Akkireddi Nagayamma W O Appalanaidu and One Another Vs Adhikari Appalanaidu S O Pothuraju and One Another - Citation 907283 - Court Judgment

Judgment:
ORDER:

This Civil Revision Petition is filed aggrieved by the order-dated 20.3.2009 passed in Memo in G.R.No. 4292 of 2008 in O.S.No. 19 of 2001 on the file of Principal Junior Civil Judge, Narsipatnam. Petitioners herein are the plaintiffs and respondents herein are the defendants in the Suit.

Brief facts of the case are that the plaint schedule land is a part of land situated in S.No. 426/3 of Chettupalli Village and originally belonged to Gudepu People. The husband of first plaintiff and father of 2nd plaintiff by name Akkireddi Appalanaidu purchased the said land under two different sale deeds dated 14.2.1952 and dated 2.4.1959 from Gudepu Somulu and another. It is stated that the father of 2nd plaintiff Appalanadi had been in continuous possession and enjoyment of plaint schedule land since the dates of purchase and subsequent to him the plaintiffs have been in possession and enjoyment of the same. It is also stated that the land situated to the West of plaint schedule land belonged to the father of the defendants. On 24.6.1973 the second defendant being the manager of the family of the defendants provided a cart track admeasuring 50 yards x 3 yards in their land for the plaintiffs to reach local fund road by receiving consideration of Rs. 350/- and also executed an agreement on the same day itself in evidence to the above said transaction in the presence of the then Sarpanch, Vice President and other elders of the village. The cart track provided for plaintiffs into the lands of defendants is shown as ABCD in plaint rough plan. The plaintiffs used to enjoy their easementary right of way peacefully, continuously without any interference from any body. Subsequently, the defendants partitioned their properties including the land situated on the West of Plaint schedule property. During that partition, the Western part of that land as well as the Eastern strip fell to the share of the second defendant and the Eastern part fell to the share of defendant No. 1 whereas both the defendants got their cattle sheds, makham and kallam sheds in their respective parts of their land and the plaint plan marked ABCD way runs by the side of those sheds of the defendants. It is stated that last year the defendants exchanged their lands and during that exchange the Eastern strip of the above said land was given to first defendant and thus the first defendant became the owner for the entire Eastern portion of land that situates to the West of Plaint schedule land. The Easementary right of way imposed under the agreement dated 26.4.1973 in and over the land of the defendants shall be there always along with the servant heritage to whom so ever it may be transferred and the right of plaintiffs can not be questioned either by the defendants or by any body. When the first defendant obstructed the plaintiffs while they were taking their cart with load of sugar cane through plaint plan ABCD way, plaintiffs filed O.S.No. 19 of 2001 with the following prayer:

"(i) Declaring that the plaintiffs are having easementary right in and over plaint plan marked ABCD cart track and consequently granting permanent prohibitory injunction against the defendants, restraining them, their men and servants from interfering with the plaintiffs' peaceful possession and enjoyment of their easementary of way in and over plaint plan marked ABCD cart track in any manner whatsoever.

(ii) Granting costs of the suit;

(iii) Granting such other reliefs as the Hon'ble Court deemed fit under the circumstances of the suit."

Be that as it may, first defendant-first respondent herein filed a Memo in G.R. 4292/2008 in O.S No. 19 of 2001, requesting the Court below to reject Ex. A3, which is an unregistered agreement. The Court below rejected Ex. A3 relying on the judgment of this Court reported in T. BASAVARAJU (DIED) PER LRS AND OTHERS VS. T. NAGARATNAM AND OTHERS1, holding that it was an inadmissible document, under Order XIII Rule 3 of CPC. Aggrieved by the same, plaintiffs in the suit filed the present Civil Revision. Sri Y.V. Ravi Prasad, learned counsel appearing for the petitioners contended that when once the document is marked by the Court below, it cannot be recalled by filing a memo. To support that contention he has drawn the attention of the Court to the judgments of the Supreme Court reported in JAVER CHAND AND OTHER VS. PUKHRAJ SURANA2, and T. BASAVARAJU (DIED) PER LRS AND OTHERS VS. T. NAGARATNAM AND OTHERS (supra-1).

On the other hand, Sri K. V. Subrahmanya Narsu, learned counsel appearing for the respondents vehemently contended that marking of a document is different from admitting the document and the trail Court is empowered under Order XIII Rule 3 of CPC to reject the document. He also contended that document, which is sought to be marked relates to an immovable property, which requires registration and it is compulsorily registerable document, under Section 17 of the Registration Act. He further drawn the attention of the Court to Sections 36 and 61(2) of the Indian Stamps Act. Heard the learned counsel appearing for both sides and also perused the entire material made available on record. As seen from the record, it is no doubt true that petitioners-plaintiffs herein approached this Court against an interlocutory order dated 20.3.2009 passed in Memo G.R. 4292 of 2008. The Court below clearly observed that the document is in admissible document following the judgment of the Supreme Court reported in T. BASAVARAJU (DIED) PER LRS AND OTHERS VS. T. NAGARATNAM AND OTHERS (supra-1) and rejected the same under Order XIII Rule 3 of CPC. In the Chief affidavit of PW- 1-Plaintiff, second petitioner herein, filed under Order 18 Rule 4 CPC r/w Order 19 Rule 1 of CPC, on 8.12.2008, it was observed that the cross examination for the defendants deferred at his request. The relevant portion reads thus:

"Dt: 8.12.2008: PW-1 is present and sworned for further chief-examination. In support of my suit I filed the following documents. Ex. A1 is a registered sale deed executed in favour of my father by name Akkireddi Appalanaidu dated 14.2.1952. Ex. A2 is the Registered sale deed executed in favour of my father by name Akkireddi Appalanidu dated 2.4.1959. Ex. A3 is the Agreement executed by the 2nd defendant in favour of 1st plaintiff dated 26.4.1973. Ex. A4 is the pattadar pass book issued by the Tahsildar (MRO) Cross-examination for the defendants: Deferred at request."

The Supreme Court in T. BASAVARAJU (DIED) PER LRS AND OTHERS VS. T. NAGARATNAM AND OTHERS (supra-1) while referring to the judgment of the Apex Court reported in R.V.E. VENKATACHALA GOUNDER VS. ARULMIGU VISWESWARASWAMI ND V.P TEMPLE3, at paragraph 18 observed as under:

"18..... The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought ot be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court." In the other judgment referred to by the learned counsel appearing for the petitioners reported in JAVER CHAND AND OTHER VS. PUKHRAJ SURANA (supra-2), the Supreme Court held as under:

"That section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. The only exception recognised by the section is the class of cases contemplated by Section 61, which is not material to the present controversy. Section 36 does not admit of other exceptions. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped. It has to be decided then and there when the document is tendered in evidence. Once the Court rightly or wrongly decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a personal provision and has far reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record in this case discloses the fact that the hundis were marked as Exs P-1 and P-2 and before the endorsement 'admitted in evidence' under the signature of the Court. It is not therefore, on of those cases where a document has been inadvertently admitted, without the Court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 38 of the Stamp Act comes into operation. Once a document has been admitted in evidence as aforesaid , it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction."

The trial Court allowed the application filed by the first defendant in the Suit under Order XIII Rule 3 of CPC requesting to reject Ex. A3 as it is an unregistered agreement. For ready reference, Order XIII Rule 3 of CPC reads as under:

"Rejection of irrelevant or inadmissible documents. The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection."

On the other hand the learned counsel for the respondent contended that the document, which is sought to be marked relates to an immovable property and requires registration under Section 17 of the Registration Act. For ready reference, Section 17 of the Registration Act reads as under:

"17. Documents of which registration is compulsory:- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 ( 3 of 1877), or this Act came or comes into force, namely:

(a) instruments of gift of immovable property;

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) (lease of immovable property}

(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property. Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years, and the annual rents reserved by which do not exceed fifty rupees. (1A) The document containing contracts to transfer for consideration, any immovable property for the purpose of Section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (amendment) Act, 2001 and if such documents are not registered on or after such commencement , then, they shall have no effect for the purposes of the said Section 53A) (2) Nothing in Clauses (b) and (c) of sub-section (1) applies to ,---

(i) any composition deed ; or

(ii) any instrument relating to shares in a Joint Stock Company, notwithstanding that the assets of such company consist in whole or in part of immovable property; or

(iii) any debenture issued by any such company and not creating, declaring, assigning, limiting, or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby, the company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or

(iv) any endorsement upon or transfer of any debenture issued by any such company ; or

(v) (any document other than the documents specified in sub-sec.(1A) except an agreement of sale as mentioned in clause (g) of sub-section (1) not in itself creating,) declaring, assigning , limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards, to or in immovable property, but merely creating a right to obtain another document which will, when executed, crate, declare, assign, limit or extinguish any such right, title or interest; or

(vi) (any decree or order of a Court, not being a decree or order or award falling under clause (f) of sub-section (1) except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding; or

(vii) any grant of immovable property by the Government: or

(viii) any instrument of partition made by a Revenue Officer; or

(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871 (26 of 1871) or the Land Improvement Loans Act, 1883 (19 of 1883); or

(x) any order granting a loan under the Agriculturists Loans Act, 1884 (12 of 1884), or instrument for securing the repayment of a loan made under that Act; or (xa) any order made under the Charitable Endowments Act, 1890 (VI of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or

(xi) any endorsement on a mortgage deed acknowledging the payment of the whole or any party of the mortgage money, and any other receipt for payment of money due under a mortgage when he receipt does not purport to extinguish the mortgage; or

(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer.

(3) Authorities to adopt a son, executed after the first day of January, 1872, and not conferred by a will, shall also be registered."

He also drawn the attention of the Court to Section 36 of the Indian Stamp Act, which reads as under:

" 36. Admission of instruments, where 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"

The supreme Court in T. BASAVARAJU (DIED) PER LRS AND OTHERS VS. T. NAGARATNAM AND OTHERS(Supra-1) with regard to admissibility of a document, at paragraphs 16 to 19 held as under:

"16. At the outset, I am of the opinion that the trial Court has not committed any error in ordering I.A.No. 62 of 2004 and directing the petitioner-3rd defendant to pay stamp duty and penalty on Ex. B-38, which is a carbon copy of the purported family settlement deed dated 9.7.1987. The suit itself is for partition and in such suits, the plaintiffs are the defendants and the defendants are the plaintiffs. The purpose of marking Ex. B-38 is to prove that there was already an earlier partition of the suit scheduled properties. Therefore, it goes to the root of the matter and it is not pressed into service for any collateral purpose as submitted by the learned counsel for the petitioner. It was pressed into service to prove that there was an earlier partition and the present suit itself is not maintainable under law. Once the document is sought to be admitted in evidence for the purpose of proving the partition, unless and until it is property stamped and registered, it is not admissible in evidence. Merely because the Court has marked the document as Ex. B-38, it cannot be said that it is not open for the Court to direct the petitienr-3rd defendant to pay the stamp duty and penalty for the purpose of admitting the same in evidence, evidencing the earlier partition between the parties.

17. The decisions relied upon by the learned counsel for the petitioner have no relevance to the facts of the case. The judgments relied upon by the learned counsel for the respondents categorically support the contention of respondent- defendants 4 and 5 that Ex. B38 though marked, it is not automatically liable to be admitted in evidence and there was no consideration as to whether it could be admitted in evidence or not by the Court below. Thus, the lower Court has not committed any error in passing the impugned order ordering the IA and requiring the petitioner-defendant to pay the stamp duty and penalty.

18. Learned counsel for he petitioner also contended that Ex. B-38 being only a carbon copy of the original document, the question of either stamping it properly or registering the same does not arise. I am afraid, I cannot accede to the said contention. It is not the specific case of the revision petitioner that the original is available and he can produce the same. It is his contention that the document is in his custody of the respondent. In fact, there is no evidence to that effect and to show that under such and such circumstances, the original of Ex. B-38 went into the custody of the respondents. His whole case is that Ex. B-38 is a carbon copy of the earlier family settlement deed and in view of the same, the partition sought in the present suit is not tenable. Therefore, once the original is not stamped and registered, whether it is carbon copy or otherwise, when it is sought to be pressed into service for the purpose of proving their case and since the property in question is immovable property and its value is more than Rs. 100/-, the same requires to be property stamped as well as registered and unless it is properly stamped and registered, the same cannot be admitted in evidence.

19. On 31-12-2003, the Court below recorded "heard. The said documents are marked as Exs B-35 to B38. for report 5-1-2004". In fact, there was no judicial determination as to the nature of the document and its admissibility in evidence by the Court below on that day i.e., 31.12.2003. Admittedly, Ex. B38 was marked through DW-6 and there was no endorsement by the Court that the other side had no objection for the same being marked. It is curious to note that the very same Presiding Officer, who directed marking of Ex. B38 has passed the impugned order 'on that day, the question of admissibility of the documents did not come up for consideration and that question was not decided." Under these circumstances, the Court below went into the judicial determination as to the admissibility of Ex. B-38 and found that it is not admissible in evidence, unless and until it is properly stamped and registered."

In this case, emphasis was laid on Ex. A-3, which is an agreement dated 24.6.1973, to enjoy the right of easement of cart track through plaint plan marked ABCD portion. The learned counsel has drawn the attention of this Court to the judgment of the supreme Court reported in SAIT TARAJEE KHIMCHAND AND OTHERS VS. YELAMARTI SATYAM ALIAS SATTEYYA AND OTEHRS4, wherein the Supreme Court observed that mere marking of a document as an exhibit does not dispense with the proof of documents. The relevant portion at paragraph 15 reads as under:

"15. The plaintiffs wanted to rely on Exs. A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the plaintiffs' books of account became important because the plaintiffs' accounts were impeached and falsified by the defendants' case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs' books would not have supported the plaintiffs."

In the memo filed by the plaintiff it is stated that he was not present and in his absence the document in question was marked viz., Ex. A-3 but the order of the court below clearly discloses that the cross-examination was deferred at his request. Order clearly shows that that the plaintiff was present and in his presence only the document was marked. Therefore, the question of an opportunity of not being heard and he was not present itself is wrong as per the memo filed by him.

In the present case, there is no dispute that the document is marked in the presence of the counsel and at his request the cross-examination was deferred and he has not raised any objection and at a later stage he raised objection, therefore, Section 36 of the Indian Stamp Act, 1899 comes into play. The language of Section 36 is very clear and categorical which shows when a document is 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 document has not been duly stamped. For ready reference Section 61 of the Indian Stamp Act reads as under:

"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(now Chapters IX and X of Cr.P.C., 1973 (2 of 1974); makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a 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 a 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-sec (2), the Court recording the same shall send a coy thereof to the Collector, and where the instrument to which it relates has been impounded or is otherwise in the possession of such Court, shall also send him such instrument. (4) The Collector may thereupon, notwithstanding anything 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."

As seen from the record, the document is marked in the presence of the plaintiff and it does not amount to any transfer of immovable property but it is only an easementary right to use the cart tract. However, I am not inclined to go into the merits or otherwise of the suit since the suit is still pending adjudication and the order passed is only an interlocutory order and it has no relevance with regard to merits or demerits of the main case. In the circumstances, the order passed by the Court below relying on the judgment of the Supreme Court reported in T. BASAVARAJU (DIED) PER LRS AND OTHERS VS. T. NAGARATNAM AND OTHERS (supra-1), is liable to be set aside and is accordingly set aside. The Court below is directed to take into consideration Ex. A-3 while disposing of the main suit.

Accordingly, the Civil Revision Petition is allowed. However, the observationsmade in this order do not have any effect on the adjudication of the merits or demerits of the suit.

There shall be no order as to costs.

Subject	Civil
Court	Andhra Pradesh High Court
Decided On	Oct-01-2010
Case Number	Civil Revision Petition No. 3316 of 2009
Judge	GHULAM MOHAMMED, J.
Acts	Code of Civil Procedure (CPC) - Order 13 Rule 3, Order 18 Rule 4 r/w Order 19 Rule 1; Registration Act - Section 17; Indian Stamps Act - Section 36, 61(2)
Appellant	Akkireddi Nagayamma W/O Appalanaidu and One Another.
Respondent	Adhikari Appalanaidu S/O Pothuraju and One Another.
Appellant Advocate	Sri Y.V.Ravi Prasad, Adv.
Respondent Advocate	K. V. Subrahmanya Narsu, Adv.

Akkireddi Nagayamma W/O Appalanaidu and One Another. Vs. Adhikari Appalanaidu S/O Pothuraju and One Another. - Court Judgment