CW-252/04-Vipin Kumar & Anr.Vs.Addl. District Judge, Nimbahera & Ors. Judgment dt.24.11.09 1/3 S.B. CIVIL WRIT PETITION NO.252/2004 Vipin Kumar & Anr. Vs. Addl. District Judge, Nimbahera & Ors. Date of order : 24th November, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. N.K. Rastogi for the petitioners. Mr. Nikhil Dungawat for Mr. P.S. Bhati for the respondents. ------- 1. This writ petition is filed against the order dated 18.10.2003 passed by the learned trial Court in a suit for specific performance filed by the plaintiff-petitioner. The question involved before the learned trial court was as to whether the agreement to sell dated 22.12.1998 not bearing adequate stamp duty nor being registered, was still admissible in evidence or not. 2. The learned trial Court rejected the plaintiff's contention that it was admissible in evidence. 3. Being aggrieved of the said order, the plaintiff- petitioners approached this Court by way of present writ petition. 4. Mr. N.K. Rastogi, learned counsel appearing for the plaintiff-petitioner relying on the decision of the Hon'ble Supreme court in case of Bondar Singh & Ors. Vs. Nihal Singh & Ors. - (2003)4 SCC page 161 and judgment of this Court in case of Smt. CW-252/04-Vipin Kumar & Anr.Vs.Addl. District Judge, Nimbahera & Ors. Judgment dt.24.11.09 2/3 Pushpa Kanwar and Anr. Vs. Suraj Prasad Gupta – 1997 WLC (Raj.) UC page 377 and Harjeet Vs. Megha & Ors. - RLR 2000(2) page 193 and in case of Narayan & Anr. Vs. Madan & Ors. - RRT 2002(2) page 901 submitted that notwithstanding the provisions of Section 35 of the Rajasthan Stamp law, the said document namely agreement to sell could be admitted in evidence at least for collateral purposes of showing the character of possession of the plaintiff- petitioner over the land in question. He submitted that in view of the proviso to Section 49 of the Registration Act, 1908, the said document could not be held to be inadmissible in evidence altogether. 5. On the other hand Mr. Nikhil Dungawat relying on the decision of the Hon'ble Supreme Court in Avinash Kumar Chauhan V. Vijay Krishna Mishra – AIR 2009 SC 1489 submitted that the document in question being inadmissible in evidence could not be relied upon even for collateral purpose unless it was adequately stamped and was registered. 6. Having heard learned counsels and in view of the judgments cited at the Bar and the provisions of Section 49 proviso of the Registration Act, this Court is of the view that the agreement in question even though being inadmissible in evidence as it was not stamped and registered in accordance with the requirements of Section 35 of the Rajasthan Stamp Law for the purposes of suits for CW-252/04-Vipin Kumar & Anr.Vs.Addl. District Judge, Nimbahera & Ors. Judgment dt.24.11.09 3/3 specific performance, could be considered only for the limited collateral purposes of establishing the character of possession of the plaintiff-petitioner, if any, though the learned counsel for the respondent submitted that suit property has passed hands and stands transferred to third party. 7. In view of this, the impugned order rejecting the said document as a whole without saving it for the purpose of being used for collateral purpose as per proviso to Section 49 of the Registration Act, 1908, cannot be sustained. 8. In view of the above, this writ petition is disposed of with the modification of the impugned order of the learned trial court that the said document in question dated 22.12.1998 can be used by the plaintiff-petitioner only for collateral purpose and not for the basing of the claim of specific performance itself on the basis of the said agreement as the same is neither registered not stamped in accordance with Section 35 of the Rajasthan Stamp Law. 9. With these observations, this writ petition is disposed of. No order as to costs. [ DR. VINEET KOTHARI ], J. item No.27 babulal/