J.G. Chitre, J.
1. This second appeal has been admitted only on one substantial question of law, which can be enumerated as follows:
'Whether in the facts and circumstances of the case, Ex. P-2A is admissible in evidence and if admitted whether it is correctly interpreted by the appellate Court ?'
2. In view of this substantial question of law which has been enumerated by this Court while admitting the appeal, both the learned counsel appearing for the parties have been heard with reference to evidence on record, Shri Joshi has tendered the original document, i.e. Ex. P-2A at the time of final hearing of this appeal. It has been tallied with the Xerox copy which has been admitted in evidence by the trial Court. The said document Ex. P-2A mentions:
'BHADA CHITTI LIKHA LENEWALE KAZI BASHIR MOHAMMAD WALD GULAM MOHAMMAD INDORE MALWA MILL INHO KO LIKHDENE WALE DHANNA WA MOTI LODHA SA INDORE MALWA MILL ISA KE TUMHARI INAMI ZAMIN DO EKAD PACHAS DECIMAL....'
It further mentions:
'DARMIYAN KI ZAMIN TARIKH 15-11-1938 SE DHAIRUPYA MAHVAR PAR BHADE SE LI HAI USME RAHOONGA AUR CHHAPAR BANANA VA GHAS VAGAIRAH BECHNA YE KAAM KE VASTE LI HAL BHADA MAHINE KE MAHINE DETA JAVOONGA UJAR KAROONGA NAHI AGAR MAHINE KE MAHINE NAHI DO TO DO MAAH TAK MERA RASTRA DEKHNA NAHI TO APKO AKHTYAR HAI ZAMIN MERE SE CHHUDA LENA ...... JAB TAK VAKT PAR KIRAYA DOONGA TAB TAK KHALI NAHI KAROONGA.'
3. Shri Joshi pointed out that these sentences mentioned in the said document have relevance with the admission of original defendant No. 1 Dhannalal, which shows that in the said written statement in paragraph No. 1 he admitted that 50 years prior to submission of the written statement he had taken the suit land on rent from the forefathers of original plaintiff for constructing huts and for selling grass. He pointed out that in paragraph No. 1 the original defendant had admitted that the month of tenancy was commencing from the 12th instant of every month as per gregorian calendar. Shri Joshi further pointed out that in paragraph No. 2 original defendant No. 1 had admitted that he would be using the said suit land strictly in terms on which the said land was rented to him on patta. He further admitted in the same paragraph that original defendants Nos. 4 to 12 were installed by him as subtenants. It was also further admitted by him in the same paragraph that he was to construct the huts on the said land in accordance with the terms on which the said land was taken by him on rent on patta. It was also assured that he would be paying the rent per month regularly.
4. Shri Joshi further referred to paragraph No. 3 of written statement wherein it was admitted by original defendant No. 1 that whatever construction was done by him on the suit land was in accordance with the said patta. Furthermore, it was admitted by him that he had received the notice which was given by original plaintiff and the said notice was replied to by him through his Advocate.
5. By referring to these contents of the written statement Shri Joshi made reference to provisions of Section 35 of the Indian Stamp Act, 1899 (hereinafter referred to as 'Stamp Act' for convenience). Section 35 of the Stamp Act reads:
'35. Instruments not duly stamped inadmissible in evidence, etc. -- No instrument chargeable with duty shall be admitted in evidence for any pourpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any 'such person or by any public officer, unless such instrument is duly stamped :
Provided that -- (a) any such instrument not being an instrument chargeable with a duty not exceeding ten naye paise only, or bill of exchange or promissory note, shall subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) where any person from whom stamped receipt, could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him, on payment of a penalty of one rupee by the person tendering it;
(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the Collector as provided by Section 32 of any other provision of this Act.'
He also made a reference to provisions of Section 36, which reads as follows:--
'36. Admission of instrument when not to be questioned. -- Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61 be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.'
Shri Joshi made reference to Section 61 of the Stamp Act which reads:
'61, Revision of certain decisions of Courts regarding the sufficiency of stamps. - (1) When any Court in the exercise of its civil or revenue jurisdiction or any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898, makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and penalty under Section 35, the Court to which appeals lie from, or references are made by, such first mentioned Court may, of its own motion or on the application of the Collector, take such order into consideration.
(2) If such Court, after such consideration is of opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under Section 35, or without the payment of higher duty and penalty than those paid, it may record a declaration to that effect and determine the amount of duty with which such instrument is chargeable, and may require any person in whose possession or power such instrument then is, to produce the same, and may impound the same when produced.
(3) When any declaration has been recorded under Sub-section (2) the Court recording the same shall send a copy thereof to the Collector and, where the instrument to which it relates had been impounded or is otherwise in the possession of Court, shall also send him such instrument.
(4) The Collector may, thereupon, notwithstanding contained in the order admitting such instrument in evidence, or in any certificate granted under Section 42, or in Section 43, prosecute any person for any offence against the stamp law which the Collector considers him to have committed in respect of such instrument:
Provided that -- (a) no such prosecution shall be instituted where the amount (including duty and penalty) which according to the determination of such Court, was payable in respect of the instrument, under Section 35, is paid to the Collector, unless he thinks that the offence was committed with an intention of evading payment of the proper duty;
(b) except for the purposes of such prosecution no declaration made under this section shall affect the validity of any order admitting any instrument in evidence, or of any certificate granted under Section 42.'
Thereafter Shri Joshi pointed out the provisions of Section 167 of Indian Evidence Act, 1872 (hereinafter referred to as 'Evidence Act'), which reads as follows:
'167. Now new trial for improper admission or rejection of evidence. -- The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised, that independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the derision.'
6. It is the argument of Shri Joshi that once this document has been admitted by the trial Court by passing an order that it stands admitted inevidence, now the admissibility of that document cannot be challenged in any Court. He submitted that while admitting this document in evidence the trial Court directed the original plaintiffs-respondents (LRs of original plaintiff) to pay the necessary amount of stamp duty. He placed reliance on a Division Bench judgment of this Court in the matter of Hatimbhai v. Kanhaiyalal, a judgment in C.R. No. 401 of 1973 decided on 20-3-1975 reported in 1975 MPLJ 45, Note No. 76 wherein this Court held that:
'The judicial determination by a Court holding the document to be admissible amounts to admission of document as contemplated under Section 36 of the Stamp Act and, therefore, it cannot be called in question at any stage of the same suit or proceeding and that of the superior Court. Even when the Court holds a document to be admissible in evidence subject to the payment of penalty, the order passed by the Court would be the final judicial determination of the question, even where the condition is not fulfilled as the payment of penalty and the formality of marking the document do not call for any judicial determination of the question and in that event the order passed by the Court holding the document to be admissible in evidence subject to the payment of duty and penalty also will amount to admitting the document in evidence as contemplated under Section 36 of the Stamp Act and the order being final cannot be called in question at any stage of the same suit or proceeding.'
While pronouncing this judgment the Division Bench of this Court referred to the following judgments:
(1) AIR 1961 SC 1655;
(2) 1960 MPLJ 1346 : ( AIR 1961 MP 6);
(3) AIR 1962 MP 384;
(4) AIR 1970 MP 74.
7. By the order of the trial Court the said document has been admitted in evidence. Therefore, in view of provisions of Section 167 of Evidence Act now improper admission or rejection of this evidence shall not be ground of itself for a new trial or reversal of any decision in any case. If it appears to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received it could not to have varied the decision.
8. By using the provisions of proviso (e) to Section 35, Stamp Act, the trial Court has admitted this document Ex. P2-A and that has been acted upon while pronouncing the judgment and passing the decree in consequence of that. In view of provisions of Section 36, now that Act cannot be challenged, except considering provisions of Section 61 of the Stamp Act. Keeping in view the provisions of Section 61 of Stamp Act, Section 167 of Evidence Act and the admissions of original defendant No. 1 in the written statement, as mentioned above, I do not find that the admission of this document should be permitted to be challenged in this appeal and the admission of that document Ex. P2-A would be in any way varying the decision in the suit.
9. Thus, the substantial question is hereby answered by holding that the document Ex. P2-A is admissible in evidence and has been rightly admitted by the trial Court in evidence.
10. So far as other aspect to substantialquestion of law, which has been formulatedby this Court while admitting this appeal isconcerned, after examining the evidence onrecord 1 come to the conclusion that the saiddocument has been correctly interpreted bythe first Appellate Court.
11. Thus, the appeal fails and stands dismissed with costs. Counsel's fee Rs. 300/-. The trial Court is directed to make enquiry for purpose of assessing the amount of penalty and stamp fee which the respondents have to pay to the Government. That enquiry be completed by the trial Court within a month and thereafter fifteen days' time be granted to the respondents for making necessary compliance of the order which would be passed by the trial Court. The respondents to appear before the trial Court on 20-12-1995 at 11-30 a.m.