HON’BLE SRI JUSTICE V.ESWARAIAH C.R.P.NO.5591 OF 2008 Dt.24.12.2010 Between: Pinubondu Mutyala Rao ..Petitioner And Urkuti Nestalamma and others ..Respoondents HON’BLE SRI JUSTICE V.ESWARAIAH C.R.P.NO.5591 OF 2008 ORDER: Petitioner is the defendant in the suit O.S.No.35 of 2006 on the file of the Senior Civil Judge, Gajuwaka, filed by the respondents for declaration of title and recovery of possession. In the said suit, the petitioner herein filed I.A.No.604 of 2007 under Section 33, 35, 38 (1) & (2) of Indian Stamp Act for sending the sale deed dated 13.12.1995 along with his counter in I.A.No.87 of 2006 in the suit to the District Collector for the purpose of impounding and collection of stamp duty and penalty. It is stated that the plaintiffs have filed the suit with false allegations against him, seeking the relief of declaration of their title and for recovery of possession by evicting the defendant from the suit schedule property and further the plaintiffs have falsely alleged in the plaint that the defendant is a licensee though in fact the defendant purchased the schedule property and is in possession of the same as absolute owner. It is further stated that the husband of the first respondent and father of plaintiffs 2 to 4 sold the plaint schedule property in favour of defendant for valuable consideration of Rs.43,000/- vide unregistered sale deed dated 13.12.1995 and delivered the schedule property and ever since he is in possession and enjoyment of the same as absolute owner thereof. At the time of the sale the husband of the 1st plaintiff stated that he will register the sale deed as and when he gets permission from the Steel Plant authorities, but went on postponing the same on one pretext or the other and ultimately he died in 2003. It is stated that the defendant has been paying property tax for the schedule house and also paying electricity consumption charges and thus he is in possession of the schedule property. It is stated that the sale deed dated 13.12.1995 executed is unregistered and insufficiently stamped and therefore he intents to rely on the said sale deed for collateral purpose to prove his possession of the schedule house as owner thereof and not as licensee by receiving unregistered sale deed in evidence for collateral purpose and it requires to be impounded as contemplated under the Indian Stamp Act. It is stated that the said sale deed is filed by him into court along with the counter in I.A.No.87 of 2006. Counter is filed by the plaintiffs stating that the alleged sale deed is a forged and fabricated and created for the purpose of grabbing the schedule property. The father of plaintiffs 2 to 4 and the husband of the 1st plaintiff never executed the said alleged sale deed in favour of the defendant and in view of legal deformity under Section 17 of the Registration Act the alleged document is compulsorily registerable and the said document is inadmissible in evidence and therefore the application for impounding is not maintainable. On the aforesaid pleadings, the learned Senior Civil Judge, Gajuwaka considering the point that whether the unregistered sale deed has to be sent for collecting stamp duty for the reasons set out in the affidavit filed by the defendant and relying on the decision of the Supreme Court in Hariom Agrawal v. Prakash Chan Malviya [2007 (6) ALD 105 (SC)] dismissed the application on the ground that the said application is belated one. Aggrieved by the same, this civil revision petition is filed. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. Sri K.V.Simhadri, learned counsel appearing for the petitioner submits that the order of the court below is illegal and erroneous and as per the judgment of this Court in C.Ramachandra Naidu v. M.Rajamma[1] the said document is liable to be impounded. He further placed reliance on the decision of the Apex Court in Bondar Singh v. Nihal Singh[2] wherein it was held that the unstamped and unregistered sale deed though does not convey to the vendee and not admissible in evidence, can be looked into for collateral purposes. The learned counsel also placed reliance on a decision of this Court in Sanjeeva Reddi v. Johanputra Reddi[3]. In the case of Sanjeeva Reddi v. Johanputra Reddy (supra 3), two documents i.e., an unregistered sale deed and an unregistered adoption deed are sought to be received as evidence to prove the signature of the plaintiff appearing either as a scribe or an executant, as the case may be, of the sale deed or adoption deed. Those two documents were impounded by levying stamp duty and penalty and received for collateral purpose. In the case of C.Ramachandra Naidu v. M.Rajamma (supra 1) the suit relates to specific performance of the agreement of sale and therefore, the document can be impounded and filed in view of exception under Section 49 of the Registration Act, 1908 with regard to the effect of non- registration of document requires to be registered in so far as the suit for specific performance of the contract is concerned. Therefore, there is no dispute that in a suit for specific performance based on the agreement of sale, compulsory registerable document can also be received in view of proviso to Section 49(c) of the Act or as evidence of any collateral transaction not required to be effected by registered instrument. In so far as the judgment of the Apex Court in Bandar Singh v. Nihal Singh (supra 2) is concerned, the suit relates to declaration of title for adverse possession and for restraining the defendants from interfering with the plaintiffs’ possession over the suit land. The suit was decreed. But the appellate court i.e., the Additional District Judge allowed the appeal dismissing the suit. Against which, the appeal filed by the plaintiffs before the High Court was allowed decreeing the suit. The Supreme Court while confirming the judgment of the High Court considered the question of continuous possession of the plaintiffs over the suit lands and the sale deed said to have been executed by the father of the defendants in favour of predecessor-in-title of the plaintiffs was considered for collateral purpose on the ground that the execution of the said document was not disputed. The only defence set up against the said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of the plaintiffs. Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. Therefore, the Apex Court held that even though the said document is inadmissible in evidence, can be looked into for collateral purposes of possession of the plaintiffs over the suit land. There was no dispute with regard to the execution of sale deed and title was not relied based on the unregistered sale deed was relied only for the collateral purpose proving their possession and the signatures of the vendor was not disputed. The said document was received for collateral purpose. In the instant case, the plaintiffs filed the suit for declaration of title and eviction of the defendant from the suit schedule property and that the defendant is in possession as licensee, but not as purchaser. It is the case of the plaintiffs that their father never executed the said unregistered sale deed dated 13.12.1995 and the said document is forged and fabricated and created for the purpose of grabbing the said property. In so far payment of deficit court fee is concerned, the petitioner-defendant is entitled to impound the said document by duly paying stamp duty and penalty as per the procedure contemplated under the Indian Stamp Act. Once the insufficiently stamped instrument is admitted in evidence in the absence of any objection, it cannot be objected subsequently. But, in the instant case, merely because the application filed by the petitioner is under Section 33, 35, 38(1) & (2) of the Indian Stamp Act, the provisions of the Registration act cannot be forgotten. Under Section 17 of the Registration Act, the sale of immovable property and the value of more than Rs.100/- require compulsory registration. Such document, which requires compulsory registration, cannot be received as evidence under Section 49 of the Registration Act. Under Section 49 of the Registration Act no document required by Section 17 or by any provisions of the Transfer of Property Act, 1882 shall be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. Therefore, there is a legal bar under Section 49 of the Registration Act to receive unregistered sale deed of an immovable property, the value of which is Rs.43,000/- said to have been purchased by him from the father of plaintiffs 2 to 4 and husband of 1st plaintiff on 13.12.1995. However, as per proviso to Section 49, an unregistered document affecting immovable property and required by the Registration Act or the Transfer of Property Act to be registered may be received as evidence of a contract in a suit for specific performance under the Specific Relief Act or as evidence of any collateral transaction not required to be affected by registered instrument. In the instant case, the defendant desirous to receive the said document in support of his defence taken in the written statement that he is in possession of the said property as absolute owner pursuant to the unregistered sale deed. Therefore, it cannot be said that the defence of the defendant claiming possession as rightful owner pursuant to the unregistered sale deed is for collateral purpose, but it is for the main purpose for which the unregistered document is required to be relied on. It is the case of plaintiffs that the husband of the 1st plaintiff and father of plaintiffs 2 to 4 never executed sale deed and as such the unregistered sale deed is forged and fabricated and created and therefore it cannot be said that the unregistered sale deed is sought to be received in evidence by impounding the same after paying the stamp duty and penalty for collateral purpose. In view of the above, though the court below dismissed the said application on a different ground, I am of the opinion that the said document relied for the main purpose by the defendant deriving his right to be in possession as rightful owner pursuant to the unregistered sale deed cannot be received in evidence under Section 49(c) of the Registration Act. Therefore, the petitioner is not entitled for any relief. The civil revision petition is accordingly dismissed. No order as to costs. ________________ V.ESWARAIAH, J. 24.12.2010 kpr [1] 1999 ALT (1) 815 [2] (2003) 4 SCC 161 [3] AIR 1972 AP 373