evidence of any collateral transaction required to be effected by the registered instrument. I am of the opinion that the reason recorded in the impugned order dated 04.03.2008 that the said document is an unregistered document and therefore, the plaintiffs cannot be permitted to exhibit the same, is erroneous.

In view of report dated 04.05.2007 of the Sheristedar, the trial court should have released the sada dan patta. The plaintiffs have based their claim over the suit land by virtue of sada dan patta dated 09.02.1935. Whether, the said document can be relied upon by the plaintiffs for staking a claim over the suit schedule property or not and the issue of admissibility of the said document, are the questions which can be decided during the trial. The plaintiffs have claimed that the said document is more than 30 years old. It would be thus, the duty of the plaintiffs to prove the execution of the said document and also to prove the contents of the said document which can be done only during the trial by leading evidence. At this stage the ground that the plaintiffs failed to produce valuation of the said document and the said document is an unregistered document, cannot be the ground for denying the plaintiffs their right bring the said document on record.

Considering the above facts, order dated 04.03.2008 is set-aside. Order dated 02.12.2008 passed by this Court whereby the trial court was directed not to deliver the judgment, is hereby vacated. It is ordered that the trial court shall permit the plaintiffs to exhibit the said documents. The defendants shall be granted opportunity to cross-examine the witness through whom the said document would be exhibited. After hearing the parties, the trial court shall deliver the judgment. In the result, the writ petition is allowed.

Let the trial court records be transmitted to the court concerned, forthwith.