Vimla @ Bimla Devi Jain Vs Bajrang Lal Jain

1 - Bajrang Lal Jain, S/o Sampat Lal Jain, Aged About 40 Years, OccupationBusiness, R/o Village- Kotra Road Raigarh, Tehsil and District Raigarh, Chhattisgarh.

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2 - Vimla Devi Jain, W/o Sampatlal Jain, Aged About 65 Years, OccupationHousewife, R/o Gudhiyari Shrinagar Mahesh Colony Raipur, DistrictRaigarh, Chhattisgarh.

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--- Respondents

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With

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2

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FA No. 76 of 2020

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1 - Vimla @ Bimla Devi Jain, W/o Sampatlal Jain, Aged About 65 Years, Occupation- Housewife, R/o- Gudhiyari Shrinagar, Mahesh Colony Raipur, District- Raipur, Chhattisgarh.

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--- Appellant

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Versus

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1 - Bajrang Lal Jain, S/o Sampat Lal Jain, Aged About 40 Years, Occupation- Business, R/o Village- Kotra, Road Raigarh, Tahsil & DistrictRaigarh, Chhattisgarh.

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2 - Savitri Agrawal, W/o Suresh Agrawal, Aged About 52 Years,

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3 - Sonika Agrawal, W/o Amit Agrawal, Aged About 29 Years,

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Both respondents No. 2 and 3 are by Caste- Agrawal, OccupationHousewife, R/o Pathalgaon, District- Jashpur, Chhattisgarh

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--- Respondent(s)

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For Appellants	: Mr. Sanjay Agrawal, Advocate in FA No. 75 of 2020 and Mr. Sourabh Sharma and Mr. Sourabh Gupta, Advocates in FA No. 76 of 2020
For Respondent(s)	: Mr. Sourabh Sharma along with Mr. Sourabh Gupta, Advocates in FA No. 75 of 2020 (for
	respondent No.2) and Mr. Sanjay Agrawal,
	Advocate in FA No. 76 of 2020 (for respondents
	No. 2 & 3).

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Hon'ble Smt. Justice Rajani Dubey

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Hon’ble Shri Justice Sachin Singh Rajput

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Judgment on Board

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Per Rajani Dubey, Judge

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11.03.2025

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Since the parties in both the cases are same, therefore, both the appeals are being heard together and are decided by this common judgment.

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The appeals i.e. FA No.75/2020 and FA No. 76/2020 have been filed against the judgment and decree dated 10.12.2019 passed by learned Additional District Judge, Jashpur, District- Jashpur (C.G.) in Civil Suit No. 1A/2015 whereby the suit filed by the plaintiff (respondent No. 1 herein) was partly allowed and sale deed executed on 09.08.2013 has been declared as null and void. The parties to the appeals shall be referred herein as per their description before the learned trial Court.

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The brief facts of the case as mentioned in both the appeals, are that the plaintiff/respondent No.1 filed a suit for declaration of title and declaring sale deed dated 19.08.2013 as null and void in respect of the property i.e. land bearing Khasra No. 05, area 0.024 hectare, situated at Village-Pathalgaon, Patwari halka No.09, Tahsil- Pathalgaon, District- Jashpur (C.G.).

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In plaint, it was pleaded that the grandfather of plaintiff namely Poonamchand Jain purchased land bearing Khasra No. 05, area 0.024 hec. in the names of Plaintiff and his mother- Vimla @ Bimla Devi Jain from Papinder Kaur and Gurudayal Singh on 28.02.1984 for sale consideration of Rs. 6000/- by registered sale deed and muted their names in revenue record till 09.05.2005. On the above mentioned property, construction work was done by plaintiff as well as in some parts by defendant No. 01- Vimla @ Bimla Devi Jain. It is further pleaded that on 09.06.2005 plaintiff executed a registered family

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settlement in the name of defendant No. 01 (Mother) and thereafter, defendant No. 01 recorded her name in the revenue record. Subsequently, defendant No. 01 filed an application before SubDivisional Officer for diversion of suit land in Revenue Case No. 263/A2/2002-03. After due inquiry, on 25.01.2003, Sub-Divisional passed order for diversion of land. Later on, defendant No. 01 filed an application before Collector seeking permission for the sale of land on 30.11.2012 and on 01.05.2013, permission was granted. Thereafter, defendant No. 01 sold the land and house & handed over the possession to defendants No. 02 and 03 for sale consideration of Rs. 65,18,860/- on 19.08.2013. Thereafter, the appellants filed suit for declaration of title and also for declaring the sale deed dated 19.08.2013 as null and void.

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The defendants No.1, 2 and 3 filed their joint written statement whereby they denied the averments made in the plaint. It was pleaded in the written statement that defendant No. 01 on 28.04.1984 purchased 0.024 hec. land bearing Khasra No. 327/6, 332/6D, 334/6, 336/1e, 336/2d, total Khasra-05 for sale consideration of Rs. 6,000/and also on 01.03.1983 purchased 0.028 hec land bearing Khasra No. 05 from Pavinder Kaur for sale consideration of Rs. 10,000/-. The disputed land was recorded in the names of both plaintiff and defendant No. 01. Thereafter, defendant No. 01 filed an application before Sub Divisional Officer for diversion of land in Revenue Case No. 263/A-2/2002-03 and after due inquiry, on 25.01.2003 order was passed by SDO for diversion of land. On 09.06.2005, plaintiff executed a registered Family settlement in the name of defendant No. 1 which in fact is a relinquishment deed and for the same defendant No. 1 has all

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the rights in the property. Thereafter, defendant No. 1 got rights in the property and she constructed house and shop on the said land and the property was in the possession of defendant No. 01. Later on, on 30.11.2012, she filed an application before Collector seeking permission for the sale of land and on 01.05.2013 permission was granted in this regard. Thereafter defendant No. 01 sold the land to defendants No. 2 and 3 for sale consideration of Rs. 65,18,860/- on 19.08.2013.

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On the basis of pleadings of the parties, learned trial Court framed the issues and recorded the statements of the witnesses and held that the sale deed executed on 19.08.2013 is against the provisions of law, unlawful and void. It is also held by learned trial Court that the plaintiff and defendants No. 2 and 3 do not have any title over the said land. Hence, both the appeals have been filed by the appellants.

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In FA No. 75 of 2020 - learned counsel for the appellants/defendants No. 2 & 3 submits that the learned trial Court while passing the impugned judgment and decree erred in declaring the sale deed executed on 19.08.2013 unlawful and void as defendant No. 1 has all the rights over the property. The present appellants are bonafide purchasers of the disputed property and also some additional construction has been done by the appellants. The appellants with whole family have been residing in the disputed property since long time. Therefore, the suit filed by the plaintiff deserve to be dismissed. The plaintiff has failed to prove that the disputed land was purchased by his grandfather in his name. The learned trial Court has erred in holding the sale deed as null and void as defendant No. 01 has executed the sale deed lawfully and after obtaining lawful permission

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from the Collector, she sold the land. Defendant No.1 filed application for diversion of land before Sub Divisional Officer, Revenue who after proper investigation has passed the order of diversion and, thereafter, the name of the defendant No. 01 was recorded in revenue record. The plaintiff did not challenge the registered family settlement (Ex. P/3) which shows that the plaintiff himself wants to transfer the land to defendant No. 01 and also the property which was purchased by his mother in the name of plaintiff at Raigarh. The learned trial Court did not clear the title over the disputed land that as to whether the title of land belongs to plaintiff or defendants. The plaintiff has not prayed for the possession of disputed land and only asked for the mere declaration of title which is not maintainable under section 34 of Specific Relief Act. The plaintiff has executed registered family Vyavastha Patra (Ex.P/3) in the name of defendant No. 1 where he himself has transferred all the rights over the property to defendant No. 1 and due to which, she had right to sell the land and the executed sale deed therefore held to be valid. The document (Ex.P/3) was admitted & exhibited without any objection & no objection raised with respect to its due admissibility, therefore the learned trial Court has committed illegality in holding that the document (Ex.P/3) is not admissible in Evidence as it was not duly stamped, under Indian Stamp Act. The document (Ex.P/3) filed by plaintiff, is duly registered document & got exhibited without any objection & it is not the case of plaintiff that document (Ex.P/3) is not duly stamped and, therefore doesn't conflict any title & also it is not prayed for declaration to the effect that Ex.P/3 is null & void & as such, finding of learned trial Court is perverse & document (Ex. P/3) is binding upon the plaintiff. It is well

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settled principles of law that deficient stamp if any is there in document (Ex. P/3), it is between state & parties and same could be meet out, therefore, the trial Court has committed illegality in holding that the document (Ex.P/3) doesn't confine appellants’ right on the property and, therefore, the said finding is perverse and against the law. The Court has every power and jurisdiction to impound the deed while passing the judgment and decree, as during course of entire trial there is no occasion to move any application for impounding as there is no objection ever raised at the time of exhibiting and admitting the document in evidence and read with the fact that deed (Ex. P/3) is registered document. Therefore, the impugned judgment and decree are liable to be set aside and if this Court finds that there is any necessity to impound the documents, the matter may be remanded back to the learned trial Court for this purpose.

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Reliance has been placed on the judgment of Hon’ble Supreme Court in the matter of G.M. Sahul Hameed Vs. Jayanthi R. Hegde reported in (2024) 7 SCC 719.

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In FA No. 76 of 2020 - learned counsel for the appellant/defendant No.1 submits that the plaintiff has failed to prove that the disputed land was purchased by his grandfather in his name. The learned trial Court has erred in holding the sale deed as null and void as defendant No. 1 has executed the sale deed lawfully and after obtaining lawful permission from the Collector, she sold the said land. The plaintiff has executed registered family Vyavastha Patra (Ex.P/3) in the name of defendant No. 1 where he himself has transferred all the rights over the property to defendant No. 1 due to which, she had right to sell the land and execute the sale deed. Defendant No. 1 filed application for

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diversion before SDO who after proper investigation, passed the order of diversion. The plaintiff has not challenged the registered Vyavastha Patra (Ex.P/3) which shows that he himself wants to transfer the land to defendant No. 1. Document (Ex.P/3) was admitted & exhibited without any objection & no objection. Thereofore, the learned trial Court wrongly dismissed the suit on the ground of improper stamp fee and it is well settled principles of law that if any stamp or court fee is improper then party has to be given chance to rectify the same. Hence, the impugned judgment and decree are liable to be set aside and if this Court finds that the document (Ex.P/3) is not properly stamped then the matter may be remanded back to learned trial Court to give one opportunity to the parties to get it duly stamped etc.

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Several notices were issued on the registered address of respondent No.1- Bajrang Lal Jain and the same were returned unserved with a note that he is not residing at the given address. Thereafter, summons were issued through paper publication. Despite that, no one appeared on behalf of respondent No. 1- Bajrang Lal Jain in both the appeals.

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Heard learned counsel for the appellants in both the appeals and perused the material placed on record.

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Before trial Court, respondent No.1- Bajrang Lal Jain filed suit for declaration of sale deed dated 19.08.2013 on 13.02.2015 on the ground that defendant No.1- Vimla Devi Jain without any title transferred the disputed property in favour of defendants No. 2 and 3. On the basis of pleadings of both the parties, learned trial Court framed the issues and out of which the relevant issues are as under:-

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ቅ०	वा�द ्ቚश्न	निनष्क्ቧ
1.	क्या� ्ቚनि�वा�द� ०-01ቛኋ�रा� ्ቚनि�वा�द� ०-02 एवा�03क� प्ቌ ेሰ� अन�सू�ची�-अ ेሰ� वानि� वा�द्ቇस्� भू�निेሰ क%65,18,860क� नि�फल � निदन�क 19.08.2013क% अवा(ध रूप सू� निवा्ቅया निकया� गया�	"ाሺ�-"
2.	क्या� उ्ሹ निवा्ቅया प्ቔ निदन��क19.08.2013अवा(ध एवा� शू�न्या ाሺ(?	'्ቚेሰ �नि�"
3.	क्या� उ्ሹ निवा्ቅया प्ቔ निदन��क19.08.2013क� ቛኋ�रा� ्ቚनि�वा�द� ०-02एवा�03क% वा�द्ቇस्� भू�निेሰ क3 क%ई स्वात्वा अधिधक�रा ्ቚ�्቎ नाሺ8 ाሺ9आ ाሺ(?	"ाሺ�-"

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11.Learned trial Court decided issue No. 1 in favour of the plaintiff holding that the document (Ex.P/3) is written on a non-judicial stamp of Rs. 100/- and is registered with the Sub Registrar, Pathalgaon. On the basis of the document (Ex.P/3), the plaintiff has renounced his right by giving his interest in the disputed land to his mother/Defendant No. 1, whose value is more than Rs. 100/- and hence its registration is mandatory as per Section 17 (1) (b) of the Registration Act and as per Section 23 of Schedule-01A of the Indian Stamp Act 1899, Defendant No. 1 would have got the title on the basis of Ex.P/3 only after paying the appropriate stamp duty of 7.5% of the market value of the disputed land. On Ex.P/3, the stamp duty of 7.5% of the market value of the disputed land has not been paid, due to which defendant No. 1 does not get any right over the disputed land. Therefore, the learned trial Court declared the sale deed dated 19.08.2013 as null and void on the ground that as per Ex.P/3, defendant No.1 did not get any right over

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the suit property and therefore, she has no power to sell the plaint in favour of defendants No.2 and 3.

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In the matter of G.M. Shahul Hameed Vs. Jayanthi R. Hegde; (2024) 7 SCC 719, Hon’ble Apex Court held in paras 17 and 27 as under:-

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“17. Despite the GPA having been admitted in evidence and marked as an exhibit without objection from the side of the appellant, we propose to hold for the reasons to follow that the trial court did have the authority to revisit and recall the process of admission and marking of the instrument, not in the sense of exercising a power of review under Section 114 read with Order 47 CPC but in exercise of its inherent power saved by Section 151 thereof, and that the other remedy made available by the 1957 Act was not required to be pursued by the appellant to fasten the respondent with the liability to pay the deficit duty and penalty.

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27. On the face of such an order, it does not leave any scope for doubt that on the date the GPA was admitted in evidence and marked as an exhibit, the trial court did not deliberate on its admissibility, much less applied its judicial mind, resulting in an absence of judicial determination. In the absence of a "decision" on the question of admissibility or, in other words, the trial court not having "decided" whether the GPA was sufficiently stamped, Section 35 of the 1957 Act cannot be called in aid by the respondent. For Section 35 to come into operation, the instrument must have been "admitted in evidence" upon a judicial determination. The words "judicial determination" have to be read into Section 35. Once there is

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such a determination, whether the determination is right or wrong cannot be examined except in the manner ordained by Section 35. However, in a case of "no judicial determination", Section 35 is not attracted.”

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13. Section 35 of the Indian Stamp Act, 1899 provides as under:-

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“35. Instruments not duly stamped inadmissible in evidence, etc.- No instrument chargeable with duty shall be admitted in evidence for any purpose 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:

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Provided that-

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(a) any such instrument [shall], 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;

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(b) where any person from whom a 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, then such receipt shall be

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admitted in evidence against him on payment of a penalty of one rupee by the person tendering it,

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(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,

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(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),

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(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 or any other provision of this Act.”

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In light of above judgment and the provisions contained under Section 35 of the Indian Stamp Act, it is clear that there is provision that after payment of due stamp or fee with penalty, document can be admitted in evidence.

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It is clear from the record of learned trial Court that on 27.01.2016, the plaintiff- Bajrang Lal Jain himself exhibited document (Ex.P/3) as Parivarik Vyawastha Patra dated 09.06.2005. Certified copy of Parivarik Vyawastha Patra dated 09.06.2005 was exhibited as Ex.P/3.

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In his cross-examination, in para 21, he admitted that, “21. य ा काሺन� सूाሺ�

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ाሺ( निक जब ेሰ= रा�यागढ़ ज�न� वा�ल� था� या� ज� र ा � था� उसू सूेሰया ेሰ�रा� ेሰ�� औरा ेሰ= एक प�रिरावा�रिराक

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व्यास्था�पक क� निनष्प�दन निकया� था�। य ा काሺन� गल� ाሺ( निक उ्ሹ व्यावास्था� प्ቔ ेሰ� ेሰ= पत्थालग��वा क3 सूभू�

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सू�पधिD परा ाሺक, अधिधक�रा क% अपन� ेሰ�� क% सूEप निदया� था�।

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श्न: उ्ሹ व्यावास्था� प्ቔ ेሰ� आपन� उ्ሹ जेሰ�न क% अपन� ेሰ�� क� न�ेሰ परा दज� करा�न� क� ब�रा� ेሰ� धिलखा�

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था� ?

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उDरा:- धिलखा� था�, सू�्ቌ� स्वा�G काሺ�� ाሺ( निक ेሰ= उसू आशूया सू� नाሺ8 धिलखा� था�। सू�्ቌ� स्वा�G काሺ�� ाሺ( निक ेሰ�रा� ेሰ��-निप�� न� काሺ� था� निक निवावा�निद� सू�पधिD परा ाሺेሰ ल%ग ल%न उठा�या�ग� औरा उन्ाሺ%न� ल%न उठा�या� था� औरा उन्ाሺ%न� काሺ� निक इसू निवावा�निद� जेሰ�न भूनिवाष्या ेሰ� जब निबक�ग� �% धिज�न� निाሺस्सू� आपक� ाሺ(, उ�न� निाሺस्सू� आपक% निेሰल�ग�, सू�्ቌ� प�नG काሺ�� ाሺ( निक या� सूब ब�� ेሰJधिखाक ाሺ9आ था�।”

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The learned trial Court only found that the document (Ex.P/3) is not properly valued and no proper stamp fee was paid and held that the defendant No. 1 did not get any right over the disputed property and only on this ground declared the registry as null and void. However, it is well settled principles of law that if any deficiency in stamp duty is found that the Court should impound the document and afford proper opportunity to the parties to pay the deficient stamp duty along with a penalty. Thus, the findings recorded by the learned trial Court, in the opinion of this Court, are not according to the facts and circumstances of the case.

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In the totality of the facts and circumstances of the case, the nature of dispute between the parties, the impugned judgment and decree dated 10.12.2019 passed by the learned trial Court are hereby set aside. The matter is remanded back to the trial Court concerned to decide the suit afresh in accordance with law after framing specific issue. Needless to state that the parties shall be allowed to amend their pleadings and

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adduce additional evidence on the issues so framed. The trial Court to decide the suit expeditiously, preferably within a period of six months from the date of appearance of the parties. It is made clear that nothing in this judgment shall be construed as an expression of opinion of this Court on merits of the case and the trial Court to decide the suit on the basis of pleadings and evidence of the parties strictly in accordance with law.

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18. Parties are directed to appear before the concerned trial Court on

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21.04.2025.

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The appeal stands allowed to the above extent. No order as to cost(s).

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Sd/Sd/-

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(Rajani Dubey) (Sachin Singh Rajput) Judge Judge

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RUCHI YADAV Digitally signed by RUCHIYADAVRuchi

Vimla @ Bimla Devi Jain v. Bajrang Lal Jain

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Vimla @ Bimla Devi Jain v. Bajrang Lal Jain

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