Udey Singh vs Bakshish Singh and Others

J.V. Gupta, J.—This is Plaintiff''s second appeal whose suit for possession of the land measuring 4 Biswas was decreed by the trial Court, but has been dismissed in appeal.

The Plaintiff filed the suit for possession of 4 Biswas of land alleging that previously this property belonged to the Government and on 16-12-1968, he purchased the same for a sum or Rs. 225/- in public auction and the sale certificate was issued in his name on 6-8-1969. On the basis of the sale certificate, mutation regarding the property was also sanctioned in his favour. Since the Defendants had taken forcible possession of land some time prior to the filing of the suit, hence the present suit. In the written statement, the Defendants pleaded that on 20.2.1969 the Plaintiff had entered into an agreement to sell this property to Bakhshish Singh, Ajit Singh and Hardeep Singh s/o Khazan Singh, Defendants for a sum of Rs 225/-. This amount was paid to him and he agreed to execute the sale deed on receipt of sale certificate. The Plaintiff failed to execute the sale deed and has filed the present suit with an ulterior motive.

the trial Court found that the Plaintiff never agreed to sell the land in dispute to Bakhshish Singh etc. nor they were in possession of the same in pursuance of that agreement. Consequently, Plaintiff''s suit was decreed. The trial Court found that the agreement of sale Ex. D 1 was inadmissible in evidence as it was not on a proper stamped paper.

In appeal, the learned Addl District Judge reversed the said finding of the trial Court. The main controversy between the parties was as to whether the document Ex. D. 1 was admissible in evidence or not. According to the lower Appellate Court when the said document was duly exhibited, then the objection as to its admissibility could not be taken later on. For that purpose reliance was placed on Javer Chand and Others Vs. Pukhraj Surana, . Moreover, the lower Appellate Court further found that the Plaintiff admitted the execution of the said agreement Ex D 1 In view of that finding, Plaintiff''s suit was dismissed Dissatisfied with the same, the Plaintiff hat filed the second appeal in this Court.

At the time of motion hearing, the appeal was admitted on the question as to whether an agreement to sell, Ex D. 1, which was held to be inadmissible by the trial court could be held admissible by the first appellate Court on the basis of a decision of Supreme Court in Javer Chanel''s case (supra) in view of the fact that the objection to the admissibility was taken and upheld by the trial Court.

The learned Counsel for the Appellant contended that it was not open to the lower Appellate Court to hold that the document Ex. D-l was admissible in evidence simply because it was duly exhibited by the trial Court According to the learned Counsel the document was exhibited subject to objections and later on the trial Court while dealing with that objection found that the document was inadmissible as it was not on the proper stamp paper Thus argued the learned Counsel, once it was so held by the trial Court, then it was not open to the lower Appellate Court to hold that the document was admissible because it was exhibited by the trial Court. According to the learned Counsel, the judgment relied one, i.e. Javer Chand''s cast (supra) has not been correctly interpreted. In support of his contention be cited Ram Rattan (Dead) by Lrs. Vs. Bajrang Lal and Others, .

After hearing the learned Counsel for the parties and going through the relevant evidence on the record, I am of the considered view than the whole approach of the lower Appellate Court was wrong and illegal It has been wrongly observed by the lower Appellate Court that the Plaintiff admitted the execution of the document Ex. D l In his statement no where he has admitted that he executed the agreement to sell as alleged by the Defendants. The lower Appellate Court has thus misread the statement of the Plaintiff who appeared as P. W. 4.

As regards the admissibility of the decampments Ex D-l, the trial Court exhibited the same subject to objections That being so, that it could not be held that simply because the document was exhibited by the trial Court, its admissibility could not be challenged later on. Such a matter was considered by the Supreme Court in Ram Rattan''s case (supra) and it was held therein that:-

When the document is tendered in evidence by the Plaintiff while in witness box and objection is raised by the Defendants that the document is inadmissible in evidence as it is not duly stamped or for want of registration, it is obligatory upon the trial Judge to apply his mind to the objection raised and to decide the respection(sic) in accordance with law. Tendency sometimes is to post-padge(sic) the decision to avoid interruption in the process of recording . evidence and, therefore, a very convenient device is resorted to, of making the document in evidence, subject to objection. This, however, would not mean that the objection as to admissibility on the ground that the instrument is not duly stamped is judicially decided; it is merely postponed. In such a situation at a later stage before the suit is finally disposed of it would none-the-less be obligatory upon the court to decide the objection.

The endorsement made by the trial Judge that "objected, allow ed subject to objection", clearly indicates that: when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation S. 36 (Stamp Act (2 of 1899) would not be attracted. A. 1. R. 1961 S. C. 1655, relied on.

It may be mentioned here that the agreement of sale is on a blank paper whereas admittedly it should have been on a stamp paper. The Defendants had, at no stage, of the suit, offered to pay the stamp duty along with penalty. In these circumstances, the trial Court rightly held that the document was in-admissible in evidence. In these circumstances, the view taken by the lower Appellate Court was wholly wrong, illegal and erroneous whereas the view taken by the trial Court was correct.

Consequently, this appeal succeeds, the judgment and decree of the lower Appellate Court are set aside and that of the trial Court decreeing the suit of the Appellant is restored with costs throughout.