1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 227 of 1999. Date of Decision: 27th December, 2010. Chaman Lal …..Appellant Versus Sushil and others …..Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1No For the Appellant: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. For the Respondents: Mr. Karan Singh Kanwar, Advocate. No. 1 (a) to 1 (f) Sanjay Karol, J. (Oral). This is the plaintiff’s Regular Second Appeal filed under Section 100 of the Code of Civil Procedure. Plaintiff’s civil suit, filed against the defendants/respondents herein (also their legal representatives) was dismissed by Sub Judge, Rajgarh, in terms of judgment dated 14th August, 1997. In an appeal preferred by the plaintiff, District Judge , Sirmour affirmed the decree in terms of judgment and decree dated 8th March, 1999. Hence the present appeal. 2. Plaintiff filed a suit for declaration to the effect that revenue entries with respect to the suit land are illegal and Sh. Mohan Dutt (defendant No. 1) (contesting defendant) has no right, title or interest in the suit land. Suit was hotly 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 contested by the contesting defendant inter alia on the ground that in terms of agreement to sell dated 7th December, 1968, original co-owner Sh. Bala Ram had agreed to sell the suit land in his favour for a total consideration of Rs. 1600/-, out of which Rs. 800/- stood paid to Sh. Bala Ram at the time of handing over possession of the land. Even Krishana Nand, the other co-owner received Rs. 500/- from the contesting defendant. 3. Based on the pleadings of the parties trial court framed the following issues:- “1. Whether the suit is not maintainable in the present form? OPP 2. Whether the plaintiff is estopped by his act and conduct from filing the suit? OPD 3. Whether the plaintiff and proforma defendants are owners in possession of the suit land as alleged? OPD 4. Whether the defendant No. 1 has become owner of the suit land by way of adverse possession? OPD (1) 5. Whether deceased Krishana Nand, Bala Ram had entered into an agreement to sell suit land to defendant No. 1 and had put him in possession? If so to what effect? OPD (1) 6. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP 7. Whether this court has no jurisdiction to try this suit? OPD 8. Whether the defendant No. 1 has improved the suit land? If so to what amount and to what effect? OPD (1) 9. Relief.” 3 4. Trial court found the contesting defendant to have perfected his title as owner, by way of adverse possession. Consequently, plaintiff’s suit was dismissed. 5. The Lower Appellate Court held the defendant to be owner in possession of the suit land by virtue of agreements to sell (Ex. DW-3/A and DW-4/A), which stood proved by Balwant Singh (DW-2), Sibiya Ram (DW-3) and Rattan Chand (DW-4). However, with regard to the findings returned by the trial court, it so held that the contesting defendant had not perfected his title by way of adverse possession. The Court observed that the agreements to sell were got exhibited by the parties without any objection, thus their admissibility could not be questioned by the plaintiff and the same could be looked into being legal evidence. Relying upon the decision rendered by the Apex Court in Javer Chand and others Vs. Pukhraj Surana, AIR 1961, Supreme Court 1655, it held that even though the agreements in question were not stamped adequately and not impounded yet they could be looked into in evidence. 6. Perusal of agreements (Ex. DW-3/A and Ex. DW- 4/A) reveal that documents are not adequately stamped. There is no dispute about this fact either. On the documents there is endorsement dated 12th March, 1999 to the effect that amount of stamp duty and penalty stands deposited vide challan No. 8, dated 12th March, 1999. Document (Ex. DW- 3/A) was exhibited in the statement of Sh. Sibiya Ram (DW- 3) recorded on 17th April, 1997. Perusal of statement of this 4 witness reveals that plaintiff had objected to exhibiting of the same. Similarly, document (Ex. DW-4/A) was exhibited in the statement of Sh. Rattan Chand (DW-4) recorded on 13th May, 1997. Plaintiff had also objected to exhibiting of the same. 7. Undisputedly, no steps were taken by the contesting defendant to make good the deficiency of the stamp duty of agreements in question, till the time the matter came up in an appeal filed by the plaintiff before the District Judge. 8. Perusal of zimini orders further reveals that the District Judge had in fact heard the matter on merits and fixed the case for pronouncement of judgment on 16th January, 1999, on which date matter was adjourned for further hearing. On 18th February, 1999, matter was heard and fixed for pronouncement of judgment on 20th February, 1999, on which date judgment was not ready and matter was again adjourned for pronouncement of judgment on 8th March, 1999. 9. Record further reveals that application dated 16th October, 1998 was filed by the contesting defendant with a prayer that he be allowed to pay the charges of stamp duty and amount of penalty, if any. This application came up for hearing on 12th November, 1998. On 8th March, 1999, Court allowed this application and directed the contesting defendant to make good the deficiency in the stamp duty. Significantly, it is on this date itself that the Lower Appellate Court decided the main appeal in terms of impugned judgment and decree. However, stamp duty in question was actually paid by the 5 contesting defendant only on 12th March, 1999. Consequently, when the main appeal stood decided by the Lower Appellate Court, deficiency of stamp duty, in relation to the documents in question, undoubtedly remained to be made good. 10. It appears that the order on the application was passed by the Lower Appellate Court after it had pronounced the judgment in the main appeal, otherwise there would have been reference about this fact in the main judgment itself. Court below erred in appreciating the evidence of the parties while arriving at its conclusion that during trial plaintiff had not objected to exhibiting of the documents. Procedure adopted by the Court below, to say the least is illegal. 11. Reliance on the ratio of law laid down by the Apex Court in Javer Chand (supra) is misconceived. It is clearly distinguishable on facts. In the instant case plaintiff had specifically objected to the exhibiting of the documents during the trial. 12. In almost similar circumstances, this Court in Saran Dass and others Vs. Smt. Situ and others, 1985, Sim. L. C., 306 observed as under:- “With these observations I accept this revision petition, quash the order of the trial Court and direct that the petitioners be allowed to pay stamp duty chargeable on the document mark “X” and also to pay the prescribed penalty. After such duty and penalty are paid the trial Court shall comply with the provision of section 38 (1) 6 of the Indian Stamp Act. The petitioners then may be allowed to prove this document and tender it as evidence of any relevant collateral transaction not required to be effected by the registered instrument.” 13. The Courts below ought to have followed the aforesaid procedure as is required by law. 14. Consequently, for the aforesaid reasons, the impugned judgment and decree dated 8th March, 1999 passed by District Judge, Sirmour in Civil Appeal No. 107-CA-13 of 1997 is set aside. Keeping in view the attending circumstances and also the fact that the parties have fair opportunity of dealing with the effect of subsequent payment of the amount of penalty and stamp duty, matter is remanded back to the Lower Appellate Court. The Court below shall afresh decide the appeal on merits within a period of six months from the date of receipt of the record. 15. Learned counsel for the parties agree that the parties shall appear before the concerned Court on 1st March, 2011. (Sanjay Karol) Judge December 27, 2010 (KRS)